The Securities and Exchange Commission amended its new executive officer and director compensation disclosure rules in December 2006 and released Staff guidance on these rules in 2007. The substantial changes to the rules will likely increase the attention and scrutiny the SEC, investors and the public apply to proxy statements and annual reports during ongoing proxy and annual reporting seasons. The revised edition of the Executive Compensation Disclosure Handbook: A Practical Guide to the SEC's New Rulesprovides an overview of the most significant changes and requirements through mid-February 2007 under the new rules and guidance and offers practical advice to help companies understand, and comply with, the new disclosure requirements.

This Update provides a special preview of the revised portions of the February 2007 edition of the Executive Compensation Disclosure Handbook.

Overview: What Did the SEC's December 2006 Amendments Change? More Closely Align Equity Compensation Disclosure with FAS 123R. The FASB requires companies to recognize the cost of equity awards over the period in which an employee must provide service in exchange for the award under Statement of Financial Accounting Standards No. 123 (revised 2004) Share-Based Payment. The SEC amended the new rules in December 2006 to more closely align the reporting of equity awards in the Summary Compensation Table and the Director Compensation Table to the amounts that are disclosed in the financial statements under FAS 123R. Summary Compensation Table and Director Compensation Table. Before these amendments, the new rules required companies to disclose the full FAS 123R grant date fair value in these tables for the year in which the grant is made. Under these amendments, companies will disclose in the Stock Awards and Option Awards columns of the Summary Compensation Table and the Director Compensation Table the aggregate FAS 123R expense recognized for stock awards and option awards in the fiscal year, excluding the effect of the applicable expected forfeiture rate. Grants of Plan-Based Awards Table. Under these amendments, companies will report the full FAS 123R grant date fair value of each individual equity award in the Grants of Plan‑Based Awards Table, and disclose the same information in footnotes to the Director Compensation Table. Companies will also report the incremental FAS 123R fair value of any option or stock appreciation right that was repriced or otherwise materially modified during the last completed fiscal year, computed as of the repricing or modification date, and disclose the same information in footnotes to the Director Compensation Table. Compensation Discussion and Analysis. Now that the compensation reported in the Summary Compensation Table includes amounts for stock and option awards granted in earlier years for which the company recognized expense in the most recently completed fiscal year, companies must evaluate whether to include additional disclosure related to these prior-year awards in the CD&A, especially if their policies, practices and procedures varied in the earlier years as compared to the most recently completed fiscal year. In addition, companies should discuss in the CD&A matters relating to all programs, plans and practices, including, in particular, practices relating to timing of all equity compensation grants and selecting stock option exercise prices and other stock-based values. How Do These Amendments and SEC Staff Guidance Affect Company Procedures? Review Disclosure Controls and Procedures. Companies should review the adequacy of their disclosure controls and procedures for the required CEO and CFO certifications in light of the new rules. The Sarbanes-Oxley Act of 2002 requires that all public companies have robust disclosure controls and procedures to ensure quality public disclosures, which must now cover the CD&A, as well as the greatly expanded executive and director compensation disclosure and further disclosure required under the new rules. Closer Coordination With Accounting Department. The SEC's amendments approved in December 2006 require much greater coordination with companies' financial accounting departments to collect the required information regarding the expense recognized under FAS 123R for each of the named executive officers and directors. Are Current Controls and Procedures Adequate? To determine whether current disclosure controls and procedures are adequate, companies should be able to answer the following questions: Who will be collecting the new types of information required by the rules and how will they obtain this information? Are existing disclosure committees properly positioned for the tasks and do they include the right people? Are the right tools in place to produce the new disclosures? Who will be responsible for maintaining and analyzing all the information and ensuring that the CD&A correctly tells the company's compensation story and that other compensation disclosures are correct?

Summary Compensation Table

Salary and Bonus Columns. The SEC's recent amendments and Staff guidance changed how companies must disclose some amounts in the salary and bonus columns of the Summary Compensation Table.

