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Monthly Archives: July 2005

July 29, 2005

Vulnerable Severance Arrangements? Morgan Stanley Complaint Posted

Last week, I blogged about the Central Laborers’ Pension Fund having Bill Lerach file a derivative lawsuit against the Morgan Stanley board over the recent severance packages received by outgoing CEO Phillip Purcell and Co-President Stephen Crawford. We have posted a copy of the 92-page complaint in the “Compensation Litigation Portal” on CompensationStandards.com.

Yesterday, the NY Times ran an interesting article on Marty Lipton, which included some commentary on his role in the Morgan Stanley severance arrangements.

You may want to take this opportunity to review your own severance provisions and contracts because many companies may be sitting on potentially vulnerable arrangements. Check out the excellent guidance (and red flags) provided in the “Severance Arrangements” Practice Area on CompensationStandards.com – and you will not want to miss the latest on severance arrangements that will be imparted at the “2nd Annual Executive Compensation Conference.”

Protection of Your Company’s Premises and Data

With terrorist bombings filling the airwaves, many companies are rethinking how their buildings and properties are protected. In this podcast, Tom LeKan, Senior Vice President and Chief Security Officer of Key Bank, provides an in-house perspective on what companies should consider in protecting their premises, including:

- Do you believe a higher standard of premises protection is necessary as a result of 9/11 and now because of the recent London bombings?
- Do you believe that companies (and state and local governments) have assimilated the mindset of continued premise protection as a result of the recent events?
- Are boards of directors paying sufficient attention to premise protection issues?
- What types of processes and documentation should companies implement to help defend themselves in litigation over inadequate security protection?
- Do you think that companies have sufficient protection against fraud these days?

Property protection also intersects with data security and privacy issues – we have a host of materials on those topics in our “Privacy Rights” Practice Area.

SOX’s 3rd Anniversary

Well, tomorrow is the 3rd anniversary of the Sarbanes-Oxley Act and you know what that means – I go to the beach to celebrate the full employment of corporate & securities lawyers! [I know most of you were thinking that means that every company with securities registered with the SEC have now had their '34 Act filings reviewed at least once since the birth of SOX, pursuant to Section 408(c) of SOX.] Julie will be blogging next week – see ya.

July 28, 2005

ADP’s New Competitor?

On Friday, Corp Fin posted this no-action response to a request from Swingvote about the ability of brokers and banks to hire more than one agent to fulfill their delivery obligations to beneficial owners under Rules 14b-1 and 14b-2.

Glancing at the request, it appears that Swingvote has built a system that allows institutional investors to vote and receive proxy materials electronically (at no cost to the institutional investors) – as well as allow companies to communicate directly with beneficial owners, while still protecting investor’s confidentiality through a “one-way mirror.”

This no-action position allows, for the first time, institutional investors to select a proxy material provider. Historically, this selection could only be made by banks and brokerage firms. While I believe that the banks and brokers still would not be required to name Swingvote as the agent for those investors, those who wish to be responsive to the institutional investors’ requests for an alternative to ADP now appear to have to a legal ability to do so.

It appears that Swingvote intends to seek reimbursement from companies on behalf of the investors that appoint them to service the Swingvote accounts – based upon rates established by the NYSE – and will also seek direct reimbursement for fees it will be entitled to as an intermediary for multiple nominees. I will flesh out more information about this new service soon as I am a little unclear about how this interesting new service works.

New Survey on Earning Releases and Audit Committees

Following up on last fall’s survey regarding 10-Qs and earnings releases, we have posted a new survey on how the audit committee interacts with the earnings release (egs. does the audit committee review them before release; how soon do they get a draft, etc.). Go to our home page to participate!

And here are the final results of our survey on how internal auditors interact with the board.

Ally McBeal’s “Fish” Takes a Swipe at Chris Cox

According to all media reports, the Senate Banking Committee confirmation hearings went swimmingly for Chris Cox (and Roel Campos and Annette Nazareth) and the Committee should be voting soon to approve the nominees and then send the matter to the full Senate. [Cox testified that he wouldn't meddle with the FASB's 123R and option expensing.]

