United States: Treasury Announces Executive Compensation And Corporate Governance Standards For Companies Receiving TARP Assistance

On June 10, 2009, U.S. Department of the Treasury announced Interim Final Rules setting forth standards for compensation and corporate governance (the "TARP Final Rules") applicable to participants in the Troubled Asset Relief Program ("TARP") under the Emergency Recovery and Reinvestment Act of 2008, and the American Recovery and Reinvestment Act of 2009. The TARP Final Rules provide executive compensation standards for all (i) entities receiving TARP assistance, (ii) entities that own 50 percent of a TARP recipient entity, and (iii) entities that are 50 percent owned by a TARP recipient ( "TARP Entities"). The TARP Final Rules became effective upon publication in the Federal Register, which occurred June 15, 2009, and supersede the prior rules and guidance regarding executive compensation standards and corporate governance practices for TARP Entities.

All TARP Entities will need to take action to ensure compliance with the TARP Final Rules, the most significant of which are briefly described below:

Limits on Bonus Compensation for Certain Executives and Highly Compensated Employees

TARP Entities are prohibited from accruing or paying any bonuses, retention awards (including new hire/"make-whole" awards) or incentive compensation (including stock options) paid to their Senior Executive Officers ("SEOs")* and certain other most highly compensated employees, except the following: (i) payments of "Long-Term Restricted Stock," including restricted stock units, subject to prescribed vesting criteria included in the TARP Final Rules and having a value of no more than one-third of the employee's total compensation, and (ii) bonus payments required to be paid pursuant to an employment agreement as of Feb. 11, 2009. This payment limitation does not apply to any bonuses accrued or paid prior to the date the TARP Final Rules are published in the Federal Register. The number of highly compensated employees and SEOs subject to bonus-payment limits will differ depending on the amount of TARP assistance received (e.g., entities receiving more than $500 million in TARP funds will have bonus limits applied to SEOs and the next 20 most highly compensated employees).

Prohibition of "Golden Parachute" and Tax "Gross-Up" Payments

"Golden parachute" payments are prohibited to SEOs and the other five most highly compensated employees. Golden parachute payments include payments paid as a result of the employee's departure for any reason from the TARP Entity, and payments made on account of the TARP Entity's "change in control." There is no longer an exception for any amount of golden parachute payment, as was included in the prior rules.

Tax "gross-up" payments (i.e., reimbursement for taxes paid by employees as a result of "golden parachute" payments and other compensation) are prohibited to SEOs and the next 20 most highly compensated employees.

Additional Obligations – Luxury Expenditures, Disclosure and Compliance Regime

TARP Entities are also required to adopt, file and post a luxury expenditure policy, disclose the payment of perquisites exceeding $25,000 for any employee subject to bonus restriction, disclose information about their use of compensation consultants, and include a non-binding "say-on-pay" shareholder vote in their annual meeting proxy statements. In addition, the TARP Final Rules establish a compliance reporting regime, which includes a requirement that the compensation committee meet twice a year to review the entity's compensation policies for unnecessary risk, and to annually disclose its findings.

Special Master

The TARP Final Rules establish a "Special Master" to approve the payments and/or compensation structures of the SEO and next 100 most highly compensated employees of companies that have received "exceptional financial assistance." The Special Master may also provide opinions regarding payments or compensation structures to employees of other TARP Entities.

Compliance Period

The obligation to comply with the TARP Final Rules continues until the TARP Entity has repurchased its preferred stock from Treasury and does not apply during the time when Treasury only holds a warrant to purchase the TARP Entity's common stock.

* SEOs are defined as principal executive officer (i.e., CEO), the principal financial officer (i.e., CFO), and the other three (3) most highly compensated employees for the company's last completed fiscal year, as determined according to compensation requirements set forth in Item 402 of Regulation S-K of the federal securities laws.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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 Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions