The Canadian Securities Administrators (CSA) adopted new rules for executive compensation disclosure on September 18, 2008. Publicly traded issuers in Canada are required to disclose compensation awarded to executive officers during any fiscal year ending on or after December 31, 2008 in accordance with the new rules. Most Canadian issuers will be required to comply with the new rules in their proxy circulars for their next annual meeting. As of December 31, 2008, issuers with financial years ending prior to December 31, 2008 may voluntarily comply with the new rules in lieu of the current ones.
The new disclosure requirements represent the first major overhaul of executive compensation disclosure practices in Canada in 15 years. While the new requirements reflect in large measure changes adopted by the U.S. Securities and Exchange Commission (SEC) in 2006, there are some significant differences.
In light of these changes, issuers should consider taking the following actions:
- Review who will be a named executive officer (NEO) under the new rules.
- Consider whether current compensation practices and policies measure up against best practices. Issuers should consider whether to change their practices and policies as they are required to describe them in more detail under the new rules. (For example, a number of U.S. companies modified their executive employment agreements when changes were made to U.S. disclosure requirements so that change of control payments will not be made unless and until the executive is terminated from employment following the change of control.)
- Reconsider policies respecting benefits and perquisites in light of the new guidance on perquisites and the lower threshold for perquisite disclosure.
- Get an early start on drafting. More information must be gathered to comply with the new rules, including equity award information on an award-by-award basis, details concerning director compensation on an individual basis and information needed to reconcile compensation information to information reported in the financial statements. The NEOs and the compensation committee will need additional time to review the changes to the issuer's disclosure.
Highlights of the changes to disclosure requirements are discussed in this Osler Update. We also highlight some of the key differences from U.S. executive compensation disclosure requirements. Click here for a chart comparing the requirements under the new form with existing Canadian and U.S. executive compensation disclosure requirements.
Purpose of Executive Compensation Disclosure
The new rules set forth general principles which clarify that the scope of compensation to be disclosed is very broad and that the focus is on what the board of directors intended to award, rather than what the executive eventually realized.
All direct and indirect compensation to NEOs and directors for or in connection with services provided to an issuer or its subsidiaries must be disclosed, excluding only payments made under the Canada Pension Plan and similar governmental plans as well as group life, health, hospitalization, medical reimbursement and relocation plans that do not discriminate in scope, terms or operation and which are generally available to salaried employees.
The objective of executive compensation disclosure is to communicate the compensation that the board of directors intended to award to each NEO and director for the financial year. It is meant to provide insight into the governance of the issuer and help investors understand how executive compensation decisions are made.
New Compensation Discussion & Analysis Replaces the Report on Executive Compensation by the Compensation Committee
A compensation discussion and analysis (CD&A) similar to U.S. requirements is now required. The CD&A is intended to provide context for the detailed compensation information following it by providing a meaningful analysis of factors relevant to the issuer's compensation decisions.
The CD&A will require an issuer to disclose the significant principles which underlie its policies and procedures for the compensation of NEOs, including information on (i) the objectives of the issuer's compensation programs or strategies; (ii) what the issuer's compensation program is designed to reward; (iii) each element of compensation; (iv) why the issuer has chosen to pay each element; (v) how the issuer calculates the amount for each element; and (vi) how each compensation element and the issuer's decisions about that element fit into the issuer's overall compensation objectives and affect decisions about other elements. Disclosure should give a sense of how compensation is tied to each NEO's performance. In the CD&A, issuers generally are expected to disclose any provisions for the claw-back of awards based on results that are subsequently restated.
In drafting their CD&A, Canadian issuers will find it useful to consider CD&A disclosure provided by U.S. issuers as well as the SEC's observations on compliance with the U.S. executive compensation disclosure rules in 2007 (See SEC Staff Observations in the Review of Executive Compensation Disclosure.)