Reading this blog claiming that Chris Cox only faced light questioning, I came across this wacky Web movie attacking Chris Cox on StopCox.org (which now claims Cox perjured himself during his testimony), featuring one of the main characters – Richard Fish – from the Ally McBeal TV series. I guess “Fish” is what passes for a spokesperson for the legal profession these days…and I guess “Fish” is hurting for work to be doing these Web commercials…

July 27, 2005

PCAOB Adopts New Material Weakness Standard

Yesterday, the PCAOB adopted Auditing Standard No. 4 (the Standard and Briefing Paper are here) regarding reporting on whether a previously reported material weakness continues to exist. This standard establishes requirements and provides direction that applies when an auditor is engaged to report on whether a previously reported material weakness in internal controls continues to exist as of a date specified by management.

The PCAOB also adopted certain ethics and independence rules addressing tax services, contingent fees, and certain related general ethics and independence standards. The SEC still has to bless both before they are effective.

Meeting the New Compliance Standards

We have posted the transcript of our recent webcast: “Meeting the New Compliance Standards.”

Memo to Board: No More Board Meetings!

Check out this recent Form 8-K filed by Torvec, which discloses that the Torvec Board formed an Executive Committee that decided to cancel all future board meetings “in order to provide greater efficiency and streamline the corporate decision making process.” As a result of this action, the 8-K discloses that one director decided to resign – a guy who just joined the Board in April.

In this subsequent Form 8-K, the resigning director further explains his reasons for resigning in a letter – and the Torvec President rebuts some of the director’s statements, including an explanation that the cancellation of future board meetings is temporary (and a few personal attacks on the director to boot).

As I read both 8-Ks, the practical effect of creating the Executive Committee and cancelling board meetings was to freeze out two members of management who serve on the Board – who also happen to be the Chair, CEO and CFO – out of board participation and relieve them of all management authority. Seems like a coup by controlling shareholders. As Kramer once said, “Ca-Ca-Ca-Catfight!” I won’t even get into the governance aspects of this mess; it’s pure comic relief (unless you are a Torvec shareholder).

July 26, 2005

The Risks of Loans Being Considered Securities

One of the more academic of the tasks encountered working in Corp Fin’s Office of Chief Counsel is delving into the quagmire of what are the limits of the definition of a “security,” an issue that is raised in a fair number of no-action requests. This issue rears its ugly head all too commonly these days in the loan context.

In this podcast, Greg Woods of Debevoise Plimpton explains the circumstances under which loans can be considered securities, including

- In what way are syndicated loans related to the securities laws?
- Why is this issue relevant today?
- What would the implications be if syndicated loans were treated as securities?
- What are the factors that the courts examine to determine if a loan is a security?
- What should industry participants do to address this issue?

ISS’ 2005 Preliminary Post-Season Report

Yesterday, ISS released a preliminary report that indicates that companies and investors are further embracing the concept of constructive dialogue which played out in a less confrontational 2005 proxy season.

ISS states that “However, all was not calm on the annual meeting front as hedge fund managers emerged as major players on the governance scene this season by shaking up numerous boardrooms via hostile offers, proxy contests for board seats and “vote no” campaigns. And, despite increasing scrutiny to provide more transparent and meaningful disclosure on executive compensation, this is still not standard practice across all companies. In fact, ISS suggested “withhold” votes from compensation committee members at 56 companies with pay practices out of alignment with performance.”

Negotiating Tactics

Today, the next installment of DealLawyers.com “M&A Boot Camp” is available. This segment is brought to life by Wilson Chu of The Deal Guys’ Blog fame, doing his bit on negotiating tactics, such as:

- Gentleman Dealmaking
- Win-Win Does Not Mean: I Win Twice
- Negotiating Reps and Warranties
- Schedules Really Matter
- LOIs as Upfront Ego Management
- Take a Seventh Inning Stretch
- Use of Undermining Words and Phrases
- The Longer You Sit on a Problem, the More You’ll Own it
- Limitations of Emails and Conference Calls
- Educating Your Client to Support Your Position
- Go Deep – Be Prepared for Multiple Levels of Arguments
- Driving the Deal
- Always, Always be Prepared

If you are not a DealLawyers.com member, try a no-risk trial as we just launched our half-price “Rest of 2005” rate – believe it or not, a license for a single user is only $100 and there are similar reduced rates for offices with more than one user!

