Here’s an excerpt from the intro of this Latham paper “Paying the Premium: An Alternate Approach to Repricing Underwater Options”:

In the current uncertain economic landscape, stock option repricing and exchange programs have once again resurfaced as commonly explored alternatives to alleviate the competitive compensation and retention headwinds faced by companies with a significant number of underwater options. However, the inherent complexities and potential limitations of these programs often create roadblocks or require commercial compromises that impair the program’s effectiveness in achieving the desired incentive and retention goals.

Specifically, the memo goes on to address tender offer considerations for traditional stock option repricings and exchanges:

An option exchange program typically requires option holder consent and constitutes a tender offer under applicable US securities rules because option holders are required to make an investment decision when electing whether to participate in the exchange. An option repricing can also trigger the tender offer requirements where option holder consent is required, such as if the repricing is tied to the imposition of additional or extended vesting conditions on the repriced options.

The memo notes that companies “grappling with these issues may want to consider a novel approach to addressing underwater options,” and describes the “premium” approach, which “delays the availability of the repricing unless and until certain new exercise conditions are satisfied (e.g., continued employment through a later date).” 

[A]n alternate approach to option repricing is available through which repriced options remain subject to a higher exercise price (or a “premium” exercise price) applicable to exercises occurring prior to the expiration of a specified vesting or retention period (the “premium period”), which may be longer than the original vesting period and/or contain other new vesting conditions.

As with a traditional option repricing, under this approach the exercise price of an underwater option is reduced to the fair market value of the company’s stock on the effective date of the repricing (thus locking in the availability of the repricing-date fair market value). However, if the option holder exercises the repriced option or terminates service, in either case, prior to the expiration of the premium period, the option holder does not benefit from the repricing and must instead pay the premium exercise price per share (i.e., an amount up to the original exercise price) upon exercise.

This approach effectively imposes a new vesting schedule on the repriced option, but typically can be implemented by the plan administrator unilaterally since it conveys only a benefit (i.e., the reduced exercise price after the satisfaction of the premium period) and has no material adverse impact on the option as it currently exists.

– Meredith Ervine 

If you’re still looking for resources to do one last compliance check on your proxy statement, check out Goodwin’s 2024 Year-End Took Kit, updated in March to include proxy form check resources. These tools are all the more important as pay-versus-performance and clawbacks have only complicated the compensation-related disclosure requirements for proxy statements. The actual form check table has helpful callouts noted in red for any newly added rows and reminds companies to confirm that the CD&A narrative is consistent with PvP and clawback disclosures.

– Meredith Ervine 

When the new clawback listing standards came out, there was a lot of discussion about how companies would go about the necessary calculations for stock price or TSR-based awards. While event studies were identified as the likely standard, advisors were recommending that the clawback policy not identify the calculation methodology in advance and instead allow the compensation committee to select a methodology based on the facts and circumstances.

This recent WTW memo, 4 Steps for Executing Clawbacks After Your Restatement, agrees — noting “not all stock plans or total shareholder return-based plans will require an event study for every restatement.” If you’re wondering how a compensation committee would go about making the decision of whether to commission an event study, a helpful table addresses several factors that will influence whether one is needed. The listed factors include inflection points in the comp plan, the quantum of stock price movement, market volatility, percentage of pay impacted and the magnitude & cause of the restatement.

For more on the complexities of implementing a clawback, tune in for our upcoming webcast “Clawbacks: Navigating the Process After a Restatement” on Wednesday, April 17, at 2 pm Eastern to hear from two of the authors of the memo, Steve Seelig & Rich Luss, who will be joined by Gibson Dunn’s Ron Mueller and Latham’s Maj Vaseghi. They’ll discuss how to run a thoughtful, thorough and organized process if you find yourself in mandatory clawback territory.

– Meredith Ervine 

The 2024 update to Skadden’s Compensation Committee Handbook is now available — now in its 10th edition, it reflects key developments since last spring, including updates for the clawback rules and developments in pay-versus-performance disclosures. In the discussion of clawbacks, it briefly touches on the interplay with other legal requirements, including SOX and state laws:

Committees should keep in mind that certain states, such as California, have laws that generally prohibit the recovery of wages that have already been paid. While the Dodd-Frank clawback rules are currently expected to preempt conflicting state law, litigation activity may be on the horizon to definitively confirm this.

