SEC Updates Regulation S-K C&DIs on 10/26/09

SEC Updates Regulation S-K C&DIs on 10/26/09

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The SEC has updated the Compliance & Disclosure Interpretations (C&DIs) for Regulation S-K as of October 26, 2009.  However, the date of the new/revised entries is August 14, 2009. Here’s the link to the C&DIs:

http://www.sec.gov/divisions/corpfin/guidance/regs-kinterp.htm

There is one that will have implications for equity award disclosures, Question 125.05. The question asks what happens when an equity awards vests and the plan from which it was granted provides for deferral of receipt of the stock. The proxy disclosure rules call for the Nonqualified Deferred Compensation Plan Table to provide the specified information “with respect to each defined contribution or other plan that provides for the deferral of compensation on a basis that is not tax-qualified.” So, would this require the deferred receipt of the vested equity award to be included in the Nonqualified Deferred Compensation Plan Table?

The answer: Yes. The SEC indicates that this would be the case regardless of whether the deferral is at the election of the named executive officer or pursuant to the terms of the equity award or plan.

Implications: If any of your equity awards have payouts deferred, you need to review this Q&A and the cited provision of the proxy rules to determine if you must include such awards in the Nonqualified Deferred Compensation Table.  A typical award that this could easily be required for is a restricted stock unit or a deferred stock unit.

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