Face Change for the PCAOB

The PCAOB has changed the “look and feel” of its home page. I fully understand that the PCAOB considers Sarbanes-Oxley important since that legislation is the action from whence the PCAOB sprang, but it’s a little odd that the PCAOB now prominently displays a link to the entire Act smack dab in the middle of the home page. Like pouring salt in a wound…

July 25, 2005

The Challenges of Option Valuation for Expensing Purposes

As we move closer towards en masse adoption of option expensing, some members are finding valuation issues under 123R that surprise them. Many of these surprises have been covered on the NASPP website, either through webcasts or materials.

The surprises typically involve an auditing firm taking a position that because an option has a particular feature, it will be assigned a higher value under 123R or have a shorter expensing period (and thus have a higher current and near period expense). Some members are frustrated because these positions seem based on dubious – or at least unsubstantiated – reasoning.

For example, because an option becomes fully exercisable upon retirement (eg. above age 55) and the optionee is already over age 55, the general view appears that it should be assumed that the optionee will retire immediately and the option will fully vest and have a short life – and therefore the current period charge should be high.

Some members point out that the SEC’s guidance states that the best basis for determining option valuation is historic experience, unless there is some reason to view past experience as not representative of the future. If that’s right, these members argue that companies should be able to refute the higher valuation by showing that its insiders have not historically exercised as soon as an option became exercisable – and that optionees have not retired as soon as they were eligible to do so. So far, it doesn’t appear that those arguments are persuasive.

Among its 40+ panels at the “13th Annual NASPP Conference,” a total of seven panels will address different option expensing topics – and there is a horde of option expensing materials available on the NASPP site right now (including archives of a number of webcasts that include FASB members/staff and plenty of Q&A in the popular NASPP “Q&A Forum”).

Vicarious Liability for Global Firms

On July 14th, Judge Lewis Kaplan of the US District Court of the Southern District of New York ruled that a class-action suit brought by Parmalat investors can proceed against Deloitte Touche Tohmastu and Grant Thornton International, the international umbrella organizations, so that these umbrella organizations could be held liable for the actions of their Italian member firms.

While finding an agency relationship between the umbrella organizations and the Italian member firms, the judge declined to find a similar relationship between the Italian member firms and their United States counterparts.

The audit firms had argued that they should not be held responsible for the actions of their international affiliates, which are set up as legally separate and independent partnerships. In his ruling, Judge Kaplan said that the plaintiffs had proven that both Deloitte Touche Tohmastu and Grant Thornton International had acted as principals for their Italian affiliates, both of which had, at different times, audited Parmalat’s books.

The judge specifically noted that the firms market themselves as global organizations – despite disclaimers on their websites that each firm is a “separate and independent legal entity.” So this ruling means the use of independent affiliates as a means of limiting vicarious liability might have limited effectiveness going forward.

SEC Chair and Commissioners Hearings Set for Tomorrow

On Friday, the White House announced that President Bush intends to re-nominate Commissioner Roel Campos as SEC Commissioner for the remainder of a 5-year term expiring June 5, 2010 – and nominate SEC Market Reg Director Annette Nazareth for the remainder of a 5-year term expiring June 5, 2007. As I blogged last week, the US Senate Banking Committee previously scheduled hearings for Tuesday on “Pending Nominations,” which includes the previously nominated Chris Cox as SEC Chair.

July 22, 2005

Morgan Stanley Board Sued Over Severance Packages

On Tuesday, the Central Laborers’ Pension Fund filed a derivative lawsuit in the U.S. District Court of the Southern District of New York against the Morgan Stanley board over the recent severance packages received by outgoing CEO Phillip Purcell and Co-President Stephen Crawford (as well as claims related to other lawsuits that Morgan Stanley recently lost). Heads up – Bill Lerach represents the fund!

