GH&C Update: Dodd-Frank Wall Street Reform and Consumer Protection Act
September 3, 2010
September 3, 2010 - Red Bank, NJ - On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) into law. The Act makes broad changes to the existing regulatory structure, including the creation of new government agencies and the reorganization of existing agencies. While the most broadly-sweeping changes relate to the regulation of financial institutions, the Act includes several amendments to the federal securities laws and an amendment to the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) that will have an impact on all public companies, as well as some privately-held companies. These amendments include the following:
Exemption from Section 404(b) of Sarbanes-Oxley
Section 404(a) of Sarbanes-Oxley requires a public company to assess the effectiveness of its internal controls over financial reporting as of the end of each fiscal year, and Section 404(b) requires the company’s independent auditor to attest to and report on this assessment. The Act amends Sarbanes Oxley to exempt companies that are neither large accelerated filers nor accelerated filers from the attestation requirement of Section 404(b).
Amendments to Regulation D
Definition of an accredited investor. The private placement of securities to an individual who is an “accredited investor” may be exempt from registration under the federal securities laws. The pre-Act definition of an “accredited investor” includes an individual (or married couple) whose net worth exceeds $1,000,000. The Act amends this definition to expressly exclude the value of the individual’s or couple’s primary residence from the net worth calculation. The amount of any indebtedness secured by the primary residence is also excluded from the net worth calculation. However, if the amount of the indebtedness exceeds the value of the residence, the excess will be treated as a liability and will be deducted from net worth.
“Bad actor” disqualification. The Act disqualifies any offering or sale of securities under certain private offering rules under the federal securities laws (Rule 506 of Regulation D) by an entity that has been convicted of certain crimes involving securities or is subject to a final order relating to securities, banking, insurance or credit union activities.
Amendments to Proxy Rules
Shareholder approval of executive compensation. At least once every three years, an issuer is required to include a non-binding resolution in its proxy statement subject to a vote of the shareholders to approve the compensation paid to the issuer’s executive officers as disclosed in the proxy statement, and at least once every six years, an issuer must include a shareholder resolution to determine whether the vote to approve executive compensation will occur every year, every two years or every three years. An issuer is required to include both of these resolutions in its proxy statement prepared in connection with the first annual meeting to occur after January 21, 2011.
In addition, any proxy statement prepared in connection with a proxy solicitation occurring more than six months after the enactment of the Act that relates to a merger, acquisition, consolidation, or similar transactions must disclose all executive compensation that is based on or otherwise relates to the transaction, and must include a non-binding resolution subject to a vote of the shareholders to approve such compensation.
The Act contemplates that the Securities and Exchange Commission (the “SEC”) may provide an exemption from these shareholder vote requirements for small issuers for whom these requirements would be disproportionately burdensome.
Disclosure of pay vs. performance. An issuer is required to provide a disclosure in its proxy statement regarding the relationship between executive compensation and the financial performance of the issuer. In addition, an issuer must disclose (i) the median of the compensation paid to all employees excluding the CEO, (ii) the total compensation of the CEO, and (iii) the ratio of (i) to (ii).
Disclosure of hedging instruments. An issuer is required to disclose in its proxy statement whether any employee or director is permitted to purchase any financial instrument that is designed to hedge against a decrease in the value of the issuer’s equity securities held by such employee or director.
Chairman and CEO structure. An issuer must disclose in its proxy statement why it has chosen to have the same individual serve as both chairman of the board and CEO or why it has chosen to have different individuals to serve in each office.
Proxy access. The SEC is authorized to adopt rules requiring an issuer to include nominees for director submitted shareholders in the issuer’s proxy statement. The Act contemplates that the SEC may provide an exemption from this requirement for small issuers for whom this requirement would be disproportionately burdensome.
Corporate Governance Requirements
The following rules will apply to issuers whose securities are listed on a national securities exchange or association:
Compensation committee independence. Each member of an issuer’s compensation committee must be an independent member of the board of directors. In addition, the compensation committee may only select compensation consultants, legal counsel, and other advisers that are independent.
Clawback of compensation. An issuer is required to adopt rules providing for the recovery from any current or former executive officer of any incentive-based compensation that was paid in the last three years that was based on erroneous financial information.
Although the amendment to the definition of an “accredited investor” is effective as of the date of the Act, the SEC is expected to promulgate rules implementing the foregoing provisions in the next several months.
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|Tags: John L. Sikora, Securities, Corporate & Business|
Posted in: Corporate & Business