[Federal Register Volume 75, Number 208 (Thursday, October 28, 2010)]
[Proposed Rules]
[Pages 66590-66619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26535]



[[Page 66589]]

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Part V





Securities and Exchange Commission





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17 CFR Parts 229, 240, and 249



Shareholder Approval of Executive Compensation and Golden Parachute 
Compensation; Proposed Rule

  Federal Register / Vol. 75 , No. 208 / Thursday, October 28, 2010 / 
Proposed Rules  

[[Page 66590]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229, 240, and 249

[Release Nos. 33-9153; 34-63124; File No. S7-31-10]
RIN 3235-AK68


Shareholder Approval of Executive Compensation and Golden 
Parachute Compensation

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: We are proposing amendments to our rules to implement the 
provisions of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act relating to shareholder approval of executive compensation and 
``golden parachute'' compensation arrangements. Section 951 of the 
Dodd-Frank Act amends the Securities Exchange Act of 1934 by adding 
Section 14A, which requires companies to conduct a separate shareholder 
advisory vote to approve the compensation of executives, as disclosed 
pursuant to Item 402 of Regulation S-K or any successor to Item 402. 
Section 14A also requires companies to conduct a separate shareholder 
advisory vote to determine how often an issuer will conduct a 
shareholder advisory vote on executive compensation. In addition, 
Section 14A requires companies soliciting votes to approve merger or 
acquisition transactions to provide disclosure of certain ``golden 
parachute'' compensation arrangements and, in certain circumstances, to 
conduct a separate shareholder advisory vote to approve the golden 
parachute compensation arrangements.

DATES: Comments should be received on or before November 18, 2010.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml);
     Send an e-mail to [email protected]. Please include 
File Number S7-31-10 on the subject line; or
     Use the Federal Rulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number S7-31-10. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments 
are also available for Web site viewing and printing in the 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549, on official business days between the hours of 10 a.m. and 3 
p.m. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: Scott Hodgdon, Attorney-Adviser, at 
(202) 551-3430, Anne Krauskopf, Senior Special Counsel, at (202) 551-
3500, or Perry Hindin, Special Counsel, at (202) 551-3440, Division of 
Corporation Finance, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-3628.

SUPPLEMENTARY INFORMATION: We are proposing new Rule 14a-21 and 
amendments to Rules 14a-4,\1\ 14a-6,\2\ 14a-8 \3\ and a new Item 24 and 
amendments to Item 5 to Schedule 14A \4\ and amendments to Item 3 to 
Schedule 14C \5\ under the Securities Exchange Act of 1934 (``Exchange 
Act'').\6\ We are also proposing amendments to Item 402 \7\ of 
Regulation S-K,\8\ Item 1011 \9\ of Regulation M-A,\10\ Item 15 of 
Schedule 13E-3,\11\ Item 8 of Schedule 14D-9,\12\ Item 9B in Part II of 
Form 10-K,\13\ and Item 5(c) in Part II of Form 10-Q.\14\
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    \1\ 17 CFR 240.14a-4.
    \2\ 17 CFR 240.14a-6.
    \3\ 17 CFR 240.14a-8.
    \4\ 17 CFR 240.14a-101.
    \5\ 17 CFR 240.14c-101.
    \6\ 15 U.S.C. 78a et seq.
    \7\ 17 CFR 229.402.
    \8\ 17 CFR 229.10 et seq.
    \9\ 17 CFR 229.1011.
    \10\ 17 CFR 229.1000 et seq.
    \11\ 17 CFR 240.13e-100.
    \12\ 17 CFR 240.14d-101.
    \13\ 17 CFR 249.310.
    \14\ 17 CFR 249.308a.
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Table of Contents

I. Background and Summary
II. Discussion of the Proposed Amendments
    A. Shareholder Approval of Executive Compensation
    1. Proposed Rule 14a-21(a)
    2. Proposed Item 24 to Schedule 14A
    3. Proposed Amendments to Item 402(b) of Regulation S-K
    B. Shareholder Approval of the Frequency of Shareholder Votes on 
Executive Compensation
    1. Proposed Rule 14a-21(b)
    2. Proposed Item 24 of Schedule 14A
    3. Proposed Amendment to Rule 14a-4
    4. Proposed Amendment to Rule 14a-8
    5. Proposed Amendments to Form 10-K and Form 10-Q
    6. Effect of Shareholder Vote
    C. Issues Relating to Both Shareholder Votes Required by Section 
14A(a)
    1. Proposed Amendments to Rule 14a-6
    2. Broker Discretionary Voting
    3. Relationship to Shareholder Votes on Executive Compensation 
for TARP Companies
    D. Disclosure of Golden Parachute Arrangements and Shareholder 
Approval of Golden Parachute Arrangements
    1. General
    2. Proposed Item 402(t) of Regulation S-K
    3. Amendments to Schedule 14A, Schedule 14C, Schedule 14D-9, 
Schedule 13E-3, and Item 1011 of Regulation M-A
    4. Proposed Rule 14a-21(c)
    E. Treatment of Smaller Companies
    F. Transition Matters
    G. General Request for Comment
III. Paperwork Reduction Act
    A. Background
    B. Burden and Cost Estimates Related to the Proposed Amendments
    C. Request for Comment
IV. Cost-Benefit Analysis
    A. Introduction
    B. Benefits
    C. Costs
    D. Request for Comment
V. Small Business Regulatory Enforcement Fairness Act
VI. Consideration of Impact on the Economy, Burden on Competition, 
and Promotion of Efficiency, Competition, and Capital Formation
VII. Initial Regulatory Flexibility Act Analysis
    A. Reasons for, and Objectives of, the Proposed Action
    B. Legal Basis
    C. Small Entities Subject to the Proposed Action
    D. Reporting, Recordkeeping, and Other Compliance Requirements
    E. Duplicative, Overlapping, or Conflicting Federal Rules
    F. Significant Alternatives
    G. Solicitation of Comments
VIII. Statutory Authority and Text of the Proposed Amendments

I. Background and Summary

    Section 951 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (the ``Act'') \15\ amends the Exchange Act by adding new 
Section 14A. New Section 14A(a)(1) requires that ``[n]ot less 
frequently than once every 3 years, a proxy or consent or authorization 
for an annual or other meeting of the shareholders for which the proxy