Not too surprising this lawsuit was brought given what was noted in this blog last week. And after receiving a letter from AFSCME, Morgan Stanley’s lead director has scheduled a meeting with the union to discuss pay-for-performance and other issues.

Learn more about why severance arrangements are so vulnerable today – and under attack from institutional investors – and how to protect your company from exposure in our “Severance Arrangements” Practice Area on CompensationStandards.com. This also will be an area of focus at the “2nd Annual Executive Compensation Conference.”

Last Call for Paper Stock Certificates

Effective August 1st, due to recent amendments to Section 158 of the Delaware General Corporation Law, companies incorporated in Delaware will no longer be required to make a paper certificate available to shareholders. Outstanding paper certificates are not affected until they are submitted for transfer or other re-issue, or are reported lost. Companies can then convert those shares to uncertificated shares. Of course, Delaware companies are free to continue issuing paper certificates.

Another Stat for the Auditing “Too Big to Fail” Debate

Following up on an earlier blog on KPMG’s troubles, in this article, J.D. Power and Associates reports that last year, almost one in every eight public companies employed three or more Big Four firms for audit and non-audit work – as the larger companies might use auditing firms for all different types of work, including auditing, internal financial control testing, acquisition analysis, software work, and tax and valuation work.

July 21, 2005

US Senate to Consider Confirmation of Cox and Others

According to this Washington Post article, the Senate will hold confirmation hearings next Tuesday for Chris Cox as SEC Chair and Roel Campos and Annette Nazareth as SEC Commissioners.

I blogged last week about how some Democratic Senators had urged that all three be confirmed together to maintain a full complement of SEC Commissioners. However, as far as I know, the White House has not yet formally submitted the names of the two Democrats. I guess we will know soon enough whether this article’s prediction is accurate.

Think SERPs Make Sense? Look at Sandy Weill’s Excessive SERP

Citgroup’s Sandy Weill is in the news about how the Citigroup board is negotiating hard to try to recoup some of the lucrative perks that would be given to Mr. Weill post-retirement in exchange for him being allowed to run a private equity fund and leave as Chair earlier than contracted (if you can believe it, one sticking point is that Weill would have unlimited private plane use on Citigroup’s dime while he works for the fund – does the guy not have enough money already? Or why can’t the fund pay for the travel of its employees? Is using a plane for another business considered “personal use”? Are these stupid questions?).

Anyways, a reporter from the major media called me yesterday to learn more about one of our practice pointers posted on CompensationStandards.com. I repeat this pointer below; it was posted a year ago by an anonymous Task Force member (don’t forget, there are plenty of other pointers in our “SERPs and Other Retirement Benefits” Practice Area) and it analyzes the consulting agreement that was then entered – and for which the Citigroup board now appears to have “buyer’s remorse”:

“You could add much about Sandy Weill’s most recent redo of his employment agreement which will continue until his contemplated retirement in the year 2006. How mightily Weill has prospered during his reign at Citigroup and its corporate predecessors is well known. On the 2003 Forbes “500″ list of most highly compensated executives, Weill ranked No. 27, and on its “400″ lists of richest people, he cracked the world list at No. 377 and made No. 162 in the U.S., with an estimated net worth of more than $1.5 billion.

Does it really serve any valid corporate purpose, after extending his employment contract, to enhance his already earned retirement benefits with a rich consulting agreement – and more? Okay, the consulting agreement is probably worth it to Citigroup because of agreement provisions in the nature of non-compete, anti-piracy, confidentiality protections, etc.

But so long as Weill does not “opt out” of those provisions, then after his retirement he will be entitled to a supplemental pension benefit equal to a $711,000 lifetime annuity, plus certain other benefits and perquisites which, to sum them up, would remain on a par with those still commonly awarded to imperial CEOs. This will be all on top of other hitherto fully earned pension benefits under other Citigroup programs under which Weill’s estimated annual benefit, expressed in the form of a single life annuity, is $350,000.