CEOs and chief financial officers (CFOs) remain subject to the clawback provisions of the Sarbanes-Oxley Act of 2002 (SOX), which provide that if a company is required to prepare an accounting restatement because of “misconduct,” the CEO and CFO are required to reimburse the company for any incentive or equity-based compensation and profits from selling company securities received during the year following issuance of the inaccurate financial statements. To the extent that a Dodd-Frank Clawback Policy and SOX cover the same recoverable compensation, the CEO or CFO would not be subject to duplicative reimbursement. Recovery under the Dodd-Frank Clawback Policy will not preclude recovery under SOX to the extent any applicable amounts have not been reimbursed to the issuer.

This guide is posted along with checklists, sample charters and memos in our “Compensation Committees” Practice Area.

– Meredith Ervine 

PLI’s “SEC Speaks” program continued yesterday, with an emphasis on enforcement. As I noted yesterday, all Staff remarks were made subject to the standard disclaimer that they are made in the person’s official capacity and don’t represent the views of the Commission, the Commissioners or other Staff members.

In yesterday’s program, Stacy Bogert, Associate Director of the Division of Enforcement, noted that Sarbanes-Oxley Section 304 clawbacks are a continued issue of focus for the Enforcement Division. The Division has issued several warnings about this – and the DOJ is also interested. If the Staff is talking about it at a conference, we should pay attention.

Stacy noted that the enforcement approach is guided by the policy underlying the statute: to incentivize CEOs and CFOs to implement robust internal controls designed to detect and prevent misconduct in financial reporting and encourage an appropriate tone at the top. So, you can expect the Commission to seek recovery in these cases beyond the “fraud delta” (the amount of executive enrichment that resulted from the misconduct at issue). It’s likely that they’ll pursue reimbursement to the company of the full amount of all forms of compensation – including profits that the executives received upon the sale of equity. Stacy also gave a reminder of the view that the clawback can apply regardless of whether the CEO or CFO personally engaged in the misconduct that caused the restatement.

These remarks send a “deterrence” signal that may cause many companies to take (yet another) look at their controls & trainings….

– Liz Dunshee

At yesterday’s SEC Speaks, the Corp Fin Staff noted that they are still getting a lot of questions about the new(ish) checkboxes on the Form 10-K cover page that may be triggered by correcting financial reporting errors and a clawback analysis. As a reminder, the Form now says:

– If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements.

– Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b).

Jessica Barberich, who is Assistant Chief Accountant in Corp Fin, shared some color about the Staff’s views on interpretive questions. Here are key takeaways (with the caveat that the standard Staff disclaimer applies and this summary is based on our real-time notes):

– The first box is required to be checked by listed issuers when the financials included in the filing reflect the correction of an error to previously issued financial statements.

– The Staff looks to the definitions in US GAAP when considering whether a change to previously issued financial statements is an “error” – and companies should do the same.

– The term “error” can include mathematical errors, mistakes from the application of GAAP, or oversight or misuse of facts that existed at the time the financials were issued. Examples of things that are not errors include: Adoption of new accounting standard that requires retroactive application; disaggregation of financial statement line items; or a change in account principle (including a change in the method of applying the principle, as long as the prior application wasn’t an error in US GAAP). See the adopting release for other examples.

– For judgment questions – things like fixing a typo, or a change to a prior-year footnote disclosure – your accountants should be involved to help you analyze whether this is considered an “error” under US GAAP.

– The most common question is whether this first checkbox really applies to all corrections. The answer is yes. It must be checked for all restatements: “Big R” restatements, “little r” restatements, as well as restatements that were made voluntarily by the issuer.

– What’s a “voluntary” restatement? Jess gave this example: If the error is immaterial to the prior year, and correction in the current year would also be immaterial, the company is permitted to correct the financials through an out-of-period adjustment to the current year, and the company isn’t required to restate the prior year. If the company chooses to correct the error via a restatement of the prior year, it will need to check the box. If the company instead uses an out-of-period adjustment to the current year, it does not need to check the box, because it hasn’t revised previously issued financial statements.