[[Page 66591]]

solicitation rules of the Commission require compensation disclosure'' 
\16\ must also ``include a separate resolution subject to shareholder 
vote to approve the compensation of executives,'' \17\ as disclosed 
pursuant to Item 402 of Regulation S-K, or any successor to Item 402 (a 
``say-on-pay'' vote). The shareholder vote to approve executive 
compensation required by Section 14A(a)(1) ``shall not be binding on 
the issuer or the board of directors of an issuer.'' \18\
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    \15\ Public Law 111-203 (July 21, 2010).
    \16\ Exchange Act Section 14A(a)(1). Section 951 of the Act 
includes the language ``or other meeting of the shareholders,'' 
which is similar to corresponding language in Section 111(e)(1) of 
the Emergency Economic Stabilization Act of 2008, or EESA, 12 U.S.C. 
5221. We have previously considered this language in connection with 
companies required to provide a separate shareholder vote on 
executive compensation so long as the company has outstanding 
obligations under the Troubled Asset Relief Program, or TARP. See 
Shareholder Approval of Executive Compensation of TARP Recipients, 
Release No. 34-61335 (Jan. 12, 2010) [75 FR 2789] (hereinafter, the 
``TARP Adopting Release''). We continue to view this provision to 
require a separate shareholder vote on executive compensation only 
with respect to an annual meeting of shareholders for which proxies 
will be solicited for the election of directors, or a special 
meeting in lieu of such annual meeting. Similarly, proposed Rules 
14a-21(a) and (b) are intended to result in issuers conducting the 
required advisory votes in connection with the election of 
directors, the proxy materials for which are required to include 
disclosure of executive compensation.
    \17\ Exchange Act Section 14A(a)(1).
    \18\ Exchange Act Section 14A(c).
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    Section 951 of the Act also adds new Section 14A(a)(2) to the 
Exchange Act, requiring that, ``[n]ot less frequently than once every 6 
years, a proxy or consent or authorization for an annual or other 
meeting of the shareholders for which the proxy solicitation rules of 
the Commission require compensation disclosure shall include a separate 
resolution subject to shareholder vote to determine'' \19\ whether the 
shareholder vote to approve the compensation of executives ``will occur 
every 1, 2, or 3 years.'' \20\ As discussed below, this shareholder 
vote ``shall not be binding on the issuer or the board of directors of 
an issuer.'' \21\
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    \19\ Exchange Act Section 14A(a)(2).
    \20\ Exchange Act Section 14A(a)(2).
    \21\ Exchange Act Section 14A(c).
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    In addition, Section 951 of the Act amends the Exchange Act by 
adding new Section 14A(b)(1), which requires that, in any proxy or 
consent solicitation material for a meeting of shareholders ``at which 
shareholders are asked to approve an acquisition, merger, 
consolidation, or proposed sale or other disposition of all or 
substantially all the assets of an issuer, the person making such 
solicitation shall disclose in the proxy or consent solicitation 
material, in a clear and simple form in accordance with regulations to 
be promulgated by the Commission, any agreements or understandings that 
such person has with any named executive officers of such issuer (or of 
the acquiring issuer, if such issuer is not the acquiring issuer) 
concerning any type of compensation (whether present, deferred, or 
contingent) that is based on or otherwise relates to the acquisition, 
merger, consolidation, sale or other disposition of all or 
substantially all of the assets of the issuer.'' \22\ These 
compensation arrangements are often referred to as ``golden parachute'' 
compensation. Such disclosure must include the aggregate total of all 
such compensation that may be paid or become payable to or on behalf of 
such named executive officer, and the conditions upon which it may be 
paid or become payable.\23\ Under Section 14A(b)(2), ``unless such 
agreements or understandings have been subject to [the periodic vote 
described in Section 14A(a)(1)],'' \24\ a separate shareholder vote to 
approve such agreements or understandings and compensation as disclosed 
is also required.\25\ As with the annual shareholder vote to approve 
the compensation of executives and the shareholder vote on the 
frequency of such votes, this shareholder vote ``shall not be binding 
on the issuer or the board of directors of an issuer.'' \26\
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    \22\ Exchange Act Section 14A(b)(1).
    \23\ Exchange Act Section 14A(b)(1).
    \24\ Exchange Act Section 14A(b)(2).
    \25\ Exchange Act Section 14A(b)(2).
    \26\ Exchange Act Section 14A(c). For a more detailed discussion 
of the advisory nature of the shareholder votes required by Section 
951 of the Act, see Section II.B.6 below.
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    None of the shareholder votes required pursuant to Section 14A 
(including the shareholder vote to approve executive compensation, the 
shareholder vote on the frequency of such votes, and the shareholder 
vote to approve golden parachute compensation) is binding on an issuer 
or its board of directors or is to be construed ``as overruling a 
decision by such issuer or board of directors.'' \27\ These shareholder 
votes also do not ``create or imply any change to the fiduciary duties 
of such issuer or board of directors'' \28\ nor do they ``create or 
imply any additional fiduciary duties for such issuer or board of 
directors.'' \29\ In addition, these votes will not be construed ``to 
restrict or limit the ability of shareholders to make proposals for 
inclusion in proxy materials related to executive compensation.'' \30\
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    \27\ Exchange Act Section 14A(c)(1).
    \28\ Exchange Act Section 14A(c)(2).
    \29\ Exchange Act Section 14A(c)(3).
    \30\ Exchange Act Section 14A(c)(4). In addition, Exchange Act 
Section 14A(d) provides that every institutional manager subject to 
Exchange Act Section 13(f) [15 U.S.C. 78m(f)] shall report at least 
annually how it voted on any shareholder vote required by Section 
951 of the Act, including the shareholder vote on executive 
compensation, the shareholder vote on the frequency of shareholder 
votes on executive compensation, and the golden parachute 
compensation vote, unless such vote is otherwise required to be 
reported publicly by rule or regulation of the Commission. 
Amendments to our rules to implement this requirement will be 
proposed in a separate rulemaking.
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    Section 14A(a)(3) requires that both the initial shareholder vote 
on executive compensation and the initial vote on the frequency of 
votes on executive compensation be included in proxy statements ``for 
the first annual or other meeting of the shareholders occurring after 
the end of the 6-month period beginning on the date of enactment'' of 
the Act.\31\ Thus, the statute requires separate resolutions subject to 
shareholder vote to approve executive compensation and to approve the 
frequency of say-on-pay votes for proxy statements relating to an 
issuer's first annual or other meeting of the shareholders occurring on 
or after January 21, 2011, whether or not the Commission has adopted 
rules to implement Section 14A(a). Because Section 14A(a) applies to 
shareholder meetings taking place on or after January 21, 2011, any 
proxy statements, whether in preliminary or definitive form, even if 
filed prior to this date, for meetings taking place on or after January 
21, 2011, must include the separate resolutions for shareholders to 
approve executive compensation and the frequency of say-on-pay votes 
required by Section 14A(a) without regard to whether the amendments 
proposed in this release have been adopted by that time.\32\
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    \31\ Exchange Act Section 14A(a)(3).
    \32\ For a discussion of the relationship between Section 14A 
and the required shareholder votes on executive compensation for 
companies subject to EESA with outstanding obligations under TARP, 
see Section II.C.3 below.
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    With respect to the disclosure of golden parachute arrangements in 
accordance with Commission regulations in merger proxy statements 
required by Section 14A(b)(1), we note that the statute similarly 
references a 6-month period beginning on the date of enactment of the 
Act. However, because the statute requires such disclosure ``in 
accordance with regulations to be promulgated by the Commission,'' \33\ 
the golden parachute compensation arrangements disclosure under 
proposed new Item 402(t) and a separate

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resolution to approve golden parachute compensation arrangements 
pursuant to Rule 14a-21(c) would not be required for merger proxy 
statements relating to a meeting of shareholders until the effective 
date of our rules implementing Section 14A(b)(1).
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    \33\ Exchange Act Section 14A(b)(1).
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    We are proposing Rule 14a-21 to provide a separate shareholder vote 
to approve executive compensation, to approve the frequency of such 
votes on executive compensation and to approve golden parachute 
compensation arrangements in connection with merger transactions. We 
are also proposing a new Item 24 of Schedule 14A to provide disclosure 
regarding the effect of the shareholder votes required by Rule 14a-21, 
including disclosure of the non-binding nature of the votes. In 
addition, our proposed amendments to Item 5 of Schedule 14A, Item 3 of 
Schedule 14C, Item 1011 of Regulation M-A, Item 8 of Schedule 14D-9, 
and Item 15 of Schedule 13E-3 would require additional disclosure 
regarding golden parachute arrangements in connection with mergers, 
Rule 13e-3 \34\ going-private transactions and tender offers.
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    \34\ 17 CFR 240.13e-3.
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    We are also proposing amendments to Item 402 of Regulation S-K to 
address the issuer's response to the shareholder vote on executive 
compensation in Compensation Discussion and Analysis, and to prescribe 
disclosure about golden parachute compensation arrangements in proposed 
new Item 402(t). Finally, we are proposing amendments to Form 10-K and 
Form 10-Q to require disclosure about whether and how the issuer will 
implement the results of the shareholder advisory vote on the frequency 
of shareholder votes on executive compensation.

II. Discussion of the Proposed Amendments

A. Shareholder Approval of Executive Compensation

1. Proposed Rule 14a-21(a)
    We are proposing Rule 14a-21(a), pursuant to which issuers \35\ 
would be required, not less frequently than once every three years, to 
provide a separate shareholder advisory vote in proxy statements to 
approve the compensation of executives. Proposed Rule 14a-21(a) would 
specify that the separate shareholder vote on executive compensation is 
required only when proxies are solicited for an annual or other meeting 
of security holders for which our rules require the disclosure of 
executive compensation pursuant to Item 402 of Regulation S-K. Proposed 
Rule 14a-21(a) would require a separate shareholder vote to approve the 
compensation of executives for the first annual or other such meeting 
of shareholders occurring on or after January 21, 2011,\36\ the first 
day after the end of the 6-month period beginning on the date of 
enactment of the Act.
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    \35\ Our proposed rules would apply to issuers who have a class 
of equity securities registered under Section 12 [15 U.S.C. 78l] of 
the Exchange Act and are subject to our proxy rules. The application 
of this provision to companies subject to EESA with outstanding 
obligations under TARP is discussed in Section II.C.3 below.
    \36\ Section 14A(a)(3) requires the shareholder advisory votes 
beginning with ``the first annual or other meeting of the 
shareholders occurring after the end of the 6-month period beginning 
on the date of enactment'' of Section 951 of the Act. The Act was 
enacted on July 21, 2010.
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    Proposed Rule 14a-21(a) would specify how an issuer must provide a 
separate shareholder advisory vote to approve the compensation of its 
named executive officers, as defined in Item 402(a)(3) \37\ of 
Regulation S-K. In accordance with Section 14A(a)(1), shareholders 
would vote to approve the compensation of the issuer's named executive 
officers, as such compensation is disclosed in Item 402 \38\ of 
Regulation S-K, including the Compensation Discussion and Analysis 
(``CD&A''), the compensation tables and other narrative executive 
compensation disclosures required by Item 402.\39\ Smaller reporting 
companies \40\ are subject to scaled executive compensation disclosure 
requirements and are not required to include a CD&A. Therefore, for 
smaller reporting companies, the shareholders would vote to approve the 
compensation of the named executive officers, as disclosed under Items 
402(m) \41\ through 402(q) \42\ of Regulation S-K. We are also 
proposing an instruction to new Rule 14a-21 to specify that Rule 14a-21 
does not change the scaled disclosure requirements for smaller 
reporting companies and that smaller reporting companies would not be 
required to provide a CD&A in order to comply with Rule 14a-21.\43\
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    \37\ 17 CFR 229.402(a)(3).
    \38\ If disclosure of golden parachute compensation arrangements 
pursuant to proposed Item 402(t) is included in an annual meeting 
proxy statement, such disclosure would be included in the disclosure 
subject to the shareholder advisory vote under Rule 14a-21(a). We 
are not proposing, however, to require that such disclosure under 
Item 402(t) be included in all annual meeting proxy statements.
    \39\ While not required, our rules ``would not preclude an 
issuer from seeking more specific shareholder opinion through 
separate votes on cash compensation, golden parachute policy, 
severance or other aspects of compensation.'' See Report of the 
Senate Committee on Banking, Housing, and Urban Affairs regarding 
The Restoring American Financial Stability Act of 2010, S. Rep. No. 
111-176 at 133 (2010).
    \40\ As defined in Rule 12b-2 [17 CFR 240.12b-2], these 
generally are companies with a public float of less than $75 million 
as of the last day of their most recently completed second fiscal 
quarter.
    \41\ 17 CFR 229.402(m).
    \42\ 17 CFR 229.402(q).
    \43\ In connection with the shareholder vote on executive 
compensation for companies subject to EESA with outstanding 
obligations under TARP, we adopted a similar instruction to Rule 
14a-20. See TARP Adopting Release, supra note 16, at 75 FR 2795.
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    Consistent with Section 14A, the compensation of directors, as 
disclosed pursuant to Item 402(k) \44\ and by Item 402(r) \45\ is not 
subject to the shareholder advisory vote. In addition, if an issuer 
includes disclosure pursuant to Item 402(s) \46\ of Regulation S-K 
about the issuer's compensation policies and practices as they relate 
to risk management and risk-taking incentives, these policies and 
practices would not be subject to the shareholder advisory vote 
required by Section 14A(a)(1) as they relate to the issuer's 
compensation for employees generally. We note, however, that to the 
extent that risk considerations are a material aspect of the issuer's 
compensation policies or decisions for named executive officers, the 
issuer is required to discuss them as part of its CD&A,\47\ and 
therefore such disclosure would be considered by shareholders when 
voting on executive compensation.
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    \44\ 17 CFR 229.402(k).
    \45\ 17 CFR 229.402(r).
    \46\ 17 CFR 229.402(s).
    \47\ See Proxy Disclosure Enhancements, Release No. 33-9089 
(Dec. 16, 2009) [74 FR 68334] at note 38.
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    Our proposed rule would not require issuers to use any specific 
language or form of resolution to be voted on by shareholders. However, 
the shareholder vote must relate to all executive compensation 
disclosure set forth pursuant to Item 402 of Regulation S-K. New 
Section 14A(a)(1) of the Exchange Act requires that the shareholder 
vote must be ``to approve the compensation of executives, as disclosed 
pursuant to [Item 402 of Regulation S-K] or any successor thereto.'' 
\48\ In our view, a vote to approve a proposal on a different subject 
matter, such as a vote to approve only compensation policies and 
procedures, would not satisfy the requirement of Section 14A(a)(1) or 
proposed Rule 14a-21(a).\49\
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    \48\ Exchange Act Section 14A(a)(1).
    \49\ See the corresponding discussion in the TARP Adopting 
Release, supra note 16, at 75 FR 2791, note 14.
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Request for Comment
    (1) Should we include more specific requirements regarding the 
manner in which issuers should present the

