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Monthly Archives: July 2006

July 31, 2006

PCAOB Issues Guidance for Auditors on Option Backdating Issues

On Friday, the PCAOB issued an alert regarding stock options grants entitled “Matters Relating to Timing and Accounting for Options Grants.” In the alert, the PCAOB advises auditors that backdating practices may have implications for audits and internal control reviews – and discusses factors that may be relevant to assess related risks.

Essentially, the PCAOB says that auditors should inquire about option grant timing at their clients to make sure that there are no misdating issues. Auditors are supposed to make these inquiries routinely as part of their year-end audit as well as whenever a prior audit is included in a registration statement. Not really a big surprise given that many auditors already have adjusted their procedures within the past few months to cover themselves going forward.

As the WSJ noted in this Saturday article, this guidance could unleash a wave of restatements. The article also notes that the PCAOB identified “springloading” as a potential problem – counter to SEC Commissioner Atkins’ recent speech on the topic.

As an aside, note that this is Audit Practice Alert #1 from the PCAOB – a new type of guidance for them (intended to “highlight new, emerging, or otherwise noteworthy circumstances that may affect how auditors conduct audits under the existing requirements of PCAOB standards and relevant laws”). The PCAOB still has a long way to go to catch up with the SEC and its dozens of guidance avenues…

Director Liability and Responsibilities: After Disney

We have posted a copy of our CompensationStandards.com transcript for the webcast: “Director Liability and Responsibilities: After Disney.”

A Funny Thing Happened On The Way To Convergence

From the “AAO Weblog“: “The driver of the convergence bus decided to put it into neutral for a while. The International Accounting Standards Board released a bombshell yesterday that’s gone pretty much unnoticed in the US press. (Though the Financial Times picked it up.) The IASB is declaring a moratorium on the effective date of any new International Financial Reporting Standards (IFRS) or major modifications of existing standards until after January 1, 2009.

The only other mention I could find in the world press was this from the Irish Examiner, who said the “Institute of Chartered Accountants in Ireland (ICAI) has welcomed the announcement by the International Accounting Standards Board (IASB) that it will suspend the introduction of new accounting standards until 2009.” That’s not what the IASB said: they said there’d be no new standards effective until 2009. They didn’t say they wouldn’t issue new standards until 2009. Keep your hopes in check, guys.

The idea behind the moratorium: give folks in the European Unionsome time to catch their breath. The transition to IFRS has been difficult in many countries, and this will give them a chance to evaluate their situations in less of a panic mode. Furthermore, the IASB will slow down some of its work with the FASB on a joint conceptual framework project.

And some of the comments of Sir David Tweedie in the Financial Times article, indicate the delay might also calm down some constituents “inflamed” by a February announcement of the IASB and the FASB to speed up “writing joint standards in 11 areas by 2008 and to examine existing standards in 10 other areas.”

It’s not a bad idea, and in fact it synchronizes well with the SEC’s own convergence plans. (Recall that there’s currently a requirement for a foreign company to reconcile the accounting used in its financial statements to US GAAP-based accounting. By 2009, the SEC wants to eliminate that requirement if IASB standards are used by a foreign company – provided the Commission is satisfied with the IASB standards in place by that time.)

The danger is that, rather than use the time to get on board with the IASB standards, companies will use the time to try and exploit politics to further avoid the standards or roll them back. And delays might become a serial habit, with or without political interference. Keep tuned. (For the next few years.)”

July 28, 2006

Hubbub Over Quarterly Earnings Guidance

Some pretty interesting commentary in the wake of Monday’s Symposium sponsored by the CFA Centre for Financial Market Integrity and the Business Roundtable. During the Symposium, three principal messages were imparted: (1) companies should cease providing earnings guidance, (2) they should tie executive portfolio manager performance (and disclosure thereof) to long term metrics, and (3) they should provide greater communication and disclosure of long term strategies and metrics of long term value creation.

We have posted a summary of the Symposium proceedings in our “Earnings Releases” Practice Area. And it’s probably about time for me to re-do this survey on earnings release practices and see what the results would look like now. Here is a more recent survey from McKinsey.

According to this WSJ article, SEC Chairman Cox said that these calls for companies to stop issuing quarterly earnings guidance are “healthy recommendations.” And the WSJ reports that former SEC Chairman Bill Donaldson supports efforts to get companies to stop issuing quarterly earnings estimates, but that he warned groups pushing the issue Tuesday that any move in that direction should be balanced by increased disclosure of other factors, like long-term strategic goals.

But in an editorial from the Financial Times entitled “Misguided Guidance,” a different perspective is presented. Below is the FT editorial:

“When both company bosses and fund managers agree that quarterly earnings forecasts harm US business it is time to listen. The Business Round-table Institute for Corporate Ethics and the CFA Institute say in a new report that the practice “leads to the unintended consequences of destroying long-term value, decreasing market efficiency, reducing investment returns, and impeding efforts to strengthen corporate governance”. None of those consequences is good.

The investment community has, in effect, been asking companies to lie to them four times a year. Few investment projects deliver a return inside three months. Investments by an oil company in a new production field take decades and a quarterly forecast means nothing. What is worse, as any schoolboy will tell you, is that lies once told are not forgotten. Quarterly forecasts can only be met if a company is managed toward them. Pressure to hit quarterly numbers is one factor behind the culture of lies that devoured Enron.

It would be unfortunate, though, if efforts at reform made companies less open and transparent. Financial markets breathe information and forward-looking information is especially pure oxygen. Reform that increases investors’ uncertainty over corporate prospects would harm investment returns just as surely as quarterly guidance. Nor should formal guidance be replaced by unofficial numbers, delivered to a favoured analyst over an expense account lunch. Privileged access to information was a feature of the dot-com era now rightly discarded.

Rather than starve the markets of information, companies should think afresh about what guidance best reflects their business, and how they give it. Investors want to know how much oil Shell will produce in 10 years’ time. They want to know how Microsoft will deal with the competitive threat from Google. From small technology companies, however, which need to raise more capital, they want regular information about prospects. It is short-term guidance, not forecasting hard numbers, which causes the problem. In Japan, not known for a short-term outlook, all listed companies must forecast their turnover and profit for the year ahead.

The victims of scrapping quarterly guidance will be the financial journalists, sell-side analysts and hedge fund traders who profit from the use, abuse and interpretation of news. Their hunger for information has made it hard for any company, particularly a small company, to unilaterally end quarterly guidance, when it knows that doing so will mean less media coverage, less analysis and less liquidity in its shares. Companies have to be careful that stopping quarterly guidance is not seen as an attempt to cover up bad news.

Now, though, US corporations have the opportunity to guide their investors in a new direction. It is an opportunity they should embrace.” Read more commentary in the “AAO Weblog” and the “D&O Diary.”

I’ll Trade You a Jeff Skilling for Two Dennis Kozlowskis

As the fourth anniversary of Sarbanes-Oxley approaches this Sunday, July 30th, it may be interesting to take a look back over the past four years to see how the legislation has affected businesses across the country. Yeah right – I would rather have a little Friday fun…

I was a big baseball card nut when I was a kid. So I shed a tear or two when I saw this deck of trading cards from the Slate with all the stars from this generation’s corporate scandals (click on the cards to see them up close; the backs of the cards are hilarious). You can even recognize some of the borders as mimicking old Topps sets. Thanks to Andy Gerber for the heads up!

Con Artist Obtains Shareholder Data from ADP

There have been so many reported instances of security breaches at companies by hacking or an employee simply leaving a laptop in a cab, it was almost comforting to read about ADP being conned by an impersonator. According to media reports, including yesterday’s WSJ, ADP gave shareholder lists to “an unauthorized party” who impersonated numerous corporate officers between November 2005 and February 2006.

The information provided included names, addresses and number of shares owned by individual investors, but did not include account numbers, social security numbers or identify the brokers where shares were held. I’m not sure which particular companies were targeted as media reports don’t disclose that information – for example, this older WSJ article only says:

“Fidelity Investments said 125,000 of its customers were among those whose information was breached. UBS AG said about 10,000 of its customers were affected, while Morgan Stanley said about 3,800 of its clients were affected.”

July 27, 2006

SEC Adopts Executive Compensation Disclosure Rules

Yesterday, the SEC adopted new executive compensation disclosure rules (as well as related-party transaction and Form 8-K rules) as expected. The SEC appeased the mass media by focusing quite a bit on option backdating in its press release. Otherwise, there was not too much in the way of change from the proposals as described at a two-hour open Commission meeting – but that’s not to say that the changes wrought by the new rules will not be dramatic! And of course, the adopting release will be key to ascertain the extent to which fine-tuning changes were made to the SEC’s proposals other than the ones identified below.

Some useful information is in this opening statement from the Corp Fin Staff – and the SEC also issued this sample Summary Compensation Table. Here are Chairman Cox’s opening remarks.

The new Compensation Discussion and Analysis remains the centerpiece of the SEC’s new rules – and it is required to be “filed.” In addition, a new Compensation Committee report is now required to be “furnished.” This new CCR is designed to keep compensation committees on their toes, as it is required to address whether the committee has reviewed and discussed the CD&A with management. While the SEC is strictly neutral as to the level and design of compensation, we expect boards that have embraced sound practices will go beyond the statements required under this new rule and will proactively state that they consider the amounts paid to be reasonable and appropriate.

In the Summary Compensation Table, only above-market or preferential earnings (rather than all earnings) on non-qualified deferred compensation is required to be included. The required defined benefit pension plan disclosure is now limited to the actuarial present value of a Named Executive Officer’s accumulated benefits.

In terms of gauging who should be identified as the NEOs, the SEC tweaked its proposal so that the metric is not the new Total Compensation column – rather, companies can back out the numbers from the two columns regarding preferential earnings on deferred compensation and increases in pension values when they identify their NEOs. This tweak addresses comments that using the Total Compensation numbers would unnecessarily skew inclusion of longer-term officers as NEOs.