• If Noncash Compensation Received in Lieu of Salary or Bonus, Generally Must Report as Salary or Bonus. As under the prior rules, the Summary Compensation Table must include the entire salary and bonus earned by each named executive officer during the last fiscal year. Any salary or bonus that the executive officer elects to receive in the form of stock or stock-based or other forms of noncash compensation must generally continue to be disclosed in the appropriate column of the Summary Compensation Table (e.g., in the Salary or Bonus column). In addition, companies must also footnote the applicable Salary or Bonus column to disclose that the award is reported in the Grants of Plan-Based Awards Table.

• Unless Within the Scope of FAS 123R. However, if the noncash compensation is within the scope of FAS 123R, then the company must report the award as a stock award or option award, as applicable, instead of including the value in the Salary or Bonus columns.
• Unless Value of Noncash Compensation Exceeds Amount Deferred. If the noncash compensation received in lieu of salary or bonus is not within the scope of FAS 123R, but the value of the noncash compensation exceeds the value of the amount deferred, the company must report the excess value in the appropriate column of the Summary Compensation Table (e.g., Stock Awards column).
• Also Report and Explain in Other Applicable Tables. The company should also report these awards, as applicable, in the Grants of Plan‑Based Awards Table, Outstanding Equity Awards at Fiscal Year-End Table and Option Exercises and Stock Vested Table, and explain in a footnote that the named executive officer received the award in lieu of salary or bonus.

Stock Awards and Option Awards Columns. As outlined above, the SEC also significantly changed how companies must disclose amounts in the Stock Awards and Option Awards columns of the Summary Compensation Table to more closely align the amounts disclosed in these columns with the amounts disclosed in the financial statements under FAS 123R.

• Disclose in Summary Compensation Table Aggregate FAS 123R Expense Recognized During Fiscal Year for Stock Awards and Option Awards. Companies must disclose the aggregate amounts recognized as compensation expense under FAS 123R for each fiscal year in each of the Stock Awards and Option Awards columns for each named executive officer. Compensation expense includes both amounts recorded as compensation expense in the income statement and any amount earned by the executive that the company capitalized on the balance sheet for the full year. A company should disclose the value of stock of a parent or subsidiary company, and options and other rights to purchase stock of a parent or subsidiary company, awarded to the company's named executive officers for services to the company in the same way.

  • Exclude Effect of Estimated Forfeitures. The company must exclude from the compensation cost reported in the Summary Compensation Table any decrease in value that relates to the applicable estimated forfeiture rate for service-based conditions.
  • Apply Same Valuation Assumptions Used for Financial Statements. A company must disclose the FAS 123R compensation cost calculated for financial statements, including the actual expected term valuation assumption that the company uses for the executives, if the company uses more than one group with respect to exercise and post‑vesting behaviors.
    • Disclose FAS 123R Valuation Assumptions by Footnote. Companies must disclose in a footnote to the applicable column the valuation assumptions used for the FAS 123R fair value of the awards (including awards granted in earlier fiscal years). Companies may do so by cross-reference to the discussion of the relevant FAS 123R valuation assumptions in their financial statements, footnotes to the financial statements or MD&A (or by a hyperlink if the proxy materials are made available on the Internet).
  • Include Effect of Stock Awards and Option Awards Forfeited During Fiscal Year. Companies must include the value of forfeited awards in calculating the compensation cost for the Stock Awards and Option Awards columns.
    • Amount Reported in Stock Awards and Option Awards Columns Could Be a Negative Number. Because companies must include the value of forfeited awards in calculating the compensation cost for the Stock Awards and Option Awards columns, the cost a company reports could be a negative number if the value of awards forfeited for the fiscal year exceeds the value of awards earned for that year. A negative value for stock awards or option awards will reduce the value disclosed in the Total Compensation column.
    • Disclose Forfeitures. Companies must disclose in a footnote to the applicable Stock Awards or Option Awards column the value of any stock award or option award forfeited during the fiscal year.
  • When to Include Expense for an Award with a Service Condition or Performance Condition? Disclosure of these awards in the Summary Compensation Table tracks a company's recognition of expense with respect to the awards for financial statement purposes under FAS 123R. Companies include the value of an award with a service condition over the vesting period. Companies include the value of an award with a performance condition when the performance becomes "probable."
    • Service Condition. A service condition is a condition affecting the vesting, exercisability, exercise price or other pertinent factors used in determining the fair value of an award that depends solely on the executive rendering service to the company for the requisite service period.
    • Performance Condition. A performance condition is a condition affecting the vesting, exercisability, exercise price or other pertinent factors used in determining the fair value of an award that relates to both:
      • the executive rendering services for an explicitly or implicitly specified period of time and
      • achieving a specified performance target that is defined solely by reference to the company's own operations or activities, or those of another company or group of companies (e.g., attaining a specified growth rate in return on assets, obtaining regulatory approval to market a specified product, selling shares in an initial public offering or other financial event or attaining a growth rate in earnings per share that exceeds the average growth rate in earnings per share of other entities in the same industry).
  • Special Rule for Named Executive Officers Eligible for Retirement. If a named executive officer's stock awards and/or option awards will accelerate and become fully vested and no longer subject to forfeiture at retirement and the named executive officer is eligible for retirement, the company must disclose as compensation in the Stock Awards and Option Awards columns, as applicable, the entire grant date fair value that the company recognized as expense in that fiscal year for any award granted. For awards granted in earlier fiscal years, the company must likewise disclose as compensation any remaining FAS 123R compensation expense recognized as expense in that fiscal year as a result of the named executive officers retirement eligibility.
  • FAS 123R Compensation Expense Includes Incremental Increases in Liability Award Value. For each award classified as a liability award under FAS 123R (e.g., awards settled only in cash), companies must remeasure the fair value of the award at each financial statement reporting date until the award is settled. Companies must now include in the amounts reported in the Stock Awards and Option Awards columns the incremental increase in value resulting from these remeasurements for the fiscal year.
  • Must Apply Modified Prospective Method for Awards Granted Before 2006. For awards granted before 2006, companies must use the modified prospective transition method under FAS 123R to determine fair value for compensation disclosure purposes, even if a company used a different method for financial statement reporting purposes. Under this method, companies recognize a proportionate share of the FAS 123 grant date fair value over those awards' remaining vesting period, if any. Companies include incremental expense for liability awards outstanding on the date the company adopted FAS 123R until the liability award settles. A company must exclude any adjustments to update cumulative compensation costs in the year it initially adopts FAS 123R.