The “old” plus the “new” annuities look as though designed to keep Sandy on at roughly equivalent of a $1-million-a-year income, notwithstanding all his accumulated non-pension wealth guaranteed to keep him off the public dole during retirement. Another aspect to this is that those pension numbers are expressed in terms of periodic benefits which, when disclosed in the 2004 Proxy Statement, have -or had – a single-sum present-value, which was not disclosed.

As I look at the deal as a whole, if before 2006, Weill sees something worth his while (which will likely give him more than $700,000 a year in a combination of earned income, entrepreneurial wages and post-reemployment benefits), he could bow out of the all the constraints on him that Citigroup supposedly put a value on and leave the extra pension deal on the table. That would not really serve Citigroup’s interests.”

To drive this point home, did you read yesterday’s WSJ article describing notes taken from interviews with nine of the former NYSE comp committee members who confessed they had no idea how large the Grasso SERP would be under the amounts they blessed…

Analysis of Citigroup’s Retirement Disclosure

So how does Citigroup’s disclosure regarding Sandy Weill’s retirement package stack up? Our comp disclosure guru, Ron Mueller of Gibson Dunn, states:

“Reading the Wall Street Journal article, my first thought of course was to see whether Citigroup had described in its proxy the perks that Mr. Weill is entitled to for life.

I’ve copied their proxy disclosure below, but bottom line is that they did do that, specifically calling out his lifetime entitlement to aircraft use, car and driver and security, among others. This shows to me the value of good comprehensive disclosure. Companies are often concerned about “causing a commotion” with a detailed description of an agreement, even when that agreement is on file. But you never know when other factors will “cause a commotion” to arise, and when that happens, it’s certainly better to have had good disclosure in the first place, instead of regretting in hindsight an earlier effort at short-hand disclosure.”

Here is the Citigroup proxy disclosure excerpt noted above:

“Mr. Weill and Mr. Rubin have entered into employment agreements with Citigroup, which are described in detail below. Messrs. Prince, Druskin, and Willumstad do not have any individual employment or severance agreements. Covered executives do not receive any perquisites following retirement other than those to be provided to Sanford Weill under his employment agreement, which is described below.

In 1986, Citigroup’s predecessor entered into an agreement with Sanford Weill (amended in 1987, 2001 and 2003). Under the agreement, as amended, Mr. Weill has agreed to serve as the Chairman of the Board of Citigroup until the 2006 annual meeting of stockholders, unless his employment is terminated earlier in accordance with the agreement. The agreement provides that Mr. Weill will receive an annual salary, incentive awards, and employee benefits as determined from time to time by the board. If Mr. Weill’s employment is terminated as a result of illness, disability or otherwise without cause by Citigroup, or following Mr. Weill’s retirement from Citigroup, all of his stock options will vest and remain exercisable for their full respective terms. In the event Mr. Weill’s employment is terminated as a result of his death, illness, physical or mental disability or other incapacity, he (or his estate as the case may be) will receive the annual salary and employee benefits in effect immediately prior to such termination through the end of the year during which such termination occurs or for six months following such termination, whichever is greater, and such additional payments relating to incentive, death, retirement, or other matters as may be determined by the board or a committee. In the event his employment is terminated by Citigroup, upon at least 120 days notice, without cause, or by Mr. Weill upon at least 30 days notice in the event of a breach by Citigroup of any of its obligations under the agreement, he will receive a lump sum amount in cash equal to the sum of his annual salary in effect prior to his termination through the effective date of his termination and the amount paid as his annual bonus for the prior fiscal year, prorated for the period of his employment during the fiscal year in which the termination occurs. Following such termination or retirement, Mr. Weill shall be subject to certain non-competition, non-hire, and other provisions in favor of Citigroup. These provisions shall be applicable for the remainder of his life, subject to his ability to opt out after a minimum period of ten years following such termination or retirement. So long as he does not opt out of such provisions, he shall be entitled to receive a supplemental pension benefit equal to a $350,000 annual lifetime annuity and access to Citigroup facilities and services comparable to those currently made available to him by Citigroup consisting of the use of corporate aircraft, car and driver, office, secretary and security arrangements. In addition, pursuant to the agreement by Citigroup’s predecessor in 1986 to match Mr. Weill’s previous employer’s health care benefits, Citigroup will continue to pay, for Mr. Weill’s lifetime and his spouse’s lifetime should she survive him, the premiums and out-of-pocket expenses associated with receipt of health and dental care benefits by Mr. and Mrs. Weill, and life and accidental death and dismemberment as well as disability insurance for Mr. Weill. Mr. Weill will also continue to receive a tax gross-up with respect to the imputed income arising from these benefits. Because neither the future cost of these facilities and services nor Mr. Weill’s usage of them can be predicted, the projected costs cannot be quantified. In addition, for a period of at least ten years following such retirement, Mr. Weill is required under the agreement to provide consulting services and advice to Citigroup for up to 45 days per year for which he will be paid a daily fee for such services equal to his salary rate at the time of his retirement.”

