United States: SEC Proposes Rules For Hedging Disclosure

The Securities and Exchange Commission (SEC) recently released proposed rules to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), which calls for disclosure of whether employees or members of boards of directors are permitted to purchase financial instruments that are designed to hedge or offset any decrease in the market value of company equity securities. Neither Dodd-Frank nor the proposed rules require that a company actually have a hedging policy or that a hedging policy contain any particular terms.

The proposed rules come on the heels of efforts by the major proxy advisory firms in recent years to have companies adopt hedging policies (by treating the absence of such a policy as a basis for recommending "against" votes for sitting directors). In response to these efforts, many companies have begun disclosing in their proxy statements that they have anti-hedging policies for executive officers. If the SEC's proposed disclosure requirements are adopted in their present form, companies likely would need to reexamine the terms of their existing policies and assess whether changes or clarifications would be appropriate.

Expansive View of Covered Transactions

The proposed rules begin by adopting an expansive interpretation of transactions covered by Section 955 of Dodd-Frank. While that section concerns only the purchase of financial hedging instruments, the SEC has proposed a "principles-based" disclosure regime in which companies would be required to report any transactions under which employees or directors could effectively avoid compensation requirements that they hold stock long-term, thus enabling them to receive their compensation even in the case that their companies do not perform. Such transactions could include:

  • the purchase of a financial instrument (including prepaid variable forward contracts, equity swaps, collars and exchange funds);
  • short sales; or
  • sales of security futures.

As a result of this broadly defined set of covered transactions, the proposed rules suggest companies will need to disclose the categories of permitted and prohibited transactions. The proposed rules recognize that, depending upon how a company defines its policies, there may be an infinite set of either permitted or prohibited transactions. Therefore, disclosures that list permitted transactions and state that all others are prohibited (and vice versa) are acceptable.

Covered Securities – May Include More than the Company's and Equity Held Outright

The proposed rules define the equity securities covered by the disclosure requirements as any equity securities − as defined by Section 3(a)(11) of the Securities Exchange Act of 1934 (Exchange Act) and its accompanying Rule 3a11-1 − that are registered on a national securities exchange or under Section 12 of the Exchange Act that are issued by:

  • the company;
  • any parent of the company;
  • any subsidiary of the company; or
  • any subsidiary of any parent of the company.

For many companies, determining the equity securities covered by the proposed rules likely will be fairly straightforward. However, a company may be required to disclose its policies as a broader array of equity securities, as would be the case, for example, of a company that has undergone reorganization and has a publicly traded subsidiary.

In addition, the source from which an employee or director obtains the equity securities would be irrelevant under the proposed rules. Thus, both compensatory equity securities grants and other equity securities holdings would be covered by the disclosure regime.

Disclosure Required for All Employees and Directors

Following their approach to the transactions and types of equity securities covered, the proposed rules state that companies must report their hedging policies as to all employees, including officers, as well as directors. Such an approach would be an expansion beyond the disclosures companies are required to provide as to their named executive officers in proxy materials.

This aspect of the proposed rules likely will be the subject of comment. It is anticipated that commenters will suggest that hedging policies for employees other than executive officers are not material to shareholders, and thus should not be subject to disclosure.

Disclosure Required Whenever Directors Elected

The proposed rules contemplate companies providing these disclosures whenever action is to be taken as to the election of directors. As a result, companies would be required to include information regarding hedging policies in materials provided to shareholders at annual and special meetings, as well as in connection with an action authorized by written consent.

Interplay with CD&A – Cross References Allowed

As mentioned earlier and required by Item 402(b) of Regulation S-K, many companies already provide disclosures regarding hedging policies applicable to named executive officers as part of the compensation discussion and analysis (CD&A) found in their proxy statements. The proposed rules are intended to operate outside of the CD&A rules, by creating a new Item 407(j) to Regulation S-K. To avoid potentially duplicative disclosures, the proposed rules allow companies to satisfy their CD&A disclosure obligations by cross-referencing the new Item 407(j) disclosures if those disclosures otherwise satisfy the CD&A standards.

Small Reporters, Listed Investment Companies and Emerging Growth Companies Covered

The proposed rules conclude by indicating that they would apply to traditional, publicly traded companies and that there will be no relief for:

  • closed-end investment companies that have shares listed and registered on a national securities exchange;
  • smaller reporting companies; or
  • emerging growth companies.

However, the proposed rules would exempt non-listed closed-end investment companies and foreign private issuers.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.