May Affect Which Executive Officers Are "Named" By changing the amounts that a company must disclose in the Stock Awards and Option Awards columns of the Summary Compensation Table, these amendments also change the amount of compensation included in the Total Compensation column of the Summary Compensation Table. This change may affect which executive officers are among the three most highly compensated executive officers based on total compensation. These amendments may likewise affect which former executive officers companies must include as named executive officers.

Change in Pension Value and Nonqualified Deferred Compensation Earnings Column. The SEC Staff guidance clarified how companies should calculate amounts reported in the Change in Pension Value and Nonqualified Deferred Compensation Earnings column.

• How to Calculate Change in Pension Value? Change in pension value reflects the aggregate annual change in the actuarial present value of accumulated pension benefits under all of the company's defined benefit and actuarial plans. These plans include nonqualified and tax-qualified defined benefit plans, cash balance plans and supplemental executive retirement plans. The change in pension value does not include changes under any of the company's defined contribution plans, such as 401(k) plans.

  • Include Negative Amounts in Calculation, but Reported Amount Must Not Be Less Than Zero. Where a named executive officer participates in more than one pension plan, a company may subtract negative values from decreases in value of one or more plans in calculating the aggregate change in actuarial present value of the named executive officer's accumulated pension benefit. However, a company may not report a negative amount (i.e., less than zero) for the aggregate change in pension value reported in the Summary Compensation Table, but may disclose any negative amount in a footnote to this column.
  • Compute Change in Value Using Financial Statement Assumptions. A company computes the aggregate annual change using the same assumptions and measurement periods that it used for its audited financial statements for the applicable fiscal year. Basically, the annual change equals the difference between the accumulated benefit amount disclosed in the Pension Benefits Table (discussed below) for the subject fiscal year and the accumulated benefit amount that was or would have been disclosed for the prior fiscal year.
  • Include Value of Any Distributions. If a named executive officer received a distribution, in-service or otherwise, under any company pension plan during the fiscal year, the company should include the value of the distribution in determining the increase in pension value.

All Other Compensation Column. The SEC Staff guidance also clarified how companies should treat certain perquisites in the All Other Compensation column.

