On January 11, 2013, the U.S. Securities and Exchange Commission (the “SEC”) approved new listing standards submitted by the New York Stock Exchange (“NYSE”) and the NASDAQ Stock Market (“NASDAQ”) concerning the independence of compensation committee members and the engagement and independence of compensation advisers. The new listing standards were required by the Dodd-Frank Act and the SEC rules adopted under the Dodd-Frank Act on June 20, 2012 (the “SEC Rules”).
As approved, the new listing standards of the NYSE (the “NYSE Rules”) and NASDAQ (the “NASDAQ Rules”) are nearly identical to the new listing standards initially proposed by the NYSE and NASDAQ on September 25, 2012.
The NYSE Rules will be effective on July 1, 2013, although companies are not required to comply with the NYSE Rules concerning the independence of compensation committee members until the earlier of (i) the first annual meeting held after January 15, 2014 or (ii) October 31, 2014.
The NASDAQ Rules also will be effective on July 1, 2013, although companies are not required to comply with the NASDAQ Rules concerning the independence of compensation committee members, and the requirement that companies have a formal compensation committee and written compensation committee charter, until the earlier of (i) the first annual meeting held after January 15, 2014 or (ii) October 31, 2014. In connection with these changes, NASDAQ-listed companies are required to certify to NASDAQ, no later than 30 days after the final applicable implementation deadline, that they have complied with the new compensation committee composition and charter requirements.
Compensation Committee Independence
Both the NYSE Rules and the NASDAQ Rules require listed companies to specifically consider additional information when making independence determinations for compensation committee members. In addition, the NASDAQ Rules impose a new objective independence requirement that must be met by compensation committee members.
The NYSE Rules do not make any changes in the objective independence requirements for compensation committee members, but they do specifically require the board of directors to consider certain information when making independence determinations for compensation committee members. The NYSE Rules require boards of directors, when making these determinations, to consider all factors specifically relevant to determining whether a director has a relationship to the listed company that is material to that director’s ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited to:
With respect to a director’s affiliation with the listed company, the NYSE clearly stated that it believed share ownership served to align directors’ interests with those of unaffiliated shareholders and would not adversely affect a director’s ability to be independent from management as a compensation committee member. Additionally, the commentary to the NYSE Rules indicates that the board should consider whether an affiliate relationship places a compensation committee member under the direct or indirect control of the listed company or its senior management, or creates a direct relationship between the director and members of senior management, in each case of a nature that would impair his or her ability to make independent judgments about the listed company’s executive compensation. As a result, it is clear that having a director who was also a large shareholder or was affiliated with a large shareholder serve as a compensation committee member would not be viewed as inappropriate by the NYSE.
Because the NYSE Rules do not include any new objective independence standards, companies will not necessarily be required to make changes to their compensation committee composition. However, because of the requirement to consider information that may not have been specifically considered in the past, some companies may need to include additional disclosure in their proxy statements to address Item 407(a)(3) of Regulation S-K, which requires companies to describe, by specific category or type, transactions, relationships or arrangements not otherwise disclosed that were considered by the board of directors in making its independence determination.
The NYSE Rules also provide listed companies with an opportunity to cure noncompliance with the compensation committee independence requirement in certain circumstances. If a compensation committee member ceases to be independent for reasons outside the member’s reasonable control, that person, with notice by the company to the NYSE, may remain a compensation committee member until the earlier of the next annual shareholders’ meeting or one year from the occurrence of the event that caused the member to be no longer independent, provided that a majority of the members of the compensation committee continue to be independent.
The NASDAQ Rules make two principal changes to the existing listing standards relating to the independence of compensation committee members.
First, the NASDAQ Rules prohibit compensation committee members from accepting, directly or indirectly, any consulting, advisory or other compensatory fee from the company or any subsidiary, subject to limited exceptions for director and committee member fees and fixed compensation under a retirement plan (including deferred compensation) for prior service with the company (provided that such compensation is not contingent on continued service).
This prohibition is identical to current prohibitions relating to compensatory fees for audit committee members and, accordingly, there is no “look back” period for the prohibition on receiving compensatory fees. As a result, compensatory fees received by a director prior to the time the director starts serving as a member of the compensation committee would not disqualify that director from serving as a member of the compensation committee.
Although the NASDAQ Rules do not specifically define what constitutes “indirect” acceptance of a compensatory fee, we expect NASDAQ to interpret this phrase in the same manner as it does for audit committee members, which includes acceptance of such a fee by a spouse, a minor child or stepchild or a child or stepchild sharing a home with the member or by an entity in which such member is a partner, member, an officer such as a managing director occupying a comparable position or executive officer, or occupies a similar position (except limited partners, non-managing members and those occupying similar positions who, in each case, have no active role in providing services to the entity) and which provides accounting, consulting, legal, investment banking or financial advisory services to the listed company or any subsidiary of the listed company.