July 20, 2005

Get Ready to Rumble! ’33 Act Reform Adopting Release & Webcast Series

Yesterday, the SEC posted the 468-page adopting release for its ’33 Act reform; the text of the rules and amendments begin on page 306. The SEC’s site ran slow yesterday as everyone rushed to print it off. I guarantee that I will not receive a gold star for being the first one to read it all.

Just announced! As promised, here is our special series of webcasts that will drill down into how the new ’33 Act reform will change how we do deals. The overall series is designed to separately analyze how each specific type of deal will change, rather than provide a broad overview of the reform. Here is what the series looks like at this point:

- “Drilling Down: Doing a WKSI Deal After the ’33 Act Reform”; on September 8th featuring Jack Bostelman of Sullivan & Cromwell; John Huber of Latham & Watkins; David Martin of Covington & Burling

- “Drilling Down: Doing an IPO After the ’33 Act Reform”; on September 14th featuring Justin Bastian of Morrison & Foerster; Steve Bochner of Wilson Sonsini, Goodrich & Rosati; and Michael Wishart of Goldman Sachs

- “Drilling Down: Seasoned/Unseasoned Issuers and Voluntary Filers Doing Deals After the ’33 Act Reform”; on September 22nd featuring Brian Lane of Gibson Dunn & Crutcher; Richard Langan of Nixon Peabody; and David Miller of Faegre & Benson

A Look Back at the 2005 Proxy Season

Here is an interesting article from ISS about the recent proxy season. Fewer shareholder proposals and proxy contests, so maybe we already hit the activist high water mark? Or is activism coming in more flavors these days…

It’s Not How You Disclose It, It’s How You Fold It!

With all of the attention being placed on what must be disclosed, one member shared a recent decision by the National Credit Union Administration to deny conversion of a credit union (Community Credit Union of Plano, Texas) to a mutual savings bank – one reason for the NCUA’s denial was that the credit union had failed to properly fold the disclosure materials in their envelopes.

From what I hear, the NCUA is doing whatever it can to prevent credit unions from converting to mutual savings banks (in essence, a regulatory turf war – the NCUA doesn’t want to lose constituents). Recently, I hear the NCUA has been more stringently applying its limited disclosure rules (see Part 708a of the NCUA Regulations for those rules) and has used its review process to place more obstacles in the path of credit unions seeking converting, such as this “folding the disclosure materials” deal killer.

Sadly enough, folding disclosure materials isn’t too far off what many of us agonize over on a regular basis – who hasn’t debated at length about the relative placement of disclosures, such as the order of risk factors? One old-timer reminds us that before EDGAR, we used to have serious arguments about how to staple SEC filings! Them were da days!

July 19, 2005

How to Track Compliance with Stock Ownership Guidelines

A growing number of companies are imposing stock ownership guidelines on their officers and directors. One practical question is: “how does the company track compliance with the new guidelines?” Often that compliance matter is tasked to the Board’s Compensation or Corporate Governance Committee – of course with the assistance of the corporate secretary or legal department.

One way to go about this is to regularly update a D&O ownership chart that is then included in the materials that go to the appropriate board committee. This chart can be updated for each committee meeting and re-circulated.

Along these lines, I have posted a sample “Stock Ownership Guidelines Monitoring Chart” in our “Stock Ownership Guidelines” Practice Area and in the “Sample Document Library.”