I was surprised that the SEC re-proposed the so-called “Katie Couric” proposal (ie. requiring disclosure compensation for three employees who are not executive officers). As re-proposed, this rule would carve out non-executive officers with no responsibility for significant policy decisions and would only apply to large accelerated filers. This re-proposal likely will draw significant comment as before – and some clarification may be necessary because it’s worded in the negative, so it’s difficult to tell if it is intended to pick up Rule 3b-7 officers. To me, this part of the SEC’s overhaul is extremely minor in the entire scheme of things; I’m consistently amazed how some incidental issue in a rulemaking project distracts so many from the bigger – and more pressing – issues.

More extensive notes – which identify a few other changes from the proposals known so far – are posted on CompensationStandards.com under “The SEC’s New Rules.”

The new rules apply to the upcoming proxy season, compliance is required for fiscal years ending on or after December 15, 2006. For the new Form 8-K rules, compliance is required sooner – for triggering events that occur 60 days or more after the rules are published in the Federal Register. I’m still amazed the Staff got these rules out in such short order…

Act Fast to Get Your Washington DC Hotel Room

Now that the new executive compensation disclosure rules have been adopted, you need to act fast to reserve a hotel room for our Conference – “Implementing the SEC’s New Executive Compensation Disclosures: What You Need to Do Now!” – which will be held live in Washington DC at the Marriott Wardman Park on September 11-12. Rooms are filling up fast – here is how to obtain special room rates.

If you come to Washington DC to take in the conference, you still will get access to the video archive of the Conference, which will be important when you actually sit down to draft – and review – disclosures during the proxy season. The Conference is still available by videoconference if you can’t make it to Washington DC on those days.

If you haven’t yet, check out this detailed conference agenda to understand the types of challenges you should expect to face from the new rules.

Option Backdating (And Much More) at the NASPP Annual Conference

With the option backdating scandal dominating the headlines and creating so much work for outside counsel, the NASPP has just added former SEC General Counsel Ralph Ferrara as the keynote speaker for its 14th Annual Conference in Las Vegas – and Ralph will join Stan Keller and Professor Jesse Fried on a panel to discuss “How to Avoid the Next Scandal (and Protect Yourself).” In addition, Stan Keller and Susan Daley will headline a new panel that will parse the issues implicated by the option backdating scandal.

This is in addition to more than 40 other panels on key compensation topics, many of them key to understand the practices that will now need to be described in next year’s proxy statements. And the NASPP’s Annual Conference includes the “3rd Annual Executive Compensation Conference” as part of the Conference – it falls on the middle day of the NASPP Conference – at no extra charge. Register today!

July 26, 2006

Using a Form 10-Q as a Free Writing Prospectus

Corel Corporation, a Canadian issuer, filed an IPO on Form F-1 that went effective on April 26. They filed their first Form 10-Q on May 5, and concurrently filed this free writing prospectus that basically just adds an FWP legend to their Form 10-Q.

Linda DeMelis of Heller Ehrman Venture Law Group notes: “I suspect Corel did this because they were in the immediate post-effective period of their IPO. Previously, they might have done a sticker supplement or even a post-effective amendment. The same strategy could probably be used to keep resale S-1′s and SB-2s up to date; currently, those forms are a real problem to update because they don’t permit forward incorporation by reference.”

Issues Raised by Employee-Bloggers

As more companies are becoming aware of the numerous – and complex – issues raised when their employees blog (either anonymously or authorized), policies that address these issues have materialized. For example, Sun Microsystems has many employees that blog – and has made their blogging-related policy publicly available.

In this podcast, Karen Dempsey of Heller Ehrman analyzes the federal securities law issues raised when employees blog, including:

- What are some examples of company’s authorizing employee blogs?
- How can a company tell if an employee is blogging anonymously?
- What are the Regulation FD implications of employee blogging?
- What about Rule 10b-5 implications?
- Do you have any thoughts on how companies can minimize the risks of employee blogging?

The Condiment Approach: Solicitation Via Ketchup

In the midst of a vicious proxy fight with activist shareholders, HJ Heinz is distributing ketchup bottles with its familiar label containing a message urging employee-shareholders to vote with management.” A picture of this cool bottle is on the DealBooks.com Blog. I’m waiting for the insurgents’ inevitable response that they are tired of Heinz “making them wait” for S-L-O-W growth. Remember the TV ads to the tune of “Anticipation?

From Jim McRitchie’s CorpGov.net: “H.J. Heinz Company (NYSE:HNZ) said retail shareholders with “street name” holdings (shares held through brokers or intermediaries) of approximately 75 million shares (30% of outstanding shares) have been prevented by a combination of actions by the Trian fund and ADP Proxy Services from casting votes via the Internet or by telephone since July 17.