• If Including Perquisites in All Other Compensation Column, Must Identify Each by Footnote. If a company includes the value of perquisites or personal benefits in the amount reported in the All Other Compensation column (i.e., because the aggregate value is equal to or greater than $10,000), the company must separately identify in a footnote to the All Other Compensation column each perquisite or personal benefit in a manner that describes the particular nature of the benefit received (for example, travel and entertainment is too broad if the personal benefit consisted of clothing, jewelry, artwork, theater tickets and housekeeping services).

  • Must Identify Perquisites With Zero Cost. If a company includes the value of perquisites or personal benefits in the All Other Compensation column, the company must also identify any perquisite or personal benefit with zero or nominal aggregate incremental cost to the company, even though these benefits did not increase the value included in All Other Compensation.
  • Fully Reimbursed Items Are Not Perks. If the named executive officer fully reimbursed the company for the actual total cost of an item, the company should not treat the item as a perquisite or other personal benefit, and should not include the value of the item or identify it by type.

Grants of Plan-Based Awards Table

The SEC's December 2006 amendments and Staff guidance affect how companies must disclose equity and cash incentive awards in the Grants of Plan-Based Awards Table.

New Column for FAS 123R Grant Date Fair Value of Equity Awards. Under these amendments, companies will report the full FAS 123R grant date fair value of each individual equity award in the Grants of Plan-Based Awards Table.

• Disclose Each Award Separately. A company must disclose each award granted during the fiscal year as a separate line item in the Grants of Plan-Based Awards Table. If awards were granted under more than one plan, the company must indicate the plan under which each award was made. For purposes of this table, companies should treat any reload grants as new grants.

• Include Grant Date and Grant Date Fair Value for Equity-Based Awards Only. A company is required to include a date in the Grant Date column and a value in the Grant Date Fair Value of Stock and Option Awards column for equity-based awards only. For other types of awards, the company may leave these columns blank.

Disclose Threshold, Target and Maximum Payouts for Incentive Plan Awards. With respect to incentive plan awards, both non-equity and equity-based, "threshold" refers to the minimum amount payable for a certain level of performance under a plan; "target" refers to the amount payable if the specified performance target(s) are reached; and "maximum" refers to the maximum payout possible under a plan. For non-equity incentive plans, estimated future payouts are expressed in dollars and for equity incentive plans, in shares or number of shares underlying stock options.

• Must Disclose Threshold, Target and Maximum Amounts, Even if Actual Amount Already Determined. A company must disclose threshold, target and maximum amounts, including for an award that the company already paid or settled, even though the company also discloses in the Summary Compensation Table the actual amount of the award earned. If a company makes all non-equity incentive plan awards under an annual plan and these awards are earned in the same year that the company granted the award, the company may change the caption for these columns to "Estimated Possible Payouts Under Non-Equity Incentive Plan Awards."

• What if an Award Does Not Provide for Threshold, Target and Maximum Payouts? If an award provides for only a single estimated payout, the company should report that amount in the Target column. If an incentive plan award does not provide for threshold or maximum payouts, the company should leave those columns blank and explain in a footnote. For an equity incentive plan award denominated in cash but payable only in shares, a company should describe the payment terms in a footnote. If all the awards included in the column are similarly denominated in cash but payable only in shares, the company may choose to change the caption to "($)" and report the value of the awards instead of the number of shares.
• If Target Amount Not Determinable, Provide Estimate. If a target amount is not determinable, companies must provide a representative amount based on the company's most recent fiscal year's performance.

Disclose as Separate Grants Any Option Awards Repriced or Materially Modified During Fiscal Year. For any outstanding option awards that a company repriced or materially modified during the fiscal year, companies must disclose as a separate grant the incremental increase in fair value calculated as of the repricing or modification date under FAS 123R. This requirement does not apply to any repricing that occurs automatically through a pre-existing formula or mechanism specified in the plan or award or any modification that equalized fair value before and after, such as an anti‑dilution provision.

• Must Also Discuss in CD&A and Narrative. The company must also discuss any repricing or modification transactions in the CD&A and in the narrative disclosure that follows the Summary Compensation Table and Grants of Plan-Based Awards Table.