Responsibility for the CD&A. The CD&A is not required to be a report of the issuer's compensation committee, and there is no longer any requirement in Canada to provide a Report on Executive Compensation. However, we expect that the CD&A will be reviewed by the compensation committee.
Disclosure requirements apply equally to all NEOs. Unlike the current Report on Executive Compensation, the CD&A does not distinguish between the CEO and other NEOs for disclosure purposes.
Comparator groups. Issuers must describe any benchmark used for compensation purposes and set out the names of the companies included in the benchmark or comparator group.
Identification of performance goals and conditions. Performance goals or similar conditions applicable to compensation awarded to NEOs for the most recent fiscal year must be disclosed if they are based on objective, identifiable measures, such as share price or earnings per share, unless a reasonable person would consider that disclosing them would seriously prejudice the issuer's interests. Where a specific performance goal or similar condition is not disclosed, the issuer must state what percentage of the NEO's total compensation relates to the undisclosed information and how difficult it could be for the NEO, or how likely it will be for the issuer, as applicable, to achieve the undisclosed goal or condition. Performance goals or similar conditions that are subjective in nature may simply be described without providing specific measures.
Performance graph. As part of the CD&A, issuers (other than Venture Issuers and companies that have distributed only debt securities or non-convertible, non-performing preferred securities to the public) will still be required to provide a five-year performance graph, but there will be more flexibility to supplement the chosen performance index with other performance indices. However, issuers are also now required to provide a narrative comparing the trend in the performance graph to the trend in the issuer's compensation to executive officers reported under the form over the same period.
Option granting practices. In a nod to recent scandals involving the backdating of stock option awards, the CD&A will require issuers to explain the process by which options and other option-based awards are granted, including the role of the compensation committee and executive officers in setting or amending any equity incentive plan under which option-based awards may be granted.
Determination of "Named Executive Officers" to Be Made Based on Total Compensation
As under the U.S. executive compensation disclosure rules, the determination of which three executive officers other than the CEO and CFO whose compensation must be disclosed in the Summary Compensation Table is made based on "total compensation", rather than just the aggregate of salary and bonus, as is the case under the current rules. However, in calculating such "total compensation", issuers are to exclude compensation reported under the Pension value column of the Summary Compensation Table, compensation relating to a foreign assignment that is intended to offset the higher cost of living in the foreign jurisdiction, and incremental payments, payables and benefits triggered by a termination of employment, change of responsibilities or change of control which occurred during the fiscal year.
Summary Compensation Table Revised and Expanded, and Includes a New "Total Compensation" Column
The Summary Compensation Table has been revised in several significant ways:
All elements are to be assigned a dollar value. The elements of the Summary Compensation Table, which include salary, share-based awards, option-based awards, non-equity incentive plan compensation, pension value and all other compensation, are all required to be disclosed in dollar amounts. Currently, a dollar value is not required to be assigned to option-based compensation.
Two new columns have been added to the Summary Compensation Table. A Pension value column will report compensation relating to defined benefit or defined contribution pension plans, including service costs and other compensatory items such as, in the case of defined benefit plans, plan changes and earnings that differ from estimated earnings and, in the case of defined contribution plans, above-market earnings. A Total compensation column will represent the sum of all of the elements of the table.
Incentive compensation. Incentive compensation generally is to be allocated to the Share-based awards column, Option-based awards column or Non-equity incentive plan column depending on whether the compensatory element is (or is economically similar to) a share of the issuer (i.e., restricted share, restricted share unit or deferred share unit), an option or neither a share nor an option. There is no longer a Bonus column. For equity incentive compensation, issuers are required to report in the Summary Compensation Table the fair value assigned by the board to the award at the time of grant. The methodology used to calculate the grant date fair value must be set out in a footnote to, or narrative following, the Summary Compensation Table. Issuers are required to provide a reconciliation of any difference between the fair value assigned by the board and the fair value determined in accordance with the CICA Handbook for an equity award. If in the fiscal year the issuer has adjusted, amended, cancelled, replaced or significantly modified the exercise price of any options for any NEO, including options granted in prior fiscal years, the issuer must report any incremental fair value calculated using the same methodology as used in the initial grant. For non-equity incentive compensation that is subject to satisfaction of a future performance goal or condition, the grant date fair value is not reported in the Summary Compensation Table; instead, such an amount is reported only once it has been earned (i.e., the performance goal or condition has been satisfied).
