In welcome news, Delaware recently amended its General Corporation Law (DGCL) to increase flexibility for delegating share award granting authority. The amendments became effective on August 1, 2022. The changes expand the elements of granting share awards that a board of directors may delegate, including, and most notably, the authority to determine the terms and conditions of the awards. If a board of directors wants to take advantage of the increased flexibility provided by the…
On December 15, 20211, the Securities and Exchange Commission (âSECâ) issued proposed rules that would significantly impact Rule 10b5-1 trading plans. Among other things, the proposed rules impose new conditions on the availability of the affirmative defense to insider trading afforded by 10b5-1 plans, require quarterly disclosure of the adoption, modification and termination of trading plans by directors, officers and issuers and require identification of transactions made pursuant to such plans on Forms 4 and…
On Nov. 29, 2021, the staff of the U.S. Securities and Exchange Commission (SEC)âs Office of the Chief Accountant and the Division of Corporation Finance released Staff Accounting Bulletin No. 120 (SAB 120), which is effective immediately and provides guidance on how to properly recognize and disclose the compensation cost for âspring-loadedâ awards made to executives of public companies subject to reporting requirements under US securities laws. SAB 120 describes spring-loaded awards as share-based compensation…
Large companies doing business in San Francisco may soon be subject to an additional tax if voters approve the so-called âOverpaid Executive Gross Receipts Taxâ this coming November. Joining a minority of municipal governments that have imposed an âexecutive pay ratio taxâ on the heels of the SECâs CEO pay ratio disclosure rules, the San Francisco Board of Supervisors recently approved a ballot initiative for this Novemberâs election that calls for the imposition of a…
The Tenth Circuit has affirmed the district courtâs dismissal of a plaintiff shareholderâs claim that withholding shares to satisfy taxes on a restricted stock unit (RSU) violated Exchange Act Section 16(b) (see Olagues v. Muncrief, No. 18-5018 (10th Cir. 2019)). As we outlined last year in a blog on the lower courtâs decision, the plaintiffâs claim was based on the non-exempt acquisition of shares by two executives within six months of the date that shares…
On December 7th, the IRS issued Notice 2018-97 to provide initial guidance on the new private company income inclusion deferral regime enacted under Code Section 83(i) as part of the 2017 Tax Cuts and Jobs Act (âSection 83(i)â). Under the deferral regime, eligible employees of eligible privately-held companies may elect to defer payment of federal income taxes due on exercise of stock options or settlement of restricted stock units (âRSUsâ) for up to five years…
Institutional Shareholder Services (ISS) on November 21, 2018 issued âpreliminaryâ FAQs addressing a few, but not insignificant, changes to its compensation policies for 2019. Unfortunately, these FAQs did not provide much-anticipated guidance on performance awards, following the Tax Cuts and Jobs Actâs elimination of the âqualified performance-based compensationâ exception to the general deductibility disallowance under Section 162(m) of the Internal Revenue Code for compensation exceeding $1 million payable to âcovered employeesâ of publicly traded companies. …
We have been following the progress of a number of plaintiff shareholder suits alleging Exchange Act Section 16(b) short swing profits based on âdiscretionaryâ share withholding on equity awards. Just under a year ago we were happy to report the first district court dismissal of one of these claims, although that case is currently on appeal to the Fifth Circuit. On January 26, 2018, a second such claim was thrown out via summary judgment, this…
On December 13, 2017, the Delaware Supreme Court in In re Investors Bancorp, Inc. Stockholder Litigation issued a decision having significant ramifications on director compensation. The case increases the risk of plaintiff stockholder claims against directors based on a breach of fiduciary duties where directors grant themselves equity awards pursuant to a plan providing the directors with general discretion to determine the amount, terms, and conditions of the awards â even if the plan includes a stockholder-approved limit in the plan on the size of the awards that may be granted to directors.
Just last week we were presenting at the annual NASPP conference on the increasing scrutiny of director compensation from shareholders, investors, plaintiffs, the SEC, and proxy advisors. This week it seems that the trend is set to continue, as Institutional Shareholder Services (âISSâ) launches its 2018 Benchmark Policy Consultation, seeking public comment on proposed new voting policies for 2018, including a new draft U.S. voting policy on director elections and non-employee director pay. The proposed new…