Outstanding Equity Awards at Fiscal Year-End Table

Disclose Unvested In-Kind Earnings as Separate Stock Awards. The SEC Staff guidance clarified that companies must include in stock award disclosure as separate stock awards any outstanding in-kind earnings on stock awards that have earned share dividends or share dividend equivalents, unless these in-kind earnings were vested when declared or vested during the fiscal year.

Option Exercises and Stock Vested Table

Include Value of Vested In-Kind Earnings on Stock Awards. The SEC Staff guidance clarified that companies must include in the amount disclosed in the Stock Awards columns the value of any in-kind earning on stock awards that have earned share dividends or dividend equivalents that were vested when declared or that vested during the fiscal year.

Include Total Shares Subject to Stock Appreciation Right. The SEC Staff guidance also clarified that company should include in the amount disclosed in the Option Awards columns the total number of shares subject to a stock appreciation right that was exercised or settled during the fiscal year. The company may explain that the named executive officer actually received a smaller "net" number of shares in a footnote or in the narrative disclosure.

Pension Benefits Table

For Present Value of Accumulated Benefit, Use Earliest Age for Retirement Without Reduction. The SEC Staff guidance clarified that in calculating the present value of the accumulated pension benefit, a company must assume that retirement age is the earliest time at which a participant may retire under the plan without any benefit reduction due to age. The company may choose to include information for a later "normal" retirement age in an additional column.

Must Use Financial Statement Assumptions and Ignore Pre-Retirement Decrements. The assumptions used for financial statement reporting purposes that the company should use for calculating the actuarial present value are the discount rate, the lump sum interest rate (if applicable), post-retirement mortality and payment distribution assumptions. The company should ignore pre-retirement decrements for purposes of these calculations.

Disclose Contingent Benefits as Potential Post-Employment Payments. The company should generally describe contingent benefits arising on death, early retirement or other termination of employment events as part of the narrative disclosure of potential post-termination payments.

Nonqualified Deferred Compensation Table

Clarified Guidance on Not Double Counting Deferred Compensation. To reconcile the Nonqualified Deferred Compensation Table with the Summary Compensation Table, companies must disclose in a footnote to the Nonqualified Deferred Compensation Table the amount of any contributions or earnings for the most recent fiscal year that were reported as compensation in the Summary Compensation Table. The SEC Staff clarified that the requirements for companies to also disclose the extent to which the aggregate deferred compensation balance was included in amounts reported in the Summary Compensation Table for prior years only applies going forward for amounts that were actually reported in the Summary Compensation Table under these new rules.

Narrative Disclosure Requirements for Potential Post-Termination Payments

Disclose Contingent Pension Plan Benefits as Potential Post-Employment Payments. The SEC Staff guidance clarified that companies must disclose any contingent benefit arising on a named executive officer's early retirement, death or termination of employment under the company's pension plans in which the named executive officer participates.

Provide Definitions of any Defined Terms for Triggering Events. Companies should provide specific definitions or explanations of any defined terms for triggering events, such as change in control, cause or good reason.

Director Compensation Table

Disclose in Director Compensation Table Aggregate FAS 123R Expense Recognized During Fiscal Year for Stock Awards and Option Awards. Under the SEC's December 2006 amendments, companies must disclose the aggregate amounts recognized as compensation expense under FAS 123R for the fiscal year in the Stock Awards and Option Awards columns of the Director Compensation Table.

• Exclude Effect of Estimated Forfeitures. The company must exclude from the compensation cost reported in the Stock Awards and Option Awards columns of the Director Compensation Table any decrease in value that relates to the applicable estimated forfeiture rate for service-based conditions.

• Include Effect of Stock Awards and Option Awards Forfeited During Fiscal Year. Companies must include the value of awards forfeited by each director in calculating the compensation cost for the Stock Awards and Option Awards columns for that director.
  • Amount Reported in Stock Awards and Option Awards Columns Could Be a Negative Number. Because companies must include the value of forfeited awards in calculating the compensation cost for the Stock Awards and Option Awards columns of the Director Compensation Table, the cost a company reports could be a negative number if the value of awards forfeited for the fiscal year exceeds the value of awards earned for that year. A negative value for stock awards or option awards will reduce the value disclosed in the Total Compensation column of the Director Compensation Table.
• FAS 123R Compensation Expense Includes Incremental Increases in Liability Award Value. For each award classified as a liability award under FAS 123R (e.g., awards settled only in cash), companies must remeasure the fair value of the award at each financial statement reporting date until the award is settled. Companies must now include in the amounts reported in the Stock Awards and Option Awards columns of the Director Compensation Table the incremental increase in value resulting from these remeasurements for the fiscal year.
• Include Incremental Expense for Any Option Award Repriced or Materially Modified During Fiscal Year. In addition, if a company repriced or otherwise materially modified any stock or option awards held by a director during the fiscal year, the company must also include in the table the incremental increase in fair value computed as of the repricing or modification date under FAS 123R.

