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Practical Guide to SEC Proxy and Compensation Rules, Sixth Edition Practical Guide to SEC Proxy and Compensation Rules, Sixth Edition

Practical Guide to SEC Proxy and Compensation Rules, Sixth Edition

By Amy L. Goodman, Esq., John F. Olson, Esq., Lisa A. Fontenot
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Overview

A Practical Guide to SEC Proxy and Compensation Rules

A Practical Guide to SEC Proxy and Compensation Rules, Sixth Edition is designed to meet the special needs of corporate officers and other professionals who must understand and master the latest changes in compensation disclosure and related party disclosure rules, including requirements and initial SEC implementing rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Current, comprehensive and reliable, the Guide prepares you to handle both common issues and unexpected situations. Contributions from the country's leading compensation and proxy experts analyze:

  • Executive compensation tables
  • Compensation disclosure and analysis
  • Other proxy disclosure requirements
  • E-proxy rules
  • Executive compensation under IRC Section 162(m)
  • And much more!

Organized for quick, easy access to all the issues and areas you’re likely to encounter in your daily work, A Practical Guide to SEC Proxy and Compensation Rules:

  • Dissects each compensation table individually—the summary compensation table, the option and SAR tables, the long-term incentive plan table—and alerts you to the perils and pitfalls of each one
  • Walks you through preparation of the Compensation Disclosure and Analysis
  • Explains the latest interpretations under the SEC's shareholder proposal rule and institutional investor initiatives and what they mean for the coming proxy season
  • Helps you tackle planning concerns that have arisen in the executive compensation context, including strategies for handling shareholder proposals regarding executive compensation and obtaining shareholder approval of stock option plans

The Sixth Edition reflects the latest SEC and IRS regulations, guidance, interpretations and disclosure practices. It adds a new chapter
focused on developments and practices relating to required public company “say-on-pay” advisory votes pursuant to the Dodd-Frank Act. Another new chapter addresses director qualifications and Board leadership, diversity, and risk oversight disclosures.

This one-volume guide will help you prepare required disclosures as well as make long-range plans that comply fully with regulations and positions taken by the SEC more quickly and completely than ever before. In addition, we’ve updated the Appendices to bring you the latest rules and relevant primary source material.

Note: Online subscriptions are for three-month periods.

Previous Edition: Practical Guide to SEC Proxy and Compensation Rules, Fifth Edition ISBN 9780735598959

Pages 1754
Last Updated 11/15/2018
Update Frequency Annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781543806755
SKU 10070444-7777
Publish Frequency Annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
SKU 000000000010071675
Table of Contents

PART I - EXECUTIVE COMPENSATION

Chapter 1. AN OVERVIEW OF THE EXECUTIVE COMPENSATION AND DISCLOSURE RULES by Steven J. Sabow and Mark A. Borges

  • 1.01 Introduction
  • 1.02 Current Rules
  • 1.03 Impact on Compensation Committee Process
  • 1.04 Impact on Executive Compensation Programs
  • 1.05 Directors’ Compensation
  • 1.06 Evolving Compensation Landscape

Chapter 2. PREPARING THE EXECUTIVE COMPENSATION TABLES by W. Alan Kailer and Mark Borges

  • 2.01 Introduction
  • 2.02 Applicability of the Rules
  • 2.03 Specific Requirements
  • 2.04 The Exhibits
  • Exhibit 1 Required Disclosure by Type of Compensation or Plan
  • Exhibit 2 Annotated Tabular Disclosure
  • Exhibit 3 Key Definitions

Chapter 3. COMPENSATION DISCUSSION AND ANALYSIS by Robert M. Hayward, and Robert E. Goedert

  • 3.01 Introduction
  • 3.02 Gathering the Facts
  • 3.03 Preparing a Draft Compensation Discussion and Analysis
  • 3.04 SEC Staff Guidance
  • 3.05 Disclosure Requirements Regarding Compensation Consultants and Risk Management and Executive Compensation 
  • 3.06 Impact of the Dodd-Frank Act
  • 3.07 Why You Should Care

Chapter 4.A SAY-ON PAY REQUIREMENTS AND CONSIDERATIONS by Sean C. Feller and Dina R. Bernstein

  • 4A.01 Say-on-Pay
  • 4A.02 Say-on-Frequency
  • 4A.03 Say-on-Golden Parachutes

Chapter 4B PAY RATIO DISCLOSURES by Krista P. Hanvey and Lilias Lee

  • 4B.01 General Pay Ratio Disclosure Requirements
  • 4B.02 Pay Ratio calculations
  • 4B.03 Disclosure Considerations

Chapter 5. EXECUTIVE COMPENSATION DISCLOSURE UNDER INTERNAL REVENUE CODE SECTION 162(m) by Edward E. Bintz and Douglas A. Pelley

  • 5.01 The Tax Cuts and Jobs Act
  • 5.02 Section 162(m)
  • 5.03 Summary of Key  TCJA changes to Section 162(m)
  • 5.04  Limited Grandfathering Rule

 
Chapter 6. RULES APPLICABLE TO NONQUALIFIED DEFERRED COMPENSATION by Michael J. Collins