– The second checkbox has a narrower scope than the first. It indicates whether a recovery analysis is triggered by any of the restatements indicated in the first checkbox.

– It won’t be checked for voluntary restatements that don’t trigger a recovery analysis.

– If there is a “Big R” or a “little r” restatement, a recovery analysis will be triggered under the company’s clawback policy. However, the extent of the analysis will vary. For example, although there would be no recovery amounts to determine if no financial-based incentive compensation was received during the relevant period, the box would still need to be checked, because the analysis was triggered.

Jess noted that both checkboxes only relate to restatements of prior years, not current-year errors corrected in the same year. She also highlighted one other question they’ve been receiving, that is unrelated to scope:

If the 2023 10-K was amended in 2024 for a restatement of errors related to 2023, and the company properly checked boxes in the 2023 Form 10-K/A that it filed, does the company need to check in the 2024 Form 10-K (since it still includes FY 2023 financials)? Jess noted that assuming no other restatements occurred, the company would NOT need to check the box on the 2024 cover in this situation.

Lastly, the Staff noted that the Disclosure Review team will be monitoring filings to ensure that the clawback policy is correctly filed as an exhibit and that the checkboxes are correctly completed if a restatement occurs.

– Liz Dunshee

I blogged last month about the “aircraft audit” initiative that the IRS recently launched. In the latest 20-minute episode of the “Pay & Proxy Podcast,” Meredith interviewed Cooley’s Brad Goldberg and Jet Counsel’s Stewart Lapayowker about this development – and all the latest ins & outs of corporate aircraft compliance & disclosure. They covered:

1. The demand for aircraft by corporations and executives, during and coming out of the pandemic

2. Tax issues for companies and executives

3. What we know about the IRS audit plans

4. The complicating factors of commuting benefits and remote work

5. The recent trend of individual executives or directors purchasing aircraft

6. Related party transaction considerations when a company charters an executive or director’s plane

7. Confirming & improving your controls and record keeping

If you have an executive compensation topic that would be good for a podcast, reach out to Meredith! She’s at mervine@ccrcorp.com.

– Liz Dunshee

Inquiring compensation committees want to know: Are ESG metrics moving the needle for long-term shareholders? Incorporating climate and diversity goals has certainly taken off as a trend at big companies over the past few years. But even outside of the “anti-ESG” camp, the approach isn’t universally loved. In fact, some of the biggest investors & asset managers have expressly stated that if ESG metrics are included in pay plans, the metrics should be rigorous, transparent, and aligned with corporate strategy – which as our 8-page checklist and this blog demonstrate, is easier said than done.

This Bloomberg article says that proponents and the media are now also casting a more critical eye towards ESG incentives. Here’s an excerpt:

As companies increasingly tie executive pay to ESG, there’s evidence to suggest the add-on is being used to enable bigger remuneration packages without leading to any meaningful environmental, social or governance improvement.

In response, activist shareholder groups are demanding more disclosures around ESG-linked pay to force companies to produce transparent metrics. Currently, many of these bonuses are shrouded in vague language, according to US-based nonprofit As You Sow, which focuses on investor issues ranging from climate change to gender inequalities.

The article discusses criticism of a pharma CEO who received a payout based on reduced emissions, even though the company’s overall emissions increased when all Scope 3 emissions were taken into account. Given the complexities of reducing (or even tabulating) Scope 3 emissions, it isn’t surprising that the target was structured this way – but it’s another example of ESG metrics potentially being riskier than first meets the eye. “Human capital” metrics aren’t any easier, either. For example, we’ve noted that companies using DEI metrics must tread very carefully. It’s enough to make “simple” executive pay packages sound pretty appealing.

All that said, if you have already incorporated – or are considering incorporating – environmental or social metrics into your pay plans, make sure to check out our “ESG Metrics” Practice Area for benchmarking and tips. Remember that setting & measuring these goals should be a cross-functional effort – and your team should include employment lawyers.

– Liz Dunshee