More Information Required in Footnotes to Director Compensation Table. The SEC's December 2006 amendments require companies to disclose more details about director stock and option awards in footnotes to the Director Compensation Table.

• Footnote Grant Date Fair Value for Each Stock Award and Option Award. The SEC's December 2006 amendments require companies to footnote the Stock Awards and Option Awards columns for each director to disclose for each award granted to the director during the fiscal year the grant date fair value of that award calculated in accordance with FAS 123R.

• Footnote Any Option Award Repriced or Materially Modified During Fiscal Year. In addition, if a company repriced or otherwise materially modified any stock or option awards held by a director during the fiscal year, the company must also disclose as a separate grant in a footnote the incremental increase in fair value computed as of the repricing or modification date under FAS 123R. This requirement does not apply to any repricing that occurs automatically through a pre-existing formula or mechanism specified in the plan or award or any modification that equalized fair value before and after, such as an anti-dilution provision.
• Footnote Aggregate Fiscal Year-End Holdings. Companies must also disclose in a footnote the aggregate number of shares subject to outstanding stock awards and option awards held by each director at the end of the most recent fiscal year.
• Footnote Any Stock Awards or Option Awards Forfeiture. Companies must disclose in a footnote to the applicable Stock Awards or Option Awards column the value of any stock award or option award forfeited by a director during the fiscal year.
• Footnote Actual FAS 123R Valuation Assumptions. A company must disclose in a footnote to the applicable column the actual valuation assumptions the company used to calculate the FAS 123R fair value of the awards for financial statement purposes (including for awards granted in earlier fiscal years for which the company recognized expense in the fiscal year). Companies may do so by cross-reference to the discussion of the relevant FAS 123R valuation assumptions in their financial statements, footnotes to the financial statements or MD&A (or by a hyperlink if the proxy materials are made available on the Internet).

Additional SEC Staff Guidance Clarifies Director Compensation Disclosure Requirements Narrative Disclosure Should Discuss Director Equity Compensation Practices. Companies must also disclose and discuss any equity compensation timing or pricing practices for director equity compensation, analogous to the disclosure required for named executive officers in the CD&A. Must Disclose Compensation for All Individuals Who Served as Directors During Fiscal Year. The SEC Staff guidance clarified that companies must include in the Director Compensation Table each person who served as a director for any part of the fiscal year, even if that person was no longer serving as a director at the end of the fiscal year. No Disclosure Required for Directors Who Are Also Executive Officers, Even if Not Named. Companies can omit from the Director Compensation Table compensation information for any director who also serves as a named executive officer if they disclose in a footnote to the Summary Compensation Table any amounts received by the named executive officer for services as a director (same as under the prior rules). Companies can also omit from this table compensation information for any director who serves an executive officer who is not a named executive officer if they disclose in a footnote to the Director Compensation Table or in the narrative that the executive officer did not receive any additional compensation for services as a director. Disclose Compensation for Consulting Arrangements. A company must disclose in the Director Compensation Table any compensation to a director pursuant to a consulting arrangement between the director and the company even for services other than as a director (e.g., as an economist).

Additional Information

You can find a copy of the full text of the SEC's final rule release for the December 2006 amendments at http://www.sec.gov/rules/final/2006/33-8765.pdf. You can find a copy of the full text of the SEC's Staff guidance on Item 402 of Regulation S-K (released January 24, 2007, updated February 12, 2007) at http://www.sec.gov/divisions/corpfin/faqs/execcompqa.pdf. You can find discussions of other recent cases, laws, regulations and rule proposals of interest to public companies on our website.

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