On March 12, 2010, the Division of Corporation Finance issued additional Regulation S-K Compliance and Disclosure Interpretations (CDIs) relating to disclosure of bonuses when an executive declines to accept the bonus, and the scope of the new compensation consultant disclosure requirement.
Declining a Nonequity Incentive Award: Under CDI 119.25, the Division stated that if a company grants an award for services performed in the prior year, the grant of the award should be included in the Grants of Plan-Based Awards Table, even if the executive declines the award. Further, the earnings pursuant to the award, even though declined, should be included in total compensation for purposes of determining if the executive is a named executive officer and reported in the Summary Compensation Table. The company should disclose the executive’s decision not to accept payment of the award by adding an additional column to the Summary Compensation Table reporting the amount of nonequity incentive plan compensation declined, or by providing footnote disclosure to the Summary Compensation Table. The company should also consider discussing in the CD&A the effect, if any, of the executive’s decision on how the company structures and implements compensation to reflect performance.
Declining a Discretionary Bonus: Under CDI 119.26, the Division stated that if an executive declines a discretionary bonus before it is granted, disclosure of the bonus is not required in the Summary Compensation Table.
Scope of Additional Services: Under CDI 133.12, the Division clarified that under Item 407(e)(3)(iii)(A)-(B) there is no limitation on the types of services that are included in “additional services.” Under this item, compensation consultant fees must be disclosed if the consultant provides advice on compensation and also provides “additional services” exceeding $120,000. The Division stated that if the consultant also sells products to the company, then the revenues generated from such sales should be included as additional services.