[[Page 66593]]

shareholder vote on executive compensation? For example, should we 
designate the specific language to be used and/or require issuers to 
frame the shareholder vote to approve executive compensation in the 
form of a resolution? If so, what specific language or form of 
resolution should be used?
    (2) Would it be appropriate to exempt smaller reporting companies 
from the shareholder vote to approve executive compensation? Please 
explain the reasons why an exemption would, or would not, be 
appropriate. Would the proposed amendments be disproportionately 
burdensome for smaller reporting companies? \50\
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    \50\ Section 951 of the Act establishes a new Section 14A(e) of 
the Exchange Act, which provides that we may, by rule or order, 
exempt an issuer or class of issuers from the requirements of 
Section 14A(a) and (b). In determining whether to make an exemption 
under this subsection, we are directed to take into account, among 
other considerations, whether the requirements of Section 14A(a) and 
14A(b) disproportionately burden small issuers. We are also 
soliciting comment on a number of issues relating to smaller 
reporting companies as discussed further in Section II.E below.
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    (3) Should we establish compliance dates to phase-in effectiveness 
of our proposed rules? Are there other transition issues that our rules 
should address?
    (4) Section 14A(a)(1), like Section 111(e) of the EESA, does not 
specify which shares are entitled to vote in the shareholder vote to 
approve executive compensation, nor does this section direct the 
Commission to adopt rules addressing this point. As in our 
implementation of EESA Section 111(e), we are not proposing to address 
this question in our rules. Should our rules implementing Section 
14A(a)(1) address this question? If so, how, and on what basis?
2. Proposed Item 24 to Schedule 14A
    We are also proposing a new Item 24 to Schedule 14A. Pursuant to 
this item, issuers would be required to disclose in a proxy statement 
for an annual meeting (or other meeting of shareholders for which our 
rules require executive compensation disclosure) that they are 
providing a separate shareholder vote on executive compensation and to 
briefly explain the general effect of the vote, such as whether the 
vote is non-binding.\51\ This is similar to the approach taken by the 
Commission in connection with disclosure requirements about the 
shareholder vote on executive compensation for companies subject to 
EESA.\52\
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    \51\ Section 14A(a) does not require additional disclosure with 
respect to the non-binding nature of the vote. We are proposing to 
require additional disclosure so that information about the advisory 
nature of the vote is available to shareholders before they vote.
    \52\ See Item 20 of Schedule 14A; TARP Adopting Release, supra 
note 16, at 75 FR 2790.
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Request for Comment
    (5) Are there other disclosures that should be provided by issuers 
regarding the shareholder vote on executive compensation? If so, what 
kinds of disclosure would be useful to shareholders?
3. Proposed Amendments to Item 402(b) \53\ of Regulation S-K
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    \53\ 17 CFR 229.402(b).
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    In connection with our implementation of Section 14A(a)(1), we are 
also proposing amendments to Item 402(b) of Regulation S-K. Item 402 
requires the disclosure of executive compensation and includes 
requirements prescribing narrative and tabular disclosure, as well as 
separate scaled disclosure requirements for smaller reporting 
companies.\54\ Item 402(b) contains the CD&A requirement. CD&A is 
intended to be a narrative overview that puts into context the 
executive compensation disclosure provided elsewhere in response to the 
requirements of Item 402. The CD&A disclosure requirement is 
principles-based, in that it identifies the disclosure concept and 
provides several non-exclusive examples. Under Item 402(b)(1), issuers 
must explain all material elements of their named executive officers' 
compensation by addressing mandatory principles-based topics in their 
CD&A:
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    \54\ Item 402 also includes requirements to disclose director 
compensation (Items 402(k) and 402(r)) and the issuer's compensation 
policies as they relate to risk management (Item 402(s)). As noted 
above, disclosure pursuant to these paragraphs is beyond the scope 
of the shareholder advisory vote to approve executive compensation. 
Similarly, as noted in note 38 above, disclosure pursuant to 
proposed Item 402(t) is beyond the scope of the shareholder advisory 
vote to approve executive compensation unless the issuer includes 
that disclosure in its annual meeting proxy statement.
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     What are the objectives of the company's compensation 
programs?
     What is the compensation program designed to reward?
     What is each element of compensation?
     Why does the company choose to pay each element?
     How does the company determine the amount (and, where 
applicable, the formula) for each element?
     How do each element and the company's decisions regarding 
that element fit into the company's overall compensation objectives and 
affect decisions regarding other elements?