  • 6.01 Background
  • 6.02 What Is Deferred Compensation?
  • 6.03 What Rules Apply to Deferred Compensation Under Section 409A?
  • 6.04 Special Rules for Equity Compensation
  • 6.05 Consequences of Violating Code Section 409A
  • 6.06 IRS Correction Programs

Chapter 7. SPECIAL CONSIDERATIONS IN ADOPTING AND AMENDING EMPLOYEE STOCK PLANS by Renata J. Ferrari and Craig E. Marcus

  • 7.01 Introduction
  • 7.02 Amending and Adopting Plans
  • 7.03 Additional Disclosure Concerning Equity Compensation
  • 7.04 Listing Requirements
  • 7.05 Institutional Shareholders
  • 7.06 Conclusion

Chapter 8. ACCOUNTING FOR STOCK-BASED COMPENSATION by Benjamin S. Neuhausen, Michael S. Kesner, and Sandie Kim Kulick

  • 8.01 Introduction
  • 8.02 Summary of FASB Statement No. 123(R) (Codified as ASC 718)
  • Exhibit 1 Illustration of Accounting for Stock-Based Compensation

PART II - PROXY RULES

Chapter 9. AN OVERVIEW OF THE PROXY SOLICITATION RULES by Laurie L. Green and Grant J. Levine

  • 9.01 Introduction
  • 9.02 Overview of the Proxy Solicitation Process
  • 9.03 Shareholder Access
  • 9.04 E-Proxy
  • 9.05 Shareholder Lists
  • 9.06 Bona Fide Nominee Rule and Short Slates
  • 9.07 Unbundling of Related Proposals
  • 9.08 SLB No. 14: Rule 14a-8 Interpretations
  • 9.09 Exempt Solicitations and Shareholder Communications
  • 9.10 Shareholder Activism

Chapter 10. THE SHAREHOLDER COMMUNICATIONS PROXY RULES AND THEIR PRACTICAL EFFECT ON SHAREHOLDER ACTIVISM AND PROXY CONTESTS by Steven A. Rosenblum and Sabastian V. Niles

  • 10.01 Introduction
  • 10.02 The Shareholder Communications Proxy Rules and Subsequent Reforms and Proposals
  • 10.03 Proxy Contests and Shareholder Activism
  • 10.04 Recommendations
  • 10.05 Conclusion
  • Exhibit 1 Model Bylaws for Advance Notice of Stockholder Business and Nominations

Chapter 11 “STREET NAME” REGISTRATION & THE PROXY SOLICITATION PROCESS by John C. Wilcox, John J. Purcell, Hye-Won Choi, and Niels Holch

  • 11.01 Introduction
  • 11.02 “Legal” vs. “Beneficial” Ownership of Stock
  • 11.03 Assertion of “Legal” Rights by “Beneficial” Owners
  • 11.04 Tabulation Issues
  • 11.05 Post–Record Date Sales and Share Lending
  • 11.06 Conclusion
  • Exhibit 1 Custodial Ownership Chart
  • Exhibit 2 Sample DTC Participant Request for Stocklist Demand Letter—Delaware Corporation
  • Exhibit 3 Sample DTC Stocklist Demand Letter—Delaware Corporation
  • Exhibit 4 TIAA-CREF Securities Lending Policy

Chapter 12. THE SHAREHOLDER PROPOSAL PROCESS by Keir D. Gumbs and Elizabeth A. Ising

  • 12.01 Introduction
  • 12.02 History of the Shareholder Proposal Rule
  • 12.03 Procedural Elements of the Shareholder Proposal Process
  • 12.04 Binding Bylaw Amendments
  • 12.05 Proposals Contrary to the Proxy Rules and Regulations
  • 12.06 The Ordinary Business Exclusion
  • 12.07 Proposals Relating to the Election of Directors
  • 12.08 Substantial Implementation
  • 12.09 Other Bases for Exclusion
  • 12.10 Advance Notice Bylaws, Proposals from the Floor, and Discretionary Voting Authority
  • Exhibit 1 Staff Legal Bulletin No. 14 (July 13, 2001)
  • Exhibit 2 Staff Legal Bulletin No. 14A (July 12, 2002)
  • Exhibit 3 Staff Legal Bulletin No. 14B (September 15, 2004)
  • Exhibit 4 Staff Legal Bulletin No. 14C (June 28, 2005)
  • Exhibit 5 Staff Legal Bulletin No. 14D (November 7, 2008)
  • Exhibit 6 Staff Legal Bulletin No. 14E (October 27, 2009)
  • Exhibit 7 Staff Legal Bulletin No. 14F (October 18, 2011)
  • Exhibit 8 Staff Legal Bulletin No. 14G (October 16, 2012)
  • Exhibit 9 Staff Legal Bulletin No. 14H (October 22, 2015)
  • Exhibit 10 Staff Legal Bulletin No.14I (November 1, 2017)

Chapter 13. E-PROXY, ELECTRONIC COMMUNICATIONS,AND VOTING by Keir D. Gumbs and Andrew Brady