Deferred compensation. Compensation deferred at the election of the executive officer is to be reported in the column of the Summary Compensation Table applicable to the original form of the compensation. For example, where an executive elects to receive a portion of the executive's annual incentive compensation in the form of deferred share units rather than cash, the issuer must report the entire amount in the Summary Compensation Table as non-equity incentive plan compensation - Annual incentive plans.
New guidance on reporting of perquisites. The executive compensation disclosure rules now include guidance on the determination and valuation of perquisites for reporting purposes. A benefit that is integrally and directly related to the performance of the executive's duties is not a perquisite even if it provides some personal benefit. However, if the benefit is not integrally and directly related to the performance of the executive's duties, it is a perquisite unless (i) there is no direct or indirect personal benefit or (ii) it is generally available on a non-discriminatory basis to all employees. The de minimus threshold for determining when perquisite disclosure may be omitted from the Summary Compensation Table has been reduced to the lower of Cdn$50,000 and 10% of total salary from the lower of Cdn$50,000 and 10% of total salary plus bonus.
Transitional relief. Although compensation awarded in the three most recently completed fiscal years is required to be reported in the Summary Compensation Table, issuers need not report compensation awarded in fiscal years ending prior to December 31, 2008.
Equity and Non-equity Incentive Compensation Disclosure Reformulated
The table of Option/SAR Grants During The Most Recently Completed Financial Year has been deleted and two new tables replace the current Aggregated Option/SAR Exercises During The Most Recently Completed Financial Year and Financial Year-End Option/SAR Values table.
In the new Outstanding share-based awards and option-based awards table, issuers are to report all outstanding option-based awards on an award-by-award basis and must also report on an aggregate basis all outstanding share-based awards made to each NEO. In the case of option-based awards, the issuer must report the number of securities underlying each unexercised option, the option exercise price, the expiration date and the in-the-money value (if applicable). In the case of share-based awards, the issuer must report the number of shares or units that have not vested and the market value of unvested share-based awards. If the payout for a share-based award on vesting may vary depending on the achievement of performance goals in the future, the value is to be calculated assuming that the minimum performance level for payment has been achieved.
The value of incentive awards which vested during the year is reported in a new Incentive plan awards – value vested or earned during the year table. For each NEO, the issuer is required to report the aggregate value of all option-based awards vested during the year, the aggregate value of all share-based awards vested during the year and the amount of all non-equity incentive plan compensation earned during the year. For these purposes, the value of option-based and share-based awards is to be determined based on the share price as of the vesting date. It is not clear for purposes of such disclosure how options which are under water on the vesting date are to be valued, but we expect that most issuers will simply assign them a nil value. For non-equity incentive plan awards, the amount to be included for each NEO in the table is the aggregate of the non-equity plan compensation amounts (both annual and long-term incentive amounts) reported in the Summary Compensation Table for the last fiscal year.
In addition to the new tables, issuers are required to provide narrative disclosure of the significant terms of all incentive plan awards. This narrative may include the formulae or criteria used to determine amounts payable, information on whether awards are vested, significant conditions, such as performance goals, and information on estimated future payouts for non-equity incentive plan awards. Issuers are also required to provide narrative disclosure of all deferred compensation plans.
There is no obligation to report gains realized on the exercise of vested option-based awards or on the payment of previously vested share-based awards or previously earned non-equity incentive plan compensation.