Item 402(b)(2) of Regulation S-K sets forth certain non-exclusive 
examples of the kind of information that an issuer should address in 
its CD&A, depending upon the facts and circumstances.
    Our proposals would amend Item 402(b) to require issuers to address 
in CD&A whether and, if so, how their compensation policies and 
decisions have taken into account the results of shareholder advisory 
votes on executive compensation. This proposed new disclosure is not 
mandated by Section 951 of the Act, but we believe that a requirement 
to provide that information would facilitate better investor 
understanding of issuers' compensation decisions. We note that the 
shareholder advisory vote on executive compensation will apply to all 
issuers, and as a result, we view information about how issuers have 
responded to such votes as more in the nature of a mandatory 
principles-based topic than an example. The manner in which individual 
issuers may respond to such votes in determining executive compensation 
policies and decisions will likely vary depending upon facts and 
circumstances. Accordingly, the proposal would amend Item 402(b)(1) to 
require issuers to address in CD&A whether, and if so, how they have 
considered the results of previous shareholder votes on executive 
compensation required by Section 14A and Rule 14a-20 \55\ in 
determining compensation policies and decisions and, if so, how that 
consideration has affected their compensation policies and 
decisions.\56\
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    \55\ 17 CFR 240.14a-20. Because companies with outstanding 
indebtedness under the TARP will continue to have an annual say-on-
pay vote until they repay all such indebtedness, we are proposing 
that these votes be addressed by issuers in CD&A as well. The 
treatment of companies subject to EESA with outstanding obligations 
under TARP is discussed in Section II.C.3 below.
    \56\ Reporting companies are currently required to disclose, 
pursuant to Item 5.07 of Form 8-K [17 CFR 249.208a], the results of 
a shareholder vote within four business days after the end of the 
meeting at which the vote is held. We are not proposing any 
additional disclosure on Form 8-K for a company to discuss the 
results of the votes required by Exchange Act Section 14A, though 
companies may voluntarily provide additional disclosure.
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    Smaller reporting companies are subject to scaled disclosure 
requirements in Item 402 of Regulation S-K and are not required to 
include a CD&A. We are not proposing to add a specific requirement for 
smaller reporting companies to provide disclosure about how previous 
votes pursuant to Section 14A affected compensation policies and 
decisions because we believe such information would not be as valuable 
outside the context of a complete CD&A covering the full range of 
matters required to be

[[Page 66594]]

addressed by Item 402(b). However, we note that pursuant to Item 402(o) 
\57\ of Regulation S-K, smaller reporting companies are required to 
provide a narrative description of any material factors necessary to an 
understanding of the information disclosed in the Summary Compensation 
Table. If consideration of prior executive compensation advisory votes 
is such a factor for a particular issuer, disclosure would be required 
pursuant to Item 402(o).
---------------------------------------------------------------------------

    \57\ 17 CFR 229.402(o).
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Request for Comment
    (6) Should we amend Item 402(b) to require disclosure of the 
consideration of the results of the shareholder advisory vote on 
executive compensation in CD&A as proposed? If not, please explain why 
not.
    (7) Should the requirement to discuss the issuer's consideration of 
the results of the shareholder vote be included in Item 402(b)(1) as a 
mandatory principles-based topic, as proposed, or should it be included 
in Item 402(b)(2) as a non-exclusive example of information that should 
be addressed, depending upon materiality under the individual facts and 
circumstances? In this regard, commentators should explain the reasons 
why they recommend either approach.
    (8) Should the proposed requirement for CD&A discussion of the 
issuer's consideration of previous shareholder advisory votes be 
revised to relate only to consideration of the most recent shareholder 
advisory votes?
    (9) For smaller reporting companies, should we instead require 
disclosure to address the consideration of previous shareholder 
advisory votes on executive compensation? Would such information be 
valuable outside the context of a complete CD&A? Would the existing 
requirements under Item 402(o) of Regulation S-K, pursuant to which 
smaller reporting companies must provide a narrative disclosure of any 
material factors necessary to an understanding of the information 
disclosed in the Summary Compensation Table, be sufficient information 
for investors in smaller reporting companies?

B. Shareholder Approval of the Frequency of Shareholder Votes on 
Executive Compensation

1. Proposed Rule 14a-21(b)
    Under proposed Rule 14a-21(b), issuers would be required, not less 
frequently than once every six years, to provide a separate shareholder 
advisory vote in proxy statements for annual meetings to determine 
whether the shareholder vote on the compensation of executives required 
by Section 14A(a)(1) ``will occur every 1, 2, or 3 years.'' \58\ 
Proposed Rule 14a-21(b) would also clarify that the separate 
shareholder vote on the frequency of shareholder votes on executive 
compensation would be required only in a proxy statement solicited for 
an annual or other meeting of shareholders for which our rules require 
compensation disclosure.\59\ Under proposed Rule 14a-21(b), issuers 
would be required to provide the separate shareholder vote on the 
frequency of the say-on-pay vote for the first annual or other such 
meeting of shareholders occurring on or after January 21, 2011.\60\
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    \58\ Exchange Act Section 14A(a)(2).
    \59\ As discussed above in note 16, proposed Rule 14a-21(b) 
would require issuers to conduct the required advisory vote in 
connection with the election of directors, when our rules call for 
disclosure of executive compensation. In our view, a separate 
shareholder vote on the frequency of shareholder votes on executive 
compensation is required only with respect to an annual meeting of 
shareholders for which proxies will be solicited for the election of 
directors or a special meeting in lieu of such annual meeting.
    \60\ See Section II.C.3 below for a discussion of the 
application of this section to companies subject to EESA with 
outstanding obligations under TARP.
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Request for Comment
    (10) Should we include more specific requirements regarding the 
manner in which issuers should present the shareholder vote on the 
frequency of shareholder votes on executive compensation? For example, 
should we designate the specific language to be used and/or require 
issuers to frame the shareholder vote on the frequency of shareholder 
votes to approve executive compensation in the form of a resolution? If 
so, what specific language or form of resolution should be used?
    (11) Should a new issuer be permitted to disclose the frequency of 
its say-on-pay votes in the registration statement for its initial 
public offering and be exempted from conducting say-on-pay and 
frequency votes until the year disclosed? For example, if an issuer 
discloses in its initial public offering prospectus that it will 
conduct a say-on-pay vote every two years, should we exempt it from the 
requirements of Section 14A(a)(1) and 14A(a)(2) for its first annual 
meeting as a reporting company?
    (12) Section 14A(a)(2) does not specify which shares are entitled 
to vote in the shareholder vote on the frequency of the shareholder 
vote to approve executive compensation, nor does this section direct 
the Commission to adopt rules addressing this point. We are not 
proposing to address this question in our rules, but should our rules 
implementing Section 14A(a)(2) address this question? If so, how, and 
on what basis?
2. Proposed Item 24 of Schedule 14A
    In addition to disclosure regarding the vote on executive 
compensation, issuers would be required to disclose in the proxy 
statement that they are providing a separate shareholder advisory vote 
on the frequency of the shareholder advisory vote on executive 
compensation. Item 24 of Schedule 14A would also require issuers to 
briefly explain the general effect of this vote, such as whether the 
vote is non-binding.\61\ As noted above, this is similar to the 
approach taken by the Commission in connection with disclosure 
requirements about the shareholder vote on executive compensation for 
companies subject to EESA.
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    \61\ As discussed above in note 51, Section 14A(a) does not 
require additional disclosure with respect to the non-binding nature 
of the vote. We are proposing to require additional disclosure so 
that information about the advisory nature of the vote is available 
to shareholders before they vote.
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Request for Comment
    (13) Should we require disclosure about the general effect of this 
shareholder advisory vote? Is such disclosure useful to shareholders?
    (14) Are there other disclosures that should be provided by issuers 
regarding the shareholder vote on the frequency of say-on-pay votes? If 
so, what kinds of disclosure would be useful to shareholders?
3. Proposed Amendment to Rule 14a-4
    Section 14A(a)(2) requires a shareholder advisory vote on whether 
say-on-pay votes will occur every 1, 2, or 3 years. Thus, shareholders 
must be given four choices: Whether the shareholder vote on executive 
compensation will occur every 1, 2, or 3 years, or to abstain from 
voting on the matter. In our view, Section 14A(a)(2) does not allow for 
alternative formulations of the shareholder vote, such as proposals 
that would provide shareholders with two substantive choices (e.g., to 
hold a separate shareholder vote on executive compensation every year 
or less frequently), or only one choice (e.g., a company proposal to 
hold shareholder votes every two years). We would expect that the board 
of directors will include a recommendation as to how shareholders 
should vote on the frequency of shareholder votes on