  • 13.01 Introduction
  • 13.02 Electronic Delivery of Proxy Materials Under Rule 14a-16
  • 13.03 Electronic Delivery Outside of Rule 14a-16
  • 13.04 Electronic Voting
  • 13.05 Electronic Stockholders’ Meetings

Chapter 14. AUDIT COMMITTEE DISCLOSURE AND RELATED REQUIREMENTS by Lisa A. Fontenot, Michael J. Scanlon, and Michael A. Titera

  • 14.01 Introduction
  • 14.02 Audit Committee Report
  • 14.03 Other Audit Committee Disclosures
  • 14.04 Disclosures Relating to the Outside Auditor
  • 14.05 Audit Committee Charter Disclosure Requirements
  • 14.06 Audit Committee Samples: Pre-Approval Policies, Questionnaires, Charters, and Checklist
  • 14.07 SEC 2015 Concept Release on Enhanced Audit Committees
  • 14.08 Audit Committee Samples, Pre-Approval Policies, Questionnaires, Charters, and Checklist

Chapter 15. DIRECTOR QUALIFICATIONS; BOARD LEADERSHIP; DIVERSITY AND RISK OVERSIGHT by Lori Zyskowski

  • 15.01 Introduction
  • 15.02 Selected Proxy Statement Disclosure Examples
  • 15.03 Conclusions and Recommended Practices

Chapter 16. DIRECTOR INDEPENDENCE REQUIREMENTS by Anne G. Plimpton

  • 16.01 Introduction
  • 16.02 Director Independence and Related Requirements
  • 16.03 IPO Phase-In
  • 16.04 Exceptions
  • 16.05 Ability to Cure
  • 16.06 Working With the Various Definitions
  • Exhibit 1 Trading Markets, Securities, and Tax Standards (as of June 1, 2018)
  • Exhibit 2 Other Independence Standards (as of June 1, 2018)

Chapter 17. DISCLOSURE OF RELATED PERSON TRANSACTIONS by Anne G. Plimpton

  • 17.01 Introduction
  • 17.02 Key Definitions and Parameters
  • 17.03 Exclusions and Exceptions
  • 17.04 Policies and Procedures for Review, Approval, or Ratification of Transactions
  • 17.05 Independence Determinations
  • 17.06 Action Items

Chapter 18. PROXY DISCLOSURE EFFECTIVENESS TRANSACTIONS by Aaron Briggs and Irving S.Gomez

  • 18.01 Proxy Statement as Communication
  • 18.02 Why Should You Care About Disclosure Effectiveness?
  • 18.03 How to Think About the Content
  • 18.04 Taking the “Look and Feel” of Your Document to a New Level
  • 18.05 Legal Considerations When Revamping Your Disclosures
  • 18.06 Practical Considerations When Revamping Your Proxy Disclosures
  • Exhibit 1 Selected Performance and Strategy Disclosure Examples
  • Exhibit 2 Selected Investor Outreach Disclosure Examples
  • Exhibit 3 Selected Succession Planning Disclosure
  • Exhibit 4 Selected Board Operations Disclosure Examples
  • Exhibit 5 Selected Director Qualifications/Experience Disclosure Examples
  • Exhibit 6 Selected Board Diversity Disclosure Examples
  • Exhibit 7 Selected Board Refreshment Disclosure Examples
  • Exhibit 8 Selected Sustainability Disclosure Examples
  • Exhibit 9 Selected Examples of Effective Use of Pictures
  • Exhibit 10 Selected Examples of Effective Use of Color

APPENDICES

  • Appendix A: SEC Executive Compensation and Corporate Governance Disclosure Rules—Regulation S-K Items 401 through 407
  • Appendix B: Text of Selected SEC Proxy Rules
  • Appendix C: SEC Rule 14a-16 Internet Availability of Proxy Materials
  • Appendix D: Selected Executive Compensation, Corporate Governance and Other Disclosure Provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Excerpts)
  • Appendix E: Department of Labor Interpretative Bulletins relating to the Employee Retirement Income Security Act of 1974 (July 21, 1994)
  • Appendix F: SEC Release No. 34-40018 (May 21, 1998) Final Rule: Amendments to Rules on Shareholder Proposals
  • Appendix G: Internal Revenue Service Regulations Under Section 162(m) and IRS Revenue Ruling 2007—I.R.B. 2007-25 regarding Covered Employees Under Section 162(m)(3)
  • Appendix H: The Sarbanes-Oxley Act of 2002 (Excerpts)
  • Appendix I: SEC Release No. 33-8183 (January 28, 2003) Final Rule: Strengthening the Commission’s Requirements Regarding Auditor Independence (Excerpt)
  • Appendix J: Selected Requirements for Disclosure of Equity Compensation Plan Information
  • Appendix K: NYSE Corporate Governance ListingStandards— Section 303A of NYSE Listed Company Manual
  • Appendix L: NYSE Rule 452—Giving Proxies by Member Organization
  • Appendix M: The Nasdaq Stock Market Corporate Governance Rules and Associated Interpretative Material
  • Appendix N: ARRA (TARP) Executive Compensation and Say on Pay Requirements Index
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