Enhanced Pension Benefits Disclosure
Additional disclosure is now required concerning NEOs' pension benefits and changes in the value of such benefits year over year. The new rules also replace CSA Staff Notice 51-314 Retirement Benefits Disclosure which had provided guidance on enhanced pension disclosure in addition to that required under the current disclosure rules.
The current Pension Plan Table, which covers a range of possible defined benefit pension payments without disclosing any NEO specific information, has been replaced with a new Defined benefit plans table that shows, for each NEO, the number of years of credited service, the annual benefits payable assuming retirement at the end of the most recent financial year and at age 65, the accrued obligation at the start of the plan year, the accrued obligation at the end of the plan year, and the breakdown in the change in the accrued value during the plan year between compensatory and non-compensatory amounts. Compensatory amounts for defined benefit plans include (i) the service cost net of employee contributions, (ii) plan changes and differences between actual and estimated earnings, and (iii) other changes with a retroactive impact, including changes in valuation assumptions due to an amendment to benefit terms. Where the number of credited years of service exceeds the actual number of years of service, the issuer must disclose in a footnote the amount of the difference and any resulting benefit augmentation.
Issuers must provide a new table concerning entitlements under defined contribution plans. Under this new table, issuers must provide, for each NEO, the accumulated value at the start of the fiscal year and at the end of the fiscal year and a breakdown of the change in the accumulated value over the fiscal year between compensatory and non-compensatory amounts. Compensatory amounts for defined contribution plans means the employer contribution and above-market earnings on contributions.
In addition to the pension benefit tables, for each retirement plan in which an NEO participates an issuer must explain any significant factors necessary to understand the information disclosed in the tables. Such factors may include significant terms and conditions for payments and benefits, normal and early retirement payments, benefit formula, compensation elements to which the benefit formula is applied, contribution formula and provisions for early retirement, as well as an explanation of who is entitled to extra years of credited service and why such crediting is appropriate.
Enhanced Disclosure of Entitlements on Termination of Employment and Change of Control
Issuers will need to provide more information on the benefits payable to an NEO in connection with termination of employment or change of responsibilities and upon a change of control of the issuer.
Issuers must describe the circumstances that trigger payments or other benefits. The estimated incremental payments and benefits that an NEO would receive under each of the various circumstances must be quantified, and how the amounts are determined, the timing and duration of the payments or benefits and who is responsible for providing the benefits must be described. In addition, any significant conditions that apply to the receipt of such payments or benefits, such as compliance with non-competition, non-solicitation or confidentiality obligations, must also be disclosed. Perquisites and other personal benefits must be identified and quantified in such disclosure unless the aggregate amount of such compensation is less than Cdn$50,000.
For purposes of quantifying the estimated benefits, issuers are to assume that the triggering event for the provision of these benefits occurred on the last business day of the issuer's last completed fiscal year. Also, if the incremental benefit is an acceleration of a payment or a waiver of a performance goal, it is the value of the accelerated benefit or the waiver which is to be disclosed.
There is no obligation to disclose entitlements under common or civil law concerning notice of termination without cause or pay in lieu of such notice.
Changes to Director Compensation Disclosure
Director compensation must now be disclosed on an individual basis and in tabular format. The new Director compensation table is similar in form to the Summary Compensation Table except that disclosure is required only for the most recent fiscal year. In the table, fees earned, share-based awards, option-based awards, non-equity incentive plan compensation, pension value and all other compensation must be disclosed for each director. Compensation under any arrangement by which the issuer directly or indirectly compensated a director for services provided in a capacity other than as a director must be disclosed together with a description of the nature of such services. Charitable donations made in the director's name also must be disclosed. As with the Summary Compensation Table, these elements are totalled and presented as an aggregate dollar figure representing the total compensation received by each director for the fiscal year.
In addition, disclosure of any share-based, option-based or non-equity plan compensation to directors must be made in the same manner that such compensation is disclosed for the NEOs, including award-by-award disclosure of option-based awards.