[[Page 66595]]

executive compensation. However, the issuer must make clear in these 
circumstances that the proxy card provides for four choices (every 1, 
2, or 3 years, or abstain) and that shareholders are not voting to 
approve or disapprove the issuer's recommendation. Accordingly, we are 
proposing amendments to our proxy rules to reflect the statutory 
requirement that shareholders must be provided the opportunity to cast 
an advisory vote on whether the shareholder vote on executive 
compensation required by Section 14A(a)(1) of the Exchange Act will 
occur every 1, 2, or 3 years, or to abstain from voting on the 
matter.\62\
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    \62\ Because the shareholder vote on the frequency of voting on 
executive compensation is advisory, we do not believe that it is 
necessary to prescribe a standard for determining which frequency 
has been ``adopted'' by the shareholders. As discussed in the 
following section, however, for purposes of Rule 14a-8 we are 
proposing that an issuer may exclude as ``substantially 
implemented'' a shareholder proposal that seeks a say-on-pay vote or 
that relates to the frequency of say-on-pay votes only if the issuer 
has implemented a say-on-pay voting frequency that is consistent 
with the vote of a plurality of the votes cast. For that rule, we 
are proposing a plurality standard because the proxy card will have 
three substantive choices (1, 2, or 3 years), and as a consequence 
there may be situations where none of these three frequencies has 
been supported by a majority of the votes cast or shares represented 
at a meeting.
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    Specifically, we are proposing amendments to Rule 14a-4 under the 
Exchange Act, which provides requirements as to the form of proxy that 
issuers are required to include with their proxy materials, to require 
that issuers present four choices to their shareholders. Under existing 
Rule 14a-4, the form of proxy is required to provide means whereby the 
person solicited is afforded an opportunity to specify by boxes a 
choice between approval or disapproval of, or abstention with respect 
to each separate matter to be acted upon, other than elections to 
office.\63\ The proposed amendments would revise this standard to 
permit proxy cards to reflect the choice of 1, 2, or 3 years, or 
abstain, for these votes.
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    \63\ Rule 14a-4(b)(1).
---------------------------------------------------------------------------

Request for Comment
    (15) Will the four choices available to shareholders for the 
frequency of shareholder votes on executive compensation be 
sufficiently clear?
    (16) Will issuers, brokers, transfer agents, and data processing 
firms be able to accommodate four choices (i.e., 1, 2, or 3 years, or 
abstain) for a single line item on a proxy card? What technical or 
processing difficulties do such a change to the proxy card present? If 
there are technical or processing difficulties, are there practical 
ways to mitigate them?
4. Proposed Amendment to Rule 14a-8
    We are also proposing an amendment to Rule 14a-8 under the Exchange 
Act to add a note to Rule 14a-8(i)(10) that would clarify the status of 
shareholder proposals that seek an advisory shareholder vote on 
executive compensation or that relate to the frequency of shareholder 
votes approving executive compensation. Rule 14a-8 provides eligible 
shareholders with an opportunity to include a proposal in an issuer's 
proxy materials for a vote at an annual or special meeting of 
shareholders. An issuer generally is required to include the proposal 
unless the shareholder has not complied with the rule's procedural 
requirements or the proposal falls within one of the rule's 13 
substantive bases for exclusion.\64\ One of the substantive bases for 
exclusion, Rule 14a-8(i)(10), provides that an issuer may exclude a 
shareholder proposal that has already been substantially implemented.
---------------------------------------------------------------------------

    \64\ These substantive bases for exclusion are set forth in Rule 
14a-8(i).
---------------------------------------------------------------------------

    We believe that under certain conditions, an issuer's response to 
the say-on-pay and related frequency votes in Section 951 of the Act 
may be viewed as having substantially implemented subsequent 
shareholder proposals that seek a vote on the same matters. We are 
proposing to add a new note to Rule 14a-8(i)(10) to permit the 
exclusion of a shareholder proposal that would provide a say-on-pay 
vote or seeks future say-on-pay votes or that relates to the frequency 
of say-on-pay votes, provided the issuer has adopted a policy on the 
frequency of say-on-pay votes that is consistent with the plurality of 
votes cast in the most recent vote in accordance with Rule 14a-
21(b).\65\ As noted in Section I above, a ``say-on-pay'' vote is 
defined as a separate resolution subject to shareholder vote to approve 
the compensation of executives, as disclosed pursuant to Item 402 of 
Regulation S-K, or any successor to Item 402.
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    \65\ More specifically, to exclude such shareholder proposals, 
the issuer must have adopted the voting frequency receiving the 
greatest number of votes in the most recent advisory vote on the 
frequency of say-on-pay votes. We are prescribing this voting 
standard solely for purposes of determining the scope of the 
exclusion under Rule 14a-8(i)(10), and not for the purpose of 
determining whether a particular voting frequency should be 
considered to have been adopted or approved by shareholder vote as a 
matter of state law.
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    As a result of this proposed amendment, if an issuer implements the 
results of the advisory vote of its shareholders as to how often it 
will solicit votes to approve the compensation of its executives, it 
would be permitted to exclude shareholder proposals that propose a vote 
on the approval of executive compensation as disclosed pursuant to Item 
402 of Regulation S-K or on the frequency of such votes, including 
those drafted as requests to amend the issuer's governing documents, so 
long as the issuer has adopted a policy on the frequency of say-on-pay 
votes that is consistent with the plurality of votes cast in the most 
recent vote required by Rule 14a-21(b) and provides a vote on frequency 
at least as often as required by Section 14A(a)(2). For example, if in 
the first vote under Rule 14a-21(b) the largest number of votes were 
cast for a two-year frequency for future shareholder votes on executive 
compensation, and the issuer discloses that it has approved a policy to 
hold the vote every two years, a shareholder proposal seeking a 
different frequency could be excluded so long as the issuer seeks votes 
on executive compensation every two years and provides a vote on 
frequency at least every six years as required by Section 14A(a)(2).
    We believe that, in these circumstances, additional shareholder 
proposals on frequency generally would unnecessarily burden the company 
and its shareholders given the company's substantial implementation of 
a plurality shareholder vote regarding the frequency of say-on-pay 
votes. For the same reasons, a shareholder proposal that would provide 
an advisory vote or seek future advisory votes on executive 
compensation with substantially the same scope as the vote required by 
Rule 14a-21(a) would be subject to exclusion under Rule 14a-
8(i)(10).\66\
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    \66\ A shareholder proposal that proposes a periodic say-on-pay 
vote would not be excludable under Rule 14-8(i)(10) if the issuer 
does not adopt a frequency policy that is consistent with the 
plurality of votes cast in the most recent shareholder vote pursuant 
to Rule 14a-21(b).
---------------------------------------------------------------------------

