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Executive Compensation: Are You In Compliance?
It's no secret that for sometime now the Securities and Exchange Commission (SEC), institutional investors and shareholder services, have all been dissatisfied with the opaqueness of required executive compensation disclosure in Proxy Statements under Item 402 of Regulation S-K. In fact, the SEC may soon consider revising the executive compensation disclosure rules, at least with respect to certain types of compensation disclosure that are viewed by critics of current disclosure compliance as particularly lacking in transparency and detail.
It's also no surprise that Congress enacted Section 409A of the Internal Revenue Code to address the long-standing frustration of the Internal Revenue Service's (IRS) efforts to i) contain the proliferation of deferred compensation; ii) regulate how compensation may and may not be deferred; and iii) dictate what was “good” deferred compensation and what was, in the view of the IRS, a “bad” deferral or, put more technically, received, either constructively, under the so-called “economic benefit” doctrine or pursuant to some other theory of “receipt” or “benefit.” “The IRS also weighed in recently with Notice 2005-1, providing some limited guidance to taxpayers.
Given these developments and the likelihood of further SEC and IRS action, what does the in-house lawyer need to be doing today to be prepared for the upcoming Proxy Statement season and to ensure that his client's deferred compensation plans and agreements are in compliance with (or exempt, ie, grandfathered, from) IRC '409A?
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