Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Securities, August 2011
- Compensation Discussion & Analysis to address risks associated with compensation policies and practices
- CSA deems disclosure of executive performance goals based on corporate-wide financial performance metrics will not seriously prejudice any issuer so exemption from disclosure of performance goals not available on that basis
- Mandatory disclosure of compensation advisor fees
- Requirement to disclose defined contribution plan non-compensatory amounts removed
The Canadian Securities Administrators (CSA) have adopted amendments to Form 51-102F6 Statement of Executive Compensation under National Instrument 51-102 Continuous Disclosure Obligations (the Amendments). The Amendments come into force for proxy circular disclosure for issuers for financial years ending October 30, 2011 or later, so they will be in effect for the upcoming proxy season.
Although the current Form 51-102F6 came into force relatively recently, after an extensive comment process, for the 2009 proxy season, the new Amendments significantly change executive compensation disclosure requirements, including changes to the stated objectives of the required disclosure, with new additional required disclosure relating to risk management, performance goals, fees paid to compensation advisors, bench-marking information, compensation committees, valuation of equity-based amounts, future changes to compensation policies and practices, officer and director hedging, and the value of vested share-based amounts and changes to disclosure relating to pension plan benefits.
Despite extensive comments, the Amendments are substantially unchanged from those published for comment in November 2010 by the CSA (the Proposal), as described in our December 2010 Blakes Bulletin: Proposed Changes to Executive Compensation Disclosure.
The substantive changes are:
- New disclosure is required in the Compensation Discussion & Analysis (CD&A) as to whether the board of directors, or board committee, has considered the implications of the risks associated with the issuer's compensation policies and practices and, if the implications have been considered, disclosure is required as to:
- the extent and nature of the board's or committee's role in the risk oversight of compensation policies and practices;
- any practices the issuer uses to identify and mitigate compensation policies and practices that could encourage a named executive officer (NEO) or individual at a principal business unit or division to take inappropriate or excessive risks; and
- any identified risks arising from the policies and practices that are reasonably likely to have a material adverse effect on the issuer.
- The disclosure of performance goals based on corporate-wide financial performance metrics is deemed not to seriously prejudice issuers for the purposes of the exemption from the disclosure of specific performance goals for NEOs, meaning an exemption from the disclosure of such goals on this basis will not be available.
- An issuer is required to state if it is relying on the "serious prejudice" exemption to exclude disclosure of specific performance goals.
- New CD&A disclosure is required as to future changes in compensation practices and policies.
- The Summary Compensation Table cannot be altered by adding columns.
- Expanded disclosure requirements have been adopted relating to compensation committees.
- Expanded disclosure requirements have been adopted relating to compensation advisors, including all fees paid to compensation advisors for executive compensation and other services.
- The requirement to disclose non-compensatory amounts for defined contribution plans is removed.
- Disclosure is required as to whether any NEO or director is permitted to purchase financial instruments that are designed to hedge a decrease in the market value of equity securities granted as compensation.
- Regardless of whether there are any differences between the valuation of equity-based awards disclosed in the Summary Compensation Table and the accounting fair value of such awards, issuers are required to disclose the methodology used to calculate grant date fair values of such awards.
- The disclosure currently required relating to the process the issuer uses to grant option-based awards is extended to all share-based awards.
- New disclosure of the market value of vested share-based awards in the Outstanding Awards Incentive Plan Awards table is required.
New Risk Management Disclosure
Consistent with new rules adopted by the U.S. Securities and Exchange Commission amending compensation and corporate governance disclosure requirements for U.S. companies for the 2010 proxy season (2010 SEC Amendments), the Amendments expand CD&A requirements to require issuers to disclose whether or not the board of directors, or a board committee, has considered the implications of the risks associated with the issuer's compensation policies and practices. (It will be interesting to see if any issuer discloses it has not considered the risk implications.) If the implications were considered, the issuer is required to disclose:
- the extent and nature of the board's or committee's role in the risk oversight of compensation policies and practices;
- any practices the issuer uses to identify and mitigate compensation policies and practices that could encourage an NEO or individual at a principal business unit or division to take inappropriate or excessive risks; and
- any identified risks arising from the issuer's policies and practices that are reasonably likely to have a material adverse effect on the issuer.