Second, in addition to the prohibition on receiving compensatory fees, the NASDAQ Rules also require the board of a listed company to consider whether the director is affiliated with the listed company, a subsidiary of the listed company, or an affiliate of a subsidiary, to determine whether any affiliation would impair the director’s judgment as a member of the compensation committee. In the commentary to the NASDAQ Rules, NASDAQ noted that “it may be appropriate for certain affiliates, such as representatives of significant stockholders, to serve on compensation committees since their interests are likely aligned with those of other stockholders in seeking an appropriate executive compensation program.” In other words, a director who is a large shareholder or is affiliated with a large shareholder should not be automatically precluded from serving on the compensation committee solely as a result of that affiliation.
The NASDAQ Rules also provide an opportunity to cure noncompliance with the compensation committee composition requirements in certain circumstances. If a listed company fails to comply with the compensation committee composition requirements due to one vacancy, or one compensation committee member ceases to be independent due to circumstances beyond the member’s reasonable control, the listed company will have until the earlier of the next annual shareholders’ meeting or one year from the occurrence of the event to regain compliance, provided that if the annual shareholders’ meeting occurs no later than 180 days following the event that resulted in the failure, the listed company will have 180 days from the date of the event to regain compliance. A listed company relying on this cure period is required to provide notice to NASDAQ immediately upon learning of the noncompliance. This cure period is the same as the cure period provided by current NASDAQ listing standards with respect to the majority independent board requirement.
The NASDAQ Rules also continue to allow a listed company to have a non-independent director serve on the compensation committee under exceptional and limited circumstances.
Compensation Adviser Engagement and Independence
NYSE Rules and NASDAQ Rules
With respect to the retention of compensation consultants, legal counsel or other advisers (“compensation advisers”) by a compensation committee and the requirement that the compensation committee consider specific independence factors prior to selecting a compensation adviser, both the NYSE Rules and the NASDAQ Rules generally mirror the corresponding requirements of the SEC Rules in mandating the following:
In addition, both the NYSE Rules and the NASDAQ Rules require companies’ compensation committee charters to include these specific rights and responsibilities. Although NASDAQ-listed companies have until the earlier of (i) the first annual meeting held after January 15, 2014 or (ii) October 31, 2014 to put in place a written compensation committee charter, the compensation committee is required to have the specific rights and responsibilities described above by July 1, 2013. Whether those rights and responsibilities are granted through the charter or a board resolution or other action is left to the company’s discretion, per the NASDAQ Rules.
There are several important practical considerations for listed companies to be aware of in considering the impact of these new listing standards:
NASDAQ Compensation Committee and Compensation Committee Charter Requirements
The NASDAQ Rules made two changes to NASDAQ’s existing listing standards that are not specifically related to items that were required to be addressed by the SEC Rules. The NASDAQ Rules require most domestic listed companies to have a formal compensation committee consisting of at least two independent directors and to have, and at least annually review and reassess the adequacy of, a written compensation committee charter that complies with the requirements of the NASDAQ Rules. Current NASDAQ listing standards require independent director oversight of executive officer compensation, but do not require listed companies to establish a formal compensation committee or to have a written compensation committee charter.
Both the NYSE Rules and the NASDAQ Rules exempt (i) controlled companies, (ii) foreign private issuers (subject, in the case of the NYSE Rules, to certain additional disclosure requirements) and (iii) certain other listed companies from the new listing standards.
The NYSE Rules generally exempt smaller reporting companies from the new compensation committee independence requirements and the requirement for compensation committees to consider independence factors in connection with the selection of compensation advisers.
The NASDAQ Rules generally exempt smaller reporting companies from the new compensation committee independence requirements, the requirements relating to the retention of compensation advisers by the compensation committee, the requirement for compensation committees to consider independence factors in connection with the selection of compensation advisers and the requirement to have a written charter. The NASDAQ Rules do require that smaller reporting companies have a formal compensation committee of at least two members who satisfy current NASDAQ director independence requirements.
Summary of Actions to Take
Listed companies should prepare for the effectiveness of the NYSE Rules and the NASDAQ Rules by taking the following actions:
For more information about the contents of this alert, please contact:
© 2015 Goodwin Procter LLP. All rights reserved. This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP, Goodwin Procter (UK) LLP or their attorneys. Prior results do not guarantee similar outcome.
Goodwin Procter LLP is a limited liability partnership which operates in the United States and has a principal law office located at 53 State Street, Boston, MA 02109. Goodwin Procter (UK) LLP is a separate limited liability partnership registered in England and Wales with registered number OC362294. Its registered office is at Tower 42, 25 Old Broad Street, London EC2N 1HQ. A list of the names of the members of Goodwin Procter (UK) LLP is available for inspection at the registered office. Goodwin Procter (UK) LLP is authorized and regulated by the Solicitors Regulation Authority.