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SEC Proposal for Expanded Executive Compensation and Related Party Disclosure (PDF)

3 pages. Excerpt: [Orrick wants to] emphasize some of the hottest compensation issues of the moment that are left untouched by the proposal.

Additional Guidance on Code Section 409A: Strategies for Dealing with Discounted Stock Options

Excerpt: This is the third installment in [Orrick's] series of articles concerning the impact of new Section 409A of the Internal Revenue Code ('Section 409A'). .... This installment concerns 'fixes' for discounted stock options. Please note, while the focus of this article is on discounted stock options, the same basic principals would apply to discounted stock appreciation rights as well.

Annual Reporting Requirements for Incentive Stock Options and Employee Stock Purchase Plans

"[C]ompanies are required to report the first transfer of legal title to any share purchased under an ESPP plan where the purchase price paid for the share was [1] less than 100% of the fair market value on the date of grant or [2] not fixed or determinable on the date of grant.... Participant information statements may either be delivered or mailed to the participant's last known address or, if the participant has given his or her consent to receive the statement electronically, provided in electronic format."

NYSE and Nasdaq Propose Clawback Rule Listing Standards: What Public Companies Need to Know

"The proposed listing standards for both NYSE and Nasdaq: model the requirements of the Clawback Rules, with no additional standards or disclosure obligations; and will become effective on the date the SEC approves them, which will occur no later than November 28, 2023."

What You Need to Know About the SEC's Final Clawback Rules

"What are the new rules? ... What type of compensation is covered? ... What is a financial reporting measure? ... Which executives and what periods are covered? ... What must be recovered? ... How is it recovered? ... What types of restatements are covered? ... What must be disclosed? ... When to comply? ... How do the new rules compare to existing clawback requirements and proxy advisor guidance? [Side-by-side chart.] ... What should a compensation clawback policy look like? [Sample policy provided.]"

CEO Pay Ratio Checklist (PDF)

"Consider identifying a date that best reflects the demographics of the company.... Confirm with local counsel if there are any data privacy laws in that country that would prohibit collection of information.... The de minimis exemption may be useful where it impacts the median.... Annualizing the compensation of full-time and permanent full time and part-time employees is probably not worth the time and effort.... Using estimates or statistical sampling may be overly burdensome for many companies and not actually save any time.... In drafting the disclosure, consider impact on investor and employee relations."

Does Repeal of the Section 162(m) Performance-Based Exception Signal the End of Performance Pay?

"The following plan provisions will need to be evaluated due to the new changes: [1] Compensation Committee composition; [2] Individual award limits; [3] Performance goals and exclusions and their pre-establishment; [4] Compensation Committee certification of satisfaction of performance goals; and [5] Prohibition on the use of positive discretion."

SEC Relaxes Pay Ratio Rules to Facilitate 2018 Proxy Disclosures

"The SEC expanded the flexibility afforded by the pay ratio disclosure rule. The latest guidance should alleviate some compliance costs and administrative burdens for many issuers.... Now that the pay-ratio rule is confirmed to be in place for reporting in 2018, it is rather unlikely that Congress will take any immediate action that would preclude pay-ratio reporting or otherwise lead the SEC to reconsider the pay ratio rules."

Fiduciary Rule Delay Provides Excellent Opportunity to Negotiate Stronger Indemnities

"This delay, and the confusion swirling around if and when the DOL fiduciary rule will become applicable, is giving plan sponsors a window of time to renegotiate their contractual arrangements with their 401(k) service providers relating to investment advice. This renegotiation should include a review, and a strengthening, of the service provider's indemnification for its fiduciary investment advice."

IRS Updates Golden Parachute Audit Guide

"The [2017 Audit Techniques Guide (ATG)] is the first update released since the release of the IRS's initial 2005 ATG ... The ATG includes: [1] an overview of the rules and the consequences of potential adjustments in the audit; [2] the documentation an IRS agent should review as background regarding a corporation's golden parachute payments; and [3] the nine steps involved in a parachute examination, including an examination flow chart. The 2017 ATG expands and updates the list of documents for IRS examiners to review in connection with a golden parachute examination."