Street name shareholders trying to use the Internet or phone system receive an “error” message from the ADP system that their control number on their proxy card is wrong, when the real issue is that the Internet and phone system at ADP is not working. Until this problem is remedied, the only way for these shareholders to vote is by mail. (Heinz Retail Shareholders Prevented from Voting via Internet or Telephone, Pittsburgh Daily Business News, 7/24/06)

At an employee meeting this past week, the company distributed bottles of its signature product with labels urging them to re-elect the firm’s slate of directors and reject those nominated by Peltz and his partners. Peltz and his New York-based Trian Group, an investment firm that owns 5.5 percent of Heinz’s shares, are seeking to add his board nominees to implement an aggressive plan designed to boost shareholder returns. (Heinz Enlists Ketchup Ally, theday.com, 7/23/06) For a discussion of the issues, see Heinz Proxy Fight Heats Up, ISS Corporate Governance Blog, 7/24/06).”

July 25, 2006

The SEC’s New Chief Accountant

Yesterday, SEC Chairman Cox appointed Conrad Hewitt as the SEC’s new Chief Accountant. Hailing from Cox’s home state of California, where he last served as California’s Superintendent of Banking – Conrad has been retired for about 8 years, not typical for a Chief Accountant. Conrad currently serves on several boards and was a managing partner for Ernst & Young for 23 years.

California Senate Amends Its Majority Vote Bill

At the end of June, the California majority vote bill wound its way through the Senate – SB 1207 (Alarcon) – and was amended. This bill would facilitate the ability of listed companies incorporated in California to amend their by-laws or articles to provide for the election of directors by a majority vote. Before amendment, the bill had required use of majority – rather than plurality – voting to elect a director of a publicly-traded, listed California corporation in an uncontested election and would have required an incumbent director who failed to receive a majority vote in an uncontested election to resign within 90 days of the election.

The bill supporters include CalPERS, CalSTRS, AFSCME and SEIU. In opposition to the mandatory requirements are American Electronics Association, California Bankers Association, California Business Roundtable, California Chamber of Commerce, California Hospital Association, the State Bar of California Corporations Committee of the Business Law Section and the United Hospital Association.

The “Skinny” on the California Bill Amendments

Our California law expert, Keith Bishop, provides this analysis: “There is a quite a bit of irony attached to this bill. For better or worse, California’s General Corporation Law has been highly supportive of cumulative voting. In fact, the opportunity to vote cumulatively is mandated for nearly all California corporations and for those foreign corporations that are subject to California’s pseudo-foreign corporation statute (Corporations Code Section 2115). It was many years after the adoption of the CGCL that the legislature finally relented to permit NYSE, AMEX and Nasdaq National Market listed issuers to eliminate cumulative voting.

One consequence of California’s strong attachment to cumulative voting is that the CGCL has carefully drafted provisions regarding the removal of directors. Under Corporations Code Section 303(a), any or all of the directors may be removed without cause by the outstanding shares (i.e., the affirmative vote of a majority of the shares entitled to vote). For example, if a corporation has 100 shares outstanding, removal requires at least 51 affirmative votes. Furthermore, no director may be removed (unless the entire board is removed) if the votes cast against removal or not consenting in writing to removal, would be sufficient to elect the director if voted cumulatively at an election at which the same total number of votes were cast (or if the action is taken by written consent, all shares entitled to vote were voted). While this may sound complicated, the idea is not. Without such a requirement, the holders of a majority block could remove a director elected under cumulative voting. This, of course, would make cumulative voting illusory.

SB 1207 in its current form would gut these protections by allowing a corporation to amend its articles or bylaws such that in uncontested elections “approval of the shareholders” would be required to elect a director. Under the CGCL, “approval of the shareholders” means approved by the affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum). For example, if a corporation has 100 shares outstanding and 51 are present at a meeting, then a director would need to obtain at least 26 votes to be elected. Thus, directors could be in effect removed by as few as 26% of the shareholders. Further, SB 1207 would allow these changes to the articles of bylaws to be effected by approval of the shareholders rather than approval of the outstanding shares.

Cumulative voting and majority voting are fundamentally incompatible. In fact, Hewlett Packard recently cited cumulative voting as a basis for opposing a stockholder majority vote proposal: “The HP policy also gives stockholders a meaningful role in the director election process without interfering with cumulative voting. The ability to cumulate votes in director elections is universally recognized as protecting stockholder rights. A majority voting standard may raise difficult issues in the context of cumulative voting. While the rules governing plurality voting are well understood, majority voting at companies that have cumulative voting presents technical and legal issues for which there is no precedent. These difficulties have led the American Bar Association Committee on Corporate Laws, the Council of Institutional Investors and the Institutional Shareholder Services Institute for Corporate Governance to indicate that majority voting should not apply to companies that allow cumulative voting. HP’s voting system must be a reliable process for the election of qualified directors to represent the interests of all of our stockholders. In the absence of uniform, workable standards that can be consistently applied by all companies and that take into account the special circumstances of companies with cumulative voting, HP believes it would be inappropriate to adopt a majority voting standard.”

