New Rule Borrows Some Key Features from SEC Rule

Written By Stephen P. Sibold, Q.C.

On March 29, 2007, the Canadian Securities Administrators (CSA) published for comment its proposed new executive compensation form and related amendments to National Instrument 51-102 - Continuous Disclosure Obligations (NI 51-102). The proposed executive compensation form is intended to replace the current Statement of Executive Compensation (Form 51-102F6). If the amendments to NI 51-102 are implemented in their proposed form, any venture issuer that does not send a management information circular to its security holders will, nonetheless, be required to file a completed Form 51-102F6 with securities regulatory authorities.

CSA anticipates that the new executive compensation disclosure rules will be in effect at the end of 2007 and issuers will be required to comply with the new form for financial years ending on or after December 31, 2007. New disclosure requirements will likely apply prospectively. Thus, an issuer with a December 31, 2007, year-end would make its 2007 disclosure on the new basis, but would not be required to restate information that was reported under the old Form 51-102F6.

In light of the time taken by CSA to consider the new SEC executive compensation disclosure rule and CSA's expressed desire to have this new form in effect by the end of 2007, it is unlikely that CSA will make substantive changes to the draft form in response to comments. Accordingly, issuers should become familiar with the proposed new form and begin assessing its impact on their current executive compensation disclosure.

Major Changes From the Current Requirements

While adopting a number of key features of the new SEC rule, CSA has done so in a less prescriptive manner than the SEC and has also attempted to be responsive to the differences between the Canadian and U.S. capital markets. The result is a modified SEC executive compensation disclosure rule. The following is a brief summary of the most significant proposed changes to the current form.

New Summary Compensation Table

The current table is to be modified in six ways:

1. Total Compensation to be Disclosed. For the first time, the summary compensation table will include a column showing the total compensation provided to each named executive officer (NEO).
2. Bonus vs. Incentive Plans. The new definition of “incentive plan” includes any plan that is intended to serve as an incentive for performance over a specified period. Unlike the current form which distinguishes between bonus and long-term compensation based on the time period to which a given award relates, it will no longer matter whether an award is tied to a specific year or a longer period. Consequently, a plan that includes specific performance objectives, whether for a short or long period, will not be considered a bonus. Payments that are purely discretionary will be reflected in the bonus column. Thus, some payments that issuers would previously have included in the bonus column may now fit in the “non-equity incentive plan” column or in the columns for stock or option awards.
3. Plan-based Awards. Three new columns are to be added to the table dealing with stock awards, option awards and non-equity incentive plan compensation. Under these columns, issuers will be required to disclose the dollar value of each award recognized for financial statement reporting purposes (for stock and option awards) or on the date earned (for non-equity incentive plan awards), rather than the number of securities granted as is currently required.
4. Change in Pension Value. Under this new column, issuers will be required to disclose the increase in the actual present value of the NEO's accumulated benefit under all defined benefit and actuarial plans (including supplemental plans).
5. Perquisites. Although CSA does not propose to change the existing test for perquisite disclosure ($50,000 and 10% of the total annual salary and bonus of the NEO for the financial year), more perquisites could be caught because fewer items may now be included in the bonus column (due to the new definition of “incentive plan” discussed above).
   In considering whether an item is a perquisite, CSA is proposing a “two step” test similar to the SEC's approach. If an item is not integrally and directly related to job performance and provides no personal benefit to an NEO, it is not considered a perquisite. Perquisites are to be recorded at their aggregate incremental cost to the issuer.
6. Grants of Equity Awards. Immediately following the summary compensation table, issuers will be required to disclose the value of all stock and options awarded to an NEO during the preceding fiscal year. This value will be the dollar value of each award on the date of grant, as determined in accordance with section 3870 of the CICA Handbook.

Compensation Discussion and Analysis

Modeled after the SEC's new requirements, the proposed Compensation Discussion and Analysis (CD&A) will explain the rationale for specific compensation programs for NEOs. Issuers must discuss six key principles:

1. objectives of the compensation program;
2. what the program is designed to reward;
3. each element of compensation;
4. why the issuer chooses to pay each element;
5. how the issuer determines the amount and formula for each element; and
6. how each element and related decisions fit into the issuer's overall compensation objectives.

Non-venture issuers will continue to be required to include a performance graph that illustrates cumulative total shareholder return over the last five most recently completed fiscal years compared to the cumulative return of at least one broad equity market index. However, non-venture issuers must now explain how the trend shown by their performance graph compares to the trend in the issuer's compensation to executives over the same period.

Issuers will also be required to: (i) disclose specific quantitative and qualitative performance-related factors for NEOs, unless disclosure of targets would result in competitive harm to the issuer; and (ii) practices related to granting options (including whether executives are involved in determining who is awarded options).

Equity-based Awards

The CSA proposal contains two new tables disclosing information about equity and non-equity awards. One table will require information on outstanding options (number, exercise prices and expiry dates), the value of unexercised in-the-money options and outstanding stock awards (market value of non-vested shares or other rights at financial year-end). The other table will show the amounts realized by an NEO during the year from exercising option awards and from the vesting of stock and similar awards. Although CSA has opted for less detail in these two tables than the SEC, issuers will be encouraged to use the narrative discussion that follows the two tables to disclose any material terms of all awards, both equity and non-equity.

Retirement Plan Benefits

A new table will require disclosure of details of all defined benefit retirement plans, including the present value of the accumulated benefit. In addition, issuers must explain, in narrative form, the material terms of any deferred compensation or defined contribution plan relating to each NEO.

Termination and Change of Control Benefits

Another new requirement is detailed disclosure of estimated annual payments and benefits that NEOs would receive under various termination scenarios.

Director Compensation

A new table will require disclosure of director compensation in a manner similar to the summary compensation table for executives.

Management Information Circular

As is currently the case, executive compensation disclosure will remain in the issuer's management information circular. Unlike the SEC, CSA is not requiring certification of any part of the executive compensation disclosure on the basis that the CD&A is a report of the board of directors or compensation committee of the board, rather than of the CEO or CFO.

Treatment of Venture Issuers

Other than the performance graph requirement (from which they are exempt), venture issuers will be subject to the same form disclosure requirements as non-venture issuers.

Venture issuers that do not send a management information circular to securityholders will be required to file a completed Form 51-102F6 within 140 days of the issuer's financial year-end. In a related amendment, CSA proposes to amend MI 52-110 – Audit Committees and NI 58-101 – Disclosure of Corporate Governance Practices to reflect the proposed change to the definition of venture issuer (i) to remove all debt-only issuers from the definition and (ii) to include issuers whose securities are listed on the Alternative Investment Market of the London Stock Exchange (AIM) and the PLUS markets (formerly known as OFEX) operated by PLUS Markets Group plc.