In addition, the Amendments add commentary which provides examples of situations that could potentially encourage an executive officer to expose the issuer to inappropriate or excessive risks, such as compensation policies and practices:
- at a principal business unit of the issuer or a subsidiary that are structured significantly differently than others within the issuer;
- for certain executive officers who are structured significantly differently than other executive officers within the issuer;
- that do not include effective risk management and regulatory compliance as part of the performance metrics used in determining compensation;
- where the compensation expense to executive officers is a significant percentage of the issuer's revenues;
- that vary significantly from the overall compensation structure of the issuer;
- where incentive plan awards are awarded upon accomplishment of a task while the risk to the issuer from that task extends over a significantly longer period of time; and
- that contain performance goals or similar conditions that are heavily weighed to short-term rather than long-term objectives.
The Amendments add a new such example to those set out in the Proposal, being incentive plan awards that do not provide a maximum benefit or payout limit.
Given these new disclosure requirements, issuers would be prudent to consider whether such risks are currently considered as part of their compensation policies and practices, and whether any policies or practices in this regard should be established, formalized, documented, or enhanced, in particular if any of the examples provided apply in their circumstances.
New Limits on Use of Serious Prejudice Exemption for Disclosure of Performance Conditions
Under the current Form 51-102F6, there is an exemption from the CD&A requirement to disclose specific performance goals or similar conditions for NEOs if the disclosure would "seriously prejudice the interests of the company".
The Amendments provide that, for this purpose, an issuer's interests are not considered to be seriously prejudiced solely by disclosing performance goals or similar conditions if those goals or conditions are based on broad corporate-level financial performance metrics such as earnings per share, revenue growth, and earnings before interest, taxes, depreciation and amortization (EBITDA). This is a somewhat unique provision where the CSA have deemed for all issuers that disclosure of NEO performance goals based on corporate-wide financial performance measures will not seriously prejudice issuers, notwithstanding the objections of numerous issuers who commented on this proposal.
The Amendments also require an issuer to explicitly state that it is relying on the serious prejudice exemption if it is doing so and explain why disclosing the relevant performance goals or similar conditions would seriously prejudice the issuer's interests. Again, this is a somewhat unique provision as it is not common under securities laws requirements to require issuers to disclose the fact of non-disclosure and disclose the analysis underlying their conclusions as to the reasons for such non-disclosure.
Summary Compensation Table – No Additional Columns Allowed
Relying on the existing provisions of Form 51-102F6, some issuers have previously included additional columns in the Summary Compensation Table in order to provide additional executive compensation disclosure. The Amendments will end that columnar disclosure, as they provide that the Summary Compensation Table cannot be altered by adding columns. The Amendments provide that issuers may choose to add new tables, columns (but not to the Summary Compensation Table) or other information, if necessary to meet the stated objectives of Form 51-102F6 and if to a reasonable person, the table, column or other information does not detract from the prescribed information in the Summary Compensation Table.
CD&A Significance Determination
Of potential importance to issuers may be the response made by the CSA to a comment that the CD&A disclosure requirements should be qualified by a "materiality" threshold. (Unlike most requirements for disclosure under securities laws, executive compensation disclosure requirements (including the CD&A) are not subject to any standard of materiality.) While rejecting this proposed change, in their response the CSA indicated that companies must determine which practices and policies are "significant", potentially allowing issuers to adopt a "significance" standard as to their CD&A disclosure obligations.
New Compensation Committee Disclosure
The Amendments contain a new section which requires more detailed and additional compensation committee disclosure, which overlaps to a certain extent with the requirements contained in Form 58-101F1 Corporate Governance Disclosure. The Amendments require disclosure of any policies and practices adopted by the board to determine compensation for the issuer's directors and executive officers. If the issuer has established a compensation committee, the Amendments require the issuer to disclose or describe:
- the name of each committee member and whether or not each member is independent;
- whether or not one or more of the committee members has any direct experience that is relevant to his or her responsibilities in executive compensation;
- the skills and experience that enable the committee to make decisions on the suitability of the issuer's compensation policies and practices; and
- the responsibilities, powers and operation of the committee.
Consequential amendments have been made to Form 58-101F1 under National Instrument 58-101 Disclosure of Corporate Governance Practices to allow issuers to incorporate by reference for that form the foregoing disclosure under the amended Form 51-102F6.
Many issuers have previously provided this disclosure, or substantial portions of it, in part voluntarily and in part to satisfy the existing requirements of Form 58-101F1, so this change will not likely have a significant impact on existing disclosure by such issuers.
Disclosure of Compensation Advisors' Services and Fees
Consistent with the 2010 SEC Amendments, the Amendments expand the required disclosure regarding compensation consultants and advisors retained by the issuer to assist the board or compensation committee in determining compensation for the directors or executive officers, including a description of the advisor's mandate and when the advisor was originally retained. (The Amendments oddly require disclosure if a consultant was retained since the most recent completed financial year, i.e., during the year the proxy circular is prepared but not in relation to the year for which executive compensation disclosure is provided in the circular and to which the CD&A relates. We expect many issuers will apply the requirements more logically with respect to the use of advisors in relation to the year which is subject to the disclosure requirements.)