Given the negative impacts of SB 1207 on cumulative voting, I find it ironic that this bill is being sponsored by CalPERS. By statute – Government Code Section 6900 – CalPERS is required to vote its shares to permit or authorize cumulative voting.”

July 24, 2006

First Criminal Action Brought on Option Backdating

The media has been eating up Thursday’s announcement from the DOJ and the SEC regarding their first criminal action brought against a company for option backdating (here are remarks from SEC Chair Cox). As noted in this press release (and litigation release and complaint), the former CEO and head of Human Resources for Brocade Communications are in the crosshairs. Here are some thoughts in the wake of this action:

- We’re going to see a quick succession of cases, the SEC said it has over 80 in its Enforcement pipeline

- Officers don’t necessarily have to financially benefit personally to be a target of the DOJ and SEC

- Doctoring minutes and other corporate documents can lead to regulatory action (and regulators will pursue those doctoring documents, not just the officers who may have directed their subordinates)

See the White Collar Crime Prof Blog and the D&O Diary Blog for some more observations about the Brocade complaint. As the LA Times noted in this article, the US Attorney’s office now has a task force to investigate improper option grants – which includes an unspecified number of FBI agents!

Disclosure of Your Option Granting Process

With the SEC’s upcoming executive compensation rules likely to require disclosure about how companies make their grants, the first companies are voluntarily describing their granting processes in SEC filings. For example, Broadcom described a few details in this recent Form 8-K. I haven’t seen similar disclosures in Form 10-Qs or 10-Ks yet, but most companies haven’t been required to file those documents since backdating issues were thrust under the microscope. I would expect to see more of these disclosures when companies begin to file their Form 10-Qs for the quarter ended June 30th in the next week or so. We have about five dozen Form 8-Ks listed in our “Timing of Stock Option Grants” Practice Area on CompensationStandards.com.

By the way, the Council of Institutional Investors just started posting responses to their letter which asked companies if they had backdating issues – and these responses are available to the general public! In the past, they made responses to other letters they had sent to companies only available to CII members…

Creating an Stock Option Grant Policy

After boards review the allegations in the Brocade complaint, one reaction by the corporate community may be the disappearance of the fairly common practice of delegating authority to make option grants. State laws, such as Section 157(c) of the the DGCL, permit the board to delegate the authority to make option grants to one or more officers (who don’t have to be directors) – and it hasn’t been uncommon for boards to exercise their authority to delegate so that executive officers are the ones that make grants to employees below the executive level.

As I mentioned in our Q&A Forum on Friday, some companies appear to be considering adopting policies that would formalize their option grant processes, including implementing the concept of an open window period (eg. grants can be made only during a specified period of time each year, except for new hires) – similar to the use of such periods in insider trading policies which dictate when directors and officers are allowed to make trades in company stock.

For those companies with broad-based option plans, it probably is unrealistic that a compensation committee would get together to make decisions and sign resolutions for each of the many grants that would be need to be made during course of a year. So either delegation for lower level employee grants will continue to be delegated to executive officers – or perhaps practice will change and instead of new hires getting grants on their hire date, there will be a meeting held each quarter when the compensation committee makes grants to all employees hired during that quarter.

We will be exploring this developing area in the next issue of The Corporate Counsel as well as on this site. In addition, ISS’s recommendations on page 7 of this Option Backdating White Paper might serve as a good starting point when looking for ideas when drafting such a policy. Let me know if you have already done so as I am researching what the trends are here…

30% of Companies Have Backdating Issues? The Witch Hunt Continues?

As I have blogged before, it seems like there is a lot of questionable thinking about stock options these days. The latest academic study – from Professors Erik Lie and Randall Heron – assert that over 2,000 companies have engaged in option backdating. My gut tells me there is something fishy about this one.

First, I deal with a lot of people that either administrate these plans – or advise those that do – and I did not become aware of such abuses until last year’s Mercury revelation. And my experience jibes with anyone else that I talk to “on the inside.” So many good people can’t be lying.

And just look at the results from this recent NASPP survey. Among other questions, it was asked “In light of the controversy over grant dates, are you undertaking an internal investigation of your grant dating procedures? There were over 600 respondents who indicated:

- Yes, already completed it – 17.0%
- Yes, in progress now – 18.5%
- Planning to do so but haven’t started it yet – 2.7%
- Still deciding whether this is necessary – 7.0%
- No, we already know we’re okay – 53.6%
- Not unless we’re forced to by investors or regulatory authorities – 1.2%

Just glancing at the articles written about the study, I have some questions for Professors Lie and Heron. For example, can it possibly be correct to assume, as the they do, that the baseline for stock growth or decline following any given option grant is that “half should be positive and half should be negative?” In the context of steadily rising markets, don’t stocks go up more often than they go down?

I suppose I should read the study before launching a critique – but based on what I have read so far and from my own experience, I remain skeptical that illegal backdating problems are so universal. Those Section 16 reports can be tricky to interpret and may account for the discrepancy between my gut and the Professor’s 30% level. Thanks to Rick Wood of Kirkpatrick Lockhart for his thoughts!