    Section 14A(c)(4) provides that the shareholder advisory votes 
required by Sections 14A(a) and (b) may not be construed ``to restrict 
or limit the ability of shareholders to make proposals for inclusion in 
proxy materials related to executive compensation.'' As proposed to be 
amended, Rule 14a-8(i)(10) would only provide a basis for exclusion of 
a say-on-pay proposal if the company has adopted a policy on the 
frequency of say-on-pay votes that is consistent with the plurality of 
votes cast in the most recent shareholder vote. Otherwise, simply 
having the required vote on frequency would not restrict or limit the 
ability of a shareholder to have a say-on-

[[Page 66596]]

pay proposal included in the company's proxy materials.
Request for Comment
    (17) Is it necessary or appropriate to prescribe a standard, such 
as a plurality, as proposed, for resolving whether issuers have 
substantially implemented the shareholders' vote on the frequency of 
the vote on executive compensation for purposes of Rule 14a-8? Is a 
standard other than plurality appropriate? Should the standard vary if 
the company's capital structure includes multiple classes of voting 
stock (e.g., where classes elect different subsets of the board of 
directors)?
    (18) Is the proposed amendment to Rule 14a-8(i)(10) appropriate? 
Should we, as proposed, allow the exclusion of shareholder proposals 
that propose say-on-pay votes with substantially the same scope as the 
votes required by Rule 14a-21(a)? If not, please explain why not.
    (19) Should we, as proposed, permit the exclusion of shareholder 
proposals that seek to provide say-on-pay votes more or less regularly 
than the frequency endorsed by a plurality of votes cast in the most 
recent vote required under Rule 14a-21(b), as described above? Are 
there other circumstances under which shareholder proposals relating to 
the frequency of say-on-pay votes should be considered substantially 
implemented and subject to exclusion under Rule 14a-8(i)(10)?
    (20) Should we amend Rule 14a-8(i)(10) to address other specific 
factual scenarios that are likely to occur as a result of the 
implementation of Section 951 and our related rules? Are there other 
specific facts and circumstances under which Rule 14a-8(i)(10) should 
permit or prohibit the exclusion of shareholder proposals that seek 
say-on-pay votes?
    (21) Should the proposed note to Rule 14a-8(i)(10) be available if 
the issuer has materially changed its compensation program in the time 
period since the most recent say-on-pay vote required by Section 
14A(a)(1) and Rule 14a-21(a) or the most recent frequency vote required 
by Section 14A(a)(2) and Rule 14a-21(b)?
5. Proposed Amendments to Form 10-K and Form 10-Q
    Issuers are currently required to disclose the results of 
shareholder votes pursuant to Item 5.07 of Form 8-K within four 
business days following the day the shareholder meeting ends. The rules 
we propose today would not alter this requirement. We are proposing 
amendments to Form 10-K and Form 10-Q to require additional disclosure 
regarding the issuer's action as a result of the shareholder vote on 
the frequency of shareholder votes on executive compensation in 
accordance with Section 14A.\67\
---------------------------------------------------------------------------

    \67\ A company may, but is not required to, provide additional 
disclosure in Item 5.07 of Form 8-K regarding any of the shareholder 
votes required by Section 951 of the Act and how the results of 
these votes affect its plans for the future.
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    Our proposed amendments to Item 9B of Form 10-K and new Item 5(c) 
of Part II of Form 10-Q would require an issuer to disclose, in the 
quarterly report on Form 10-Q covering the period during which the 
shareholder advisory vote occurs, or in the annual report on Form 10-K 
if the shareholder advisory vote occurs during the issuer's fourth 
quarter, its decision regarding how frequently it will conduct 
shareholder advisory votes on executive compensation in light of the 
results of the shareholder vote on frequency. Because the shareholder 
vote to determine the frequency of shareholder votes on executive 
compensation is advisory and non-binding on the issuer, we are 
proposing disclosure in the Form 10-Q (or the Form 10-K for shareholder 
meetings taking place during the fourth quarter) to notify shareholders 
on a timely basis whether the issuer's determination regarding 
frequency will follow the results of the shareholder vote.
Request for Comment
    (22) Should we require, as proposed, disclosure in a Form 10-Q or 
Form 10-K regarding the issuer's plans with respect to the frequency of 
its shareholder votes to approve executive compensation? Would this 
disclosure be useful for investors?
    (23) Would the proposed Form 10-Q or Form 10-K disclosure notify 
shareholders on a timely basis of the issuer's determination regarding 
the frequency of the say-on-pay vote? Should this disclosure instead be 
included in the Form 8-K reporting the voting results otherwise 
required to be filed within four business days after the end of the 
shareholder meeting, or in a separate Form 8-K required to be filed 
within four business days of when an issuer determines how frequently 
it will conduct shareholder votes on executive compensation in light of 
the results of the shareholder vote on frequency?
    (24) Would the amendments to Form 10-Q and 10-K, as proposed, allow 
an issuer sufficient time to analyze the results of the shareholder 
votes on the frequency of shareholder votes on executive compensation 
and reach a conclusion on how it should respond? Should the issuer's 
plans with respect to the frequency of such shareholder votes instead 
be required to be disclosed no later than in the Form 10-Q or Form 10-K 
for the next full time period ended subsequent to the vote (for 
example, if the vote occurs in the second quarter of the issuer's 
fiscal year, the disclosure would be required no later than in the Form 
10-Q for the third quarter)?
6. Effect of Shareholder Vote
    Although the language in Section 951 of the Act indicates that the 
separate resolution subject to shareholder vote is ``to determine'' the 
frequency of the shareholder vote on executive compensation, in light 
of new Section 14A(c) of the Exchange Act, we believe this shareholder 
vote, and all shareholder votes required by Section 951 of the Act, are 
intended to be non-binding on the issuer or the issuer's board of 
directors. Under new Section 14A(c), the shareholder votes referred to 
in Section 14A(a) and Section 14A(b) (which includes all votes under 
Section 951 of the Act) ``shall not be binding on the issuer or the 
board of directors of an issuer.'' \68\ As proposed, new Item 24 of 
Schedule 14A would include language to require disclosure regarding the 
general effect of the shareholder advisory votes, such as whether the 
vote is non-binding.\69\
---------------------------------------------------------------------------