The Amendments, changed somewhat from the Proposal in this regard, also require disclosure of any services provided by the advisor or consultant to the issuer, its subsidiaries and affiliates, or any directors or members of management and whether board or compensation committee pre-approval is required for such additional services provided at the request of management. (The introduction of disclosure relating to "management" is novel and who is included in "management" for this purpose is unclear. As well, the issuer may have no knowledge, and no entitlement to knowledge, as to the use of the advisor at an affiliate, such as a controlling shareholder.)
The Amendments require disclosure of aggregate fees paid to each such compensation consultant or advisor, categorized as Executive Compensation Related-Fees and All Other Fees for the most recent two financial years, irrespective of amount. These requirements are similar to those in National Instrument 52-110 Audit Committees for auditors for audit-related, tax and other fees.
Additional Commentary ON CD&A Disclosure
The Amendments require additional disclosure in the CD&A by specifying in the CD&A commentary that the following are additional examples of items that will usually be significant elements of required disclosure concerning compensation:
- whether the board of directors can exercise discretion, either to award compensation absent attainment of the relevant performance goal or similar condition or to reduce or increase the size of any award or payout, including if they exercised discretion and whether it applied to one or more NEOs; and
- whether the issuer will be making any significant changes to its compensation policies and practices in the next financial year.
In an additional change from the Proposal, the Amendments provide in the commentary to the CD&A that, if the issuer used bench-marking in determining compensation or any element of compensation, the benchmark group is to be included in the CD&A as well as an explanation of why the benchmark group and selection criteria are considered by the issuer to be relevant.
Executive Officer and Director Hedging
The Amendments broaden the CD&A requirements to require disclosure of whether any NEO or director is permitted to purchase financial instruments including prepaid variable forward contracts, equity swaps, collars, or units of exchange funds that are designed to hedge or offset a decrease in the market value of equity securities granted as compensation or held, directly or indirectly, by the NEO or director.
Named Executive Officers – Clarification for Subsidiary Employees
The Amendments attempt to clarify that employees of subsidiaries of an issuer may be executive officers, and hence may be NEOs, of the issuer. However, the manner of clarification may create more ambiguity, as the Amendments refer to executive officers of the issuer including its subsidiaries being included in the definition of NEOs of the issuer, which may create confusion that individuals who are executive officers of subsidiaries (such as the CEO of the subsidiary) are executive officers of the issuer, which may not necessarily be the case. The CSA's response to comments on this change indicates that an employee of a subsidiary will be an executive officer of the issuer only if such employee performs a policy-making role for the issuer, which appears to be the correct interpretation based on the underlying policy but which may not be apparent from the wording of the Amendments.
The Amendments provide that amounts be reported in either Canadian dollars or the same currency as the issuer uses for its financial statements, and if compensation is provided in a currency other than the currency reported, the issuer is to disclose the currency in which the compensation was provided, the currency exchange rate and the methodology used to translate the compensation into the disclosed Canadian or other currency amounts. Accordingly, pursuant to the Amendments, issuers who use a currency other than Canadian for their financial statements may, nonetheless, use Canadian currency for executive compensation disclosure.
In a change from the Proposal, the Amendments provide that currencies other than those used in the Summary Compensation Table may be used in the CD&A, if, for example, performance conditions are specified in a different currency.
Disclosure of Valuation of Equity-Based Awards
Currently issuers are only required to disclose the methodology used to calculate grant date fair values of equity-based awards, including key assumptions and estimates used for each calculation, if the methodology used in the Summary Compensation Table is different from that used for financial reporting purposes. The Amendments require all issuers, regardless of whether there are any differences between the method used for purposes of the Summary Compensation Table and for financial reporting, to disclose the methodology used to calculate grant date fair values of equity-based awards, including key assumptions and estimates used for each calculation, and why the issuer chose that methodology.
Pension Plan Benefits Disclosure
Under the current Form 51-102F6, issuers are required to disclose in the Defined Contribution Plans (DC Plans) table non-compensatory amounts, including employee contributions and regular investment earnings on employer and employee contributions, for DC Plans. Under the Amendments, the requirement to disclose non-compensatory amounts for DC Plans has been removed.
The Amendments clarify that issuer contributions to a personal savings plan like an RRSP are to be disclosed in the Other Compensation column of the Summary Compensation Table.