July 21, 2006

Packaging the Corporate Investigation for Prosecution

In this podcast, John Kocoras, Managing Director and Regional Counsel in the Business Intelligence & Investigations division at Kroll, provides some insight into white-collar prosecution developments, including:

- What trends do you see in white-collar prosecutions?
- What effects do you see these trends having on companies?
- What investigative tips can you give in-house counsel when they are advised of potential wrongdoing by high-level employees?

Forward-Looking Information Safe Harbor: Incorporation By Reference Case

From “The 10b-5 Daily Blog“:The PSLRA’s Safe Harbor for forward-looking statements is designed to encourage companies to provide investors with information about future plans and prospects by limiting their potential liability for these statements. Under the first prong of the Safe Harbor, a defendant is not liable with respect to any forward-looking statement if it is identified as forward-looking and is accompanied by “meaningful cautionary statements” that alert investors to the factors that could cause actual results to differ.

In the case of oral forward-looking statements, the PSLRA specifically provides that the meaningful cautionary statements can be incorporated by reference in a readily available written document. The statute is silent, however, about whether this is also true for written forward-looking statements. A surprisingly small number of courts have addressed this issue, but the trend appears to be in favor of finding that a company’s incorporation by reference is sufficient.

In Yellen v. Hake, 2006 WL 1881205 (S.D. Iowa July 7, 2006), the court addressed a securities class action brought against Maytag Corp. The court found that “[w]hile the Safe Harbor provision does not explicitly provide for incorporation by reference for written forward-looking statements” it is implicit in Congress’ direction that courts consider “all information and documents relevant to a determination of whether a defendant has given adequate warnings.” Accordingly, the court agreed to consider warnings contained in Maytag’s 2004 Annual Report that were incorporated by reference in the press release and investor presentations that allegedly contained false or misleading forward-looking statements.

Michael Eisner: He Ain’t No Larry King

More summer fun…flipping around a few nights ago and came across former Disney CEO Michael Eisner’s new cable talk show: “Conversations With Michael Eisner.” From this article, it doesn’t seem like the show has “legs.”

It was painful to watch. Eisner clearly is not a natural at drawing others out; not surprising for a guy used to having his way for decades. I’m sure I was projecting onto him, but I half-expected him to reach out and grab Goldie Hawn by the throat – even though they seemed to be friends. Here are some pretty funny Eisner anecdotes from DealBreaker.com.

July 20, 2006

SEC to Consider Adopting Executive Compensation Rules

Yesterday, the SEC announced that it will hold an open Commission meeting next Wednesday – July 26th – to consider adopting the executive compensation rules. My guess it will then take the Commission at least a week to issue an adopting release.

Today’s WSJ includes an article that provides some predictions of changes to the SEC’s proposals – none of them shocking – such as scrapping the “Katie Couric” proposal that would include non-executives in the Summary Compensation Table, keeping the stock performance graph and requiring details of option granting practices. This will be Commissioner Casey’s first open Commission meeting fyi…

New Conference Dates – And Now Live in Washington DC!

Now that we know the new executive compensation disclosure rules will be adopted soon, we are meeting the overwhelming number of requests from members – who apparently couldn’t bear the thought of watching a two-day conference from their computer – so that our Conference (“Implementing the SEC’s New Executive Compensation Disclosures: What You Need to Do Now!“) will be held live in Washington DC at the Marriott Wardman Park (please wait a day to call the Marriott to get special room rates – we are still working on those arrangements). The Conference will still be video webcast live as well.

The Conference dates have been pushed up slightly – it will now be held on September 11-12, instead of September 13-14. These new dates were the only ones available at a hotel large enough to accommodate the Conference.

If you come to Washington DC to take in the conference, you still will get access to the video archive of the Conference, which will be important when you actually sit down to draft – and review – disclosures during the proxy season.

An incredible number of members have already registered for the video conference – if you would rather attend live in DC, check out these FAQs to figure out the best way to change the nature of your registration.

If you haven’t yet, check out this detailed conference agenda to understand the types of challenges you should expect to face from the new rules.

Audit Committees in Action: The Latest Developments

We have posted a copy of the transcript from the webcast: “Audit Committees in Action: The Latest Developments.”

Avoiding a Potential FAS 123(R) Trap: Anti-Dilution Provisions in Equity Plans

The Big 4 apparently are at it again with yet another restrictive interpretation of FAS 123R. This one would require an earnings charge in the event of an equity restructuring (e.g., stock split) or business combination if an equity plan has a permissive rather than mandatory adjustment provision. I have received dozens of e-mails over the past few weeks about this issue and am glad that the first batch of memos on the topic are now out.

Here is a brief snap shot of the issue from Dorsey & Whitney:

“Some major accounting firms are advising clients that the typical anti-dilution provisions of existing equity compensation plans may need to be amended in order to avoid potentially significant increases in compensation expense associated with adjustments to equity awards in connection with stock splits, stock dividends or other changes in the issuer’s capitalization.