Check Out the DealLawyers.com Blog

Come check out the new DealLawyers.com blog. This blog consists of all the entries from “The Deal Guys Blog,” “Moloney’s M&A Scoop Blog” and “Trust and Anti-Trust – the Antitrust Blog.” Tell your friends – and I look forward to hearing from all of you on M&A matters to keep that blog relevant for M&A practitioners, much as so many of you keep me posted on issues for this blog!

Fraudsters Speaking Out on Fraud

In this podcast, Gary Zeune, Founder of “The Pros & The Cons,” provides a look at the interesting things he is doing (he runs the only speakers bureau for white collar criminals), including:

- What is your speaker’s bureau and what is its purpose?

- How do you go about procuring speakers who have committed frauds?

- Can you give us a little bit of background on your “SAS 99 in 10 Easy Steps” program?

- How about your “Fraud: 10 Scariest Cases” program?

Cisco, SEC Face Pressure to Hold Public Hearings on Exchange-Traded Employee Options

I blogged a few months back about Cisco’s concept of creating exchange-traded employee options – and that Cisco was in discussions with the SEC Staff about this plan’s viability. Now, Bloomberg reports in this article that the Council of Institutional Investors and Ohio and Florida state pension funds want public hearings on this concept before the SEC gives a “green light.” This request could be moot as we don’t know whether the SEC is intending to allow this concept to fly anyways.

July 18, 2005

Section 162(m) Disclosure Developments: The Shaev Case

On Friday, Mike Melbinger blogged this disturbing news in his “Melbinger’s Compensation Blog” on CompensationStandards.com: “Apparently some plaintiffs class action lawyers are suing companies for their 162(m) disclosures based on the Shaev v. Datascope Corp. (3d Cir. 2003), case. In Shaev, the court found a potential violation of federal securities laws where the corporation allegedly did not fully disclose the material terms of an executive’s incentive compensation program.

The court held that the material terms of the company’s incentive plan and the performance goals on which the chief executive’s compensation was based were “material” within the meaning of Code Sec. 162(m)(4)(C)(ii), even though the specific business criteria, discussed in Reg. §1.162-27(e)(4), were not. Thus, the company’s failure to disclose those terms could be a material omission under SEC Rule 14a-9.

In other cases, lawyers are alleging that the Compensation Committee report promised pay-for-performance – but then adopted a plan that paid significant amounts no matter what. Although these claims seem legally unsupportable, companies should pay more attention to both the Compensation Committee Report discussion of Internal Revenue Code Section 162(m), and the description of the plan in the shareholder approval section of the proxy statement. So let’s be careful out there.”

In our “Section 162(m) Policies” and “Section 162(m) Compliance” Practice Areas on CompensationStandards.com, we have numerous practice pointers about how you – and your compensation committee – can reduce liability for your 162(m) disclosures, including this handy “Section 162(m) Compliance Checklist” from Tim Sparks.

SEC Posts Shell Company Adopting Release

On Friday, the SEC posted the adopting release that provides guidance on how shell companies can – and can’t – use Forms S-8, 8-K and 20-F.

Settlement Pipeline Soars Past $15 Billion

Bruce Carton reports on his blog that the ISS Settlement Pipeline, which reflects the sum of all pending or tentatively announced securities class action settlements for which the claim deadline has not passed, has soared to an amazing $15.006 billion. Introduced in July 2004 at a then-impressive $5.5 billion, the ISS Settlement Pipeline has been boosted significantly by the historic settlements in the WorldCom and Enron cases. The top 10 settlements currently in the pipeline are as follows:

1. WorldCom (combined): $6.12 billion
2. Enron (combined): $4.7 billion
3. IPO Securities Litigation: $1 billion
4. McKesson HBOC: $960 million
5. Dynegy: $473 million
6. Broadcom Corp.: $150 million
7. TXU Corp.: $149.75 million
8. BankOne Corp (First Chicago): $120 million
9. Deutsche Telecom AG: $120 million
10. CVS Corp.: $110 million