Issuers will also be required to provide a narrative description of all of the factors necessary to understand a director's compensation as reflected in these new tables.
Restrictions on the Manner of Providing Executive Compensation Disclosure
The new executive compensation disclosure rules restrict the ability of issuers to make changes to the prescribed format for disclosure in several ways:
- Issuers must disclose required information in accordance with the form, although issuers are encouraged to provide supplementary information and tables.
- Amounts must be reported in the currency used by the issuer in its financial statements.
- Issuers must indicate how disclosed performance targets based on non-GAAP financial measures are derived from the GAAP numbers. Such disclosure is currently encouraged by CSA staff pursuant to CSA Staff Notice 52-306, but it is not mandatory.
- Executive compensation disclosure required to be provided in a proxy circular must appear in full in the proxy circular, rather than be incorporated by reference.
Issuers listed on the TSX Venture Exchange (Venture Issuers) are currently exempt from several requirements under the current executive compensation disclosure rules. Under the new rules, Venture Issuers are now subject to the same executive compensation disclosure requirements required of other issuers except that Venture Issuers are not required to provide a performance graph.
Corporate Governance Disclosure
There have been no changes to corporate governance disclosure requirements relating to compensation under National Instrument 58-101 – Corporate Governance Disclosure. Issuers other than Venture Issuers, for example, must continue to describe their compensation process and the responsibilities of the compensation committee, if any, and must identify any compensation consultants and describe the work performed by such consultants.
Canadian Issuers Reporting in the U.S.
Most issuers subject to reporting requirements under the Securities Exchange Act of 1934 (U.S.) will be able to provide executive compensation disclosure in the manner required of U.S. domestic issuers in lieu of complying with the requirements of the new Canadian executive disclosure rules.
Key Differences from U.S. Executive Disclosure Requirements
Key ways in which the new rules differ from U.S. executive compensation disclosure requirements are highlighted in the attached chart. These differences include the following:
- Valuation of Equity Awards. Under the new rules, equity awards are valued at the grant date fair value assigned by the board of directors; whereas in the U.S., equity awards are valued at the associated accounting expense recognized for financial reporting purposes.
- Valuation of Pension Benefits. Under the new rules, pension benefits are valued at cost, with a breakdown between compensatory and non-compensatory amounts. In the U.S., pension benefits are valued based on actuarial present value of the accumulated benefit, including non-compensatory amounts.
- Perquisite Disclosure. The U.S. threshold for disclosure is US$10,000 versus the lesser of Cdn$50,000 and 10% of salary in Canada. Separate identification of every perquisite is required in the U.S. and the amount of each perquisite representing at least 10% of the perquisite amount must be given. In Canada it is necessary only to identify and quantify any perquisite representing more than 25% of the perquisite amount.
- Equity Compensation Tables. The tables required under the Canadian disclosure rules are substantially different from the tables required under U.S. rules.
- Report on Executive Compensation. Such a report is no longer required under the Canadian rules. Under the U.S. rules, the compensation committee must confirm that it has reviewed the CD&A, discussed it with management and recommended it for disclosure.
Issuers will need to make substantial changes to the manner in which they gather and disclose executive compensation information, and should allow for additional lead time to prepare executive compensation disclosure for their next annual meeting of shareholders.
Andrew MacDougall is a partner in the firm's Business Law Department and a respected advisor to boards and in-house counsel on a wide variety of general corporate and commercial legal issues. Evan Howard is a partner in the firm's Pensions & Benefits Department. He practises exclusively in the pensions and benefits area, advising on a full range of issues under both federal and provincial legislation. Shannon Anthony is an associate in the Employment and Labour Department in the firm's Toronto office. Shannon's practice includes all areas of employment and labour law. Anna Huculak is an associate in the corporate department in the firm's Toronto office. James Lurie is a partner in the Business Law Department of the firm's New York office.
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.