The issue turns on whether the anti-dilution adjustment applied to awards under equity plans is determined to be mandatory or permissive. If the adjustment is determined to be permissive, then the award is deemed to be modified upon adjustment under FAS 123R, resulting in a re-calculation of the fair value of the award and a possible increase in the compensation expense for the company.

Many plans are written flexibly, allowing compensation committees to determine whether the corporate event is one triggering an appropriate anti-dilution adjustment. Companies should review the terms of their equity compensation plans and arrangements and consult with their external auditors concerning this issue well in advance of any change in capitalization requiring an adjustment of awards under their equity plans.”

And here is the take from Cleary Gottlieb: “We understand that the Big Four accounting firms recently reached a consensus concerning the application of FAS 123R in circumstances in which employee stock options and other equity awards are revised to reflect changes in the capitalization of the employer. It appears that the precise wording of a stock plan’s “antidilution” provision (or the absence of an antidilution provision) can make a world of difference in the accounting charges that might need to be taken in connection with a stock split, stock dividend, recapitalization, spin-off or other equity restructuring.

In sum, if a plan contains no antidilution provision or the antidilution provision provides for discretion on the part of the employer to adjust equity awards in connection with a change in capitalization (e.g., “the Committee may adjust awards as it deems necessary or appropriate to prevent enlargement or dilution of rights”), then such adjustment will be deemed to be a modification of the award, resulting in an adverse accounting consequence: any incremental fair value of the award after its modification compared to the fair value of the award prior to modification will need to be recognized as compensation expense. If, however, there is an antidilution provision and it does not permit any such discretion, (e.g., “the Committee shall adjust awards as it deems necessary or appropriate to prevent enlargement or dilution of rights”), then such adjustment will not be deemed to be a modification and no compensation expense would need to be recognized.

For purposes of determining any incremental fair value, the award’s fair value immediately prior to the modification is determined assuming that the equity restructuring will occur and no antidilution adjustments will be made. The award’s fair value immediately after the modification is determined by taking into account the adjustments made. For example, assume that an employer decides to effect a 2-for-1 stock split at a time when its stock is worth $50 per share. The employer determines, pursuant to the exercise of its discretion and not pursuant to a contractual obligation, to adjust outstanding options equitably to reflect the split.

As a result of the adjustment, a stock option for 10 shares with a strike price of $15 becomes a stock option for 20 shares with a strike price of $7.50. Assume that the value of a share of stock immediately after the split is $25. Under FAS 123R, we understand that the option would have to be valued both immediately before and after the split, in each case using the $25 per share value of the stock after the split. Using assumptions for a hypothetical company, based on a black-scholes valuation model, the compensation that would be required to be recognized for such option would be on the order of magnitude of $1,000.

We urge you to review your stock incentive plan antidilution provisions, to consult with your auditors concerning the matters described above and to consider adding or amending plans to provide for automatic and non-discretionary adjustments to be made in connection with certain equity restructurings. However, you need to carefully consider the consequences of making such changes. First, such changes may not avoid an accounting charge if made in anticipation of a capital change or restructuring. Second, any such change would give participants legal rights that they did not previously have. Third, it is not clear what effect a revision of an antidilution provision would have on outstanding stock options or other equity awards for purposes of Section 409A or, for incentive stock options, Section 422 of the Internal Revenue Code.”

The NASPP has posted related memos in its “Stock Option Expense” Portal.

July 19, 2006

Expires Tomorrow: Early Bird Discount for Executive Compensation Disclosure Conference

Warning! Tomorrow is the last day for the Early Bird Discount for the important conference: “Implementing the SEC’s New Executive Compensation Disclosures: What You Need to Do Now!” Check out this detailed conference agenda to understand the types of challenges you should expect to face from the new rules.

The Early Bird expires tommorrow, July 20th – so take advantage of the huge savings while you can. For example, the Early Bird member rate for a single attendee is only $495, after July 20th – it goes up to $750 (which is still reasonable, but 50% more than the Early Bird rate).

Practical Guide to Tax Accounting Under FAS 123(R)

Tune in tomorrow for the NASPP webcast – “Practical Guide to Tax Accounting Under FAS 123(R).” Among other topics, this program will cover:

- How to account for excess tax deductions and shortfalls under FAS 123(R)
- Special procedures necessary to account for disqualifying dispositions of ISOs and ESPPs
- How to account for tax benefits (or lack thereof) of grants to overseas employees
- Administrative considerations, including practice pointers and internal controls for period-end reporting
- The FASB’s alternative approach for calculating your FAS 123(R) paid-in-capital starting balance

The Trending of Stock Option Grants

The Sunday NY Times included this article that confused me because it described a new academic study that indicates that stock option grants to executives continue to trend up – the study even claims that grants are now at the highest level since the end of the Internet boom in 2000. Since this is contrary to loads of anecdotal commentary I have heard about how option grants are down, I decided to poll some of the compensation consultants on the CompensationStandards.com Task Force. [By the way, the study is unpublished.]

