November 2, 2011

Today: “The Say-on-Pay Workshop: 8th Annual Executive Compensation Conference”

Today is the “The Say-on-Pay Workshop: 8th Annual Executive Compensation Conference”; yesterday was the “6th Annual Proxy Disclosure Conference” and the video archive of that Conference is posted. Note you can still register to watch online by using your credit card and getting an ID/pw kicked out automatically to you without having to interface with our staff. Both Conferences are paired together; two Conferences for the price of one.

How to Attend by Video Webcast: If you are registered to attend online, just go to the home page of or to watch it live or by archive (note that it will take about a day to post the video archives after it’s shown live). A prominent link called “Enter the Conference Here” on the home pages of those sites will take you directly to today’s Conference (and on the top of that Conference page, you will select a link matching the video player on your computer: Windows Media or Adobe Flash Player).

Remember to use the ID and password that you received for the Conferences (which may not be your normal ID/password for or If you are experiencing technical problems, follow these webcast troubleshooting tips. Here is today’s Conference Agenda; times are Pacific.

How to Earn CLE Online: Please read these FAQs about Earning CLE carefully to see if that is possible for you to earn CLE for watching online – and if so, how to accomplish that. Remember you will first need to input your bar number(s) and that you will need to click on the periodic “prompts” all throughout each Conference to earn credit. Both Conferences will be available for CLE credit in all states except for a few – but hours for each state vary; see the CLE list for each Conference in the FAQs.

IPOs for Private Equity Firms

In this podcast, Ken Favaro of Booz & Co. provides some insight into why a private equity firm would go public, including:

– Why have private equity firms gone public?
– Why have private equity firms diversified into new asset classes?
– What is the outlook for their core business?

Corp Fin Comments on Regulation G

In the “ Blog,” Anne Cotter of Leonard, Street and Deinard provides this recent analysis of Reg G comments from Corp Fin:

Prior to Sarbanes-Oxley, it was fashionable for public companies to issue press releases with “pro-forma earnings,” which generally excluded certain GAAP charges from the income calculation. To some, this measure was known as EBBS, or “Earnings Before Bad Stuff.” As a response, Sarbanes-Oxley required, and the SEC issued, Regulation G. Regulation G addresses “non-GAAP financial measures” and requires the most directly comparable GAAP measure be presented and a reconciliation of the most comparable GAAP and non-GAAP measures.

We reviewed some recent SEC comment letters on Regulation G. For the most part, the comments were not surprising on a technical level. One interesting point we noted is that the SEC, when conducting periodic reviews of issuers, is not shy about reviewing Form 8-Ks, including earnings announcements, and commenting on Regulation G deficiencies.

Some of the general categories of comments we noted were:

– The non-GAAP operating statement conveys undue prominence.
– All non-GAAP financial information (including forward looking information) was not reconciled to GAAP.
– Requests to present non-GAAP financial information consistent with Securities Act filings, with an explanation of why the information is useful.
– Where multiple non-GAAP financial measures are reported, a comment to reconcile each non-GAAP measure to the most directly comparable GAAP measure.
– A comment to present more information as to why certain matters are not representative of future performance and are non-recurring in nature.

We also noted several comments on issuers’ Schedule 14D-9s, which an issuer files in response to a third party tender offer. Those comments uniformly addressed projections which were presented on a non-GAAP basis (usually EBITDA) and required reconciliation to GAAP.

– Broc Romanek