As an addition to the changes in the Proposal, the Amendments also provide that for defined benefit plan disclosure, disclosure of the annual lifetime benefit payable must assume that the NEO is eligible to receive payments, i.e., that all vesting conditions have been met. The Amendments also provide a formula for the purposes of quantifying the annual lifetime benefit payable (based on a fraction of the annual benefits payable at the presumed retirement age used to calculate the closing present value of the defined benefit, the fraction being the current years of credited service divided by the credited years at retirement age), while allowing for the use of other formulas if the issuer believes it provides a more meaningful calculation of the benefit.
Objectives Changed: Intended to Pay versus Paid
Currently Form 51-102F6 provides that the objective of required disclosure is to "communicate the compensation the board of directors intended the company to pay". The reference to "intended" has resulted in ambiguity in applying the requirements of Form 51-102F6 by requiring disclosure of intended amounts as opposed to actual amounts. For instance, a compensation committee may establish a bonus program under which it expects certain amounts may be paid to the executive for an expected performance, but the actual results of the bonus program may result in a lower or higher bonus being paid for the year. The Amendments remove this reference to the board's intention and change the objectives of the required executive compensation disclosure. The Amendments provide that the objective is to communicate compensation paid or payable and add an additional objective to communicate the decision-making process relating to compensation. Similar changes have been made to the Summary Compensation Table requirements relating to option-value disclosure. Certain issuers had relied on the existing requirements to provide option value disclosure based on an allocation of value for multi-year grants intended to compensate the NEO over a number of years, which now will not be permitted.
Expanded Disclosure of Share-Based Awards
Form 51-102F6 currently requires disclosure of the process the issuer uses to grant option-based awards, including the role of the compensation committee and executive officers in setting or amending any equity incentive plan under which option-based awards are granted and whether previous grants are taken into account when considering new grants. The Amendments extend these disclosure requirements to all share-based awards.
In a change not contained in the Proposal, the Amendments provide that for option awards disclosed in the Outstanding Awards Incentive Plan Awards table, if the option was granted in a different currency than reported in the table, footnote disclosure is required as to that currency and the exercise price.
New Disclosure of Market Value of Vested Share-Based Awards
The Amendments require that a new column be added to the Outstanding Awards Incentive Plan Award table to disclose for each NEO the aggregate market or payout value of vested share-based awards that have not yet been paid-out or distributed. While many share-based award plans provide for payout or distribution of awards upon vesting, some plans, most notably deferred share unit plans for directors, do not. For share-based awards which do not provide for immediate payout upon vesting, this requirement will result in repetitive disclosure, as the same vested, non-paid, awards may appear in multiple years' proxy disclosure until paid out.
No Required Disclosure of Amounts Realized Upon Exercise of Equity Awards
The CSA also commented on an amendment that they are not proposing. For financial years ending prior to December 31, 2008, issuers were required to disclose the aggregate dollar value realized upon the exercise of options or stock appreciation rights. Upon the adoption of the new Form 51-102F6 for 2009, this requirement was replaced by a requirement to disclose specific information about equity-based and non-equity awards in two Incentive Plan Awards tables. The first such table requires issuers to disclose information about all outstanding share-based and option-based awards, which gives readers information about the position of outstanding equity-based awards (both in and out-of-the-money). The second such table shows any amounts an NEO realized during the most recently completed financial year from the vesting of equity-based awards assuming the equity-based award had been exercised on the vesting date. The CSA determined that they would not reintroduce a requirement to disclose the aggregate dollar value realized upon the exercise of options, stock appreciation rights or other equity-based compensation awards, as this represents an investment decision by the executive, not a compensation decision by the issuer.
No Required Disclosure of Comparisons of CEO Compensation To Median Compensation
The 2010 SEC Amendments included a controversial requirement for public companies to disclose:
- the median annual total compensation for the employees (except the CEO);
- the annual total compensation of the CEO; and
- the ratio of the CEO's compensation to the median.
The requirement to disclose the "median compensation" of all employees attracted criticism on numerous grounds, including: difficulty in determining the annual compensation across large work forces, perverse incentives to reduce lower-paid position headcount (for example by outsourcing), issues relating to treatment of employees of non-wholly owned subsidiaries and foreign subsidiaries, and treatment of part-time employees. Given the numerous issues relating to this requirement, and the consequent administrative burdens, issuers will be relieved that the CSA have not included any equivalent requirements in the Amendments.
The new requirements will apply to the preparation of management proxy circulars for issuers with financial years ending on or after October 31, 2011.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.