The universal response was that the consultants were also confused by the article, as they noted that the surveys and studies they have seen (as well as their daily experience) show that option grants are down significantly and that restricted stock grants are up by roughly the same amount. They noted that long-term incentive (LTI) values overall have been fairly level – and that there has been a pronounced shift away from time-vested restricted stock to performance-vested restricted stock.

Many of the consultants expressed a view that a major problem with the study is that it focused on the number of shares awarded, not the value – and that it is unclear how anyone could conclude options are expanding if they only looked at the number of shares. For example, if a company splits its stock and grants twice as many shares to provide the same value, the Professor would have concluded the company doubled the amount of an executive’s awards.

Here are some more specific thoughts from the Task Force:

Jim Reda of James Reda & Associates says: “This is definitely flawed data. He is using number of shares. Most companies award to value. If stock price goes up, number of shares go down. Moreover, a lot of companies are phasing in LTI strategy. You will not see effect until 2006. The study looked at 2005 data. In fact, most companies’ fiscal year did not begin until 1/1/06. The strategy was to award stock options, vest them immediately or front load to avoid future expense.

Our experience shows a dramatic drop in LTI value from 2002 to 2005, depending on the industry. Some industries experinced 50% drop in LTI multiple and others 30% drop. Combined with stock price increases, this can translate into substantial drop in shares of stock options. But, as stated, companies were taking advantage of last days of expense free option awards.”

Robbi Fox of Hewitt states: “I obviously would have to look at his study in more depth, but I believe his conclusions are flawed. I don’t know how he calculates “value” – that may not be done correctly. One can’t really look at the number of options granted to determine change in stock option granting practices because if the stock price is declining you would expect a company to issue more options in order to have the same economic value. We know for a fact there has been a large shift of option value to full value shares as well such as restricted stock and performance shares. Also, just looking at SEC filings is misleading because most of the takeaway has been at the lower levels. Lastly, many companies are moving to a portfolio approach so options still make up some piece of the long-term pie so prevalence of companies granting options should not change much.”

And Myrna Hellerman of Sibson Consulting notes: “My clients have been trying to wean themselves from purely stock option grants but have encountered some obstacles including: (a) plan documents that allow for only stock options or they are bumping up against available quota of full-value shares and they don’t want to go back for more authorization because they fear they might not meet ISS tests, and/or (b) a culture within the company (especially those in the growth mode) that options are the way to go. Companies seem very cognoscente of the expense associated with option grants and are concerned that they are not getting sufficient “value” for that expense.(especially true in companies whose stock has high volatility thus causing a high Black-Scholes value for FAS 123R purposes).

Another consideration about what’s happening with stock option grants is that while the size may be the same (or bigger) we’re also seeing more conditions attached to the grant [e.g. premium pricing, more rigorous vesting (performance vesting rather than time, vesting over a longer period of time -for instance 0% first two years 20% next two years, 60% last year), holding requirements, etc.].

Admittedly not all grants are done as thoughtfully as suggested above, but I have found that at least with the Compensation Committees I serve, there has been an increased focused on the ‘what, why, how, how much, how often’ of equity grants.”

July 18, 2006

Survey Results on Free Writing Prospectuses

Below are the results of our Quick Survey on free writing prospectuses:

1. Since ’33 Act reform became effective, the most pieces included in a “disclosure package” in a deal that I have worked on has been:

- 1 piece – 4.6%
- 2 pieces – 22.7%
- 3 pieces – 27.3%
- 4 pieces – 40.9%
- 5-6 pieces – 4.6%
- 7 pieces or more – 0.0%

2. Since ’33 Act reform became effective, the average number of pieces included in the “disclosure packages” in deals that I have worked on has been:

- 1 piece – 13.4%
- 2 pieces – 45.5%
- 3 pieces – 36.6%
- 4 pieces – 4.6%
- 5 pieces or more – 0.0%

On the question of which free writing prospectuses is the most interesting, we had a clear-cut winner with 75% of the vote: Chipotle’s IPO road show with all those catchy songs!

New Survey on Executive Sessions

Now it’s time to participate in our new Quick Survey, this one is an Executive Session Survey. Please answer four quick questions on the frequency of board’s executive sessions; frequency of audit committee executive sessions; who’s in the room during an audit committee executive session, and who meets with the audit committee in executive session.

Japan’s Proposed Corporate Governance Reform

Recently, Japan’s regulator – the Financial Services Agency – has proposed steps that would improve the infrastructure involving their capital markets and likely make them more competitive. This has included steps to strengthen the quality of their audits, as described in this WSJ article and this Financial Times article.

In these significant FSA proposals, Japan proposes to enhance protection for investors through such steps as:

- Broading the definitions of investment schemes including financial instruments

- Enhancing disclosures through quarterly reporting, reporting on internal controls by management and auditors, and reviewing regulations on tender offers

- Increasing penalties against market fraud

- Providing for self regulatory structures