    \68\ Exchange Act Section 14A(c).
    \69\ Even though each of the shareholder advisory votes required 
by Section 14A is non-binding pursuant to the rule of construction 
in Section 14A(c), we believe these votes could play a role in an 
issuer's executive compensation decisions.
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Request for Comment
    (25) Under the proposed rules, the shareholder vote on the 
frequency of the say-on-pay vote would not bind the issuer or board of 
directors of the issuer. Are there other ways to provide for a vote 
``to determine'' the frequency of the say-on-pay resolution that are 
consistent with the Section 14A(c) rule of construction that the vote 
``shall not be binding''?

C. Issues Relating to Both Shareholder Votes Required by Section 14A(a)

1. Proposed Amendments to Rule 14a-6
    Rule 14a-6(a) generally requires issuers to file proxy statements 
in preliminary form at least ten calendar days before definitive proxy 
materials are first sent to shareholders, unless the items included for 
a shareholder vote in the proxy statement are limited to specified 
matters. During the time before final proxy materials are filed, our 
staff has the opportunity to comment on the disclosures and issuers

[[Page 66597]]

are able to incorporate the staff's comments in their final proxy 
materials. However, an issuer is not required to file preliminary 
materials if the only matters to be acted upon are:
     The election of directors,
     The election, approval or ratification of the accountants,
     Approval or ratification of certain employee benefits 
plans or plan amendments,
     Shareholder proposals under Rule 14a-8,\70\ and
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    \70\ Rules 14a-6(a)(5) and (6) specify other proposals by 
investment companies registered under the Investment Company Act of 
1940 [15 U.S.C. 80a-1 et seq.], the inclusion of which does not 
compel filing of preliminary materials.
---------------------------------------------------------------------------

     Shareholder votes to approve executive compensation for 
companies with outstanding indebtedness under the TARP, in accordance 
with the EESA.\71\
---------------------------------------------------------------------------

    \71\ See Rule 14a-6(a)(7) [17 CFR 240.14a-6(a)(7)].
---------------------------------------------------------------------------

    Absent an amendment to Rule 14a-6(a), a proxy statement that 
includes a solicitation for either the shareholder vote on the approval 
of executive compensation or the approval of the frequency of the votes 
approving executive compensation required by Sections 14A(a)(1) and 
14A(a)(2) would need to be filed in preliminary form. Because the 
shareholder vote on executive compensation and the shareholder vote on 
the frequency of such shareholder votes would be required for all 
issuers, we view them as similar to the other items specified in Rule 
14a-6(a) that do not require a preliminary filing.\72\
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    \72\ In our view, a preliminary filing requirement for the 
shareholder votes on executive compensation and the frequency of 
such votes would impose unnecessary administrative burdens and 
preparation and processing costs associated with the filing and 
processing of proxy material that would unlikely be selected for 
review in preliminary form. See Proxy Rules--Amendments to Eliminate 
Filing Requirements for Certain Preliminary Proxy Material; 
Amendments With Regard to Rule 14a-8, Shareholder Proposals, Release 
No. 34-25217 (Dec. 21, 1987) [52 FR 48982].
---------------------------------------------------------------------------

    We are proposing to amend Rule 14a-6(a) to add the shareholder 
votes on executive compensation and the frequency of shareholder votes 
on executive compensation required by Section 14A(a) to the list of 
items that do not trigger a preliminary filing.\73\ Under the proposed 
amendments, a proxy statement that includes a solicitation with respect 
to either of these shareholder votes would not trigger a requirement 
that the issuer file the proxy statement in preliminary form, so long 
as any other matters to which the solicitation relates include only the 
other matters specified by Rule 14a-6(a).
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    \73\ In the recent release relating to the similar shareholder 
votes for companies subject to EESA with outstanding indebtedness 
under the TARP program, we received comments regarding whether a 
preliminary proxy statement should be required for shareholder votes 
on executive compensation for TARP companies. While some 
commentators argued that a preliminary proxy statement should be 
required, other commentators argued persuasively that the burdens of 
such an approach outweighed the costs. As a result, we decided to 
eliminate the requirement for a preliminary proxy statement for 
shareholder votes on executive compensation for TARP companies. See 
TARP Adopting Release, supra note 16, at 75 FR 2791.
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Request for Comment
    (26) Should we amend Rule 14a-6(a) under the Exchange Act as 
proposed so that issuers are not required to file a preliminary proxy 
statement as a consequence of providing a separate shareholder vote on 
executive compensation in accordance with Rule 14a-21(a)? If not, 
please explain why not.
    (27) Should we amend Rule 14a-6(a) under the Exchange Act as 
proposed so that issuers are not required to file a preliminary proxy 
statement as a consequence of providing a separate shareholder vote on 
the frequency of shareholder votes on executive compensation in 
accordance with Rule 14a-21(b)? If not, please explain why not.
    (28) Should we amend Rule 14a-6(a) under the Exchange Act so that 
issuers are not required to file a preliminary proxy statement as a 
consequence of providing any other separate shareholder vote on 
executive compensation? If so, please explain in what circumstances.
2. Broker Discretionary Voting
    Section 957 of the Act amends Section 6(b) of the Exchange Act \74\ 
to direct national securities exchanges to change their rules to 
prohibit broker discretionary voting of uninstructed shares in certain 
matters, including shareholder votes on executive compensation. The 
national securities exchanges have begun to amend their rules regarding 
broker discretionary voting on executive compensation matters to 
implement this requirement.\75\ Under these amended exchange rules, for 
issuers with a class of securities listed on a national securities 
exchange, broker discretionary voting of uninstructed shares would not 
be permitted for a shareholder vote on executive compensation or a 
shareholder vote on the frequency of the shareholder vote on executive 
compensation.\76\
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    \74\ 15 U.S.C. 78f(b).
    \75\ See, e.g., Notice of Filing and Order Granting Accelerated 
Approval of a Proposed Rule Change to Amend NYSE Rule 452 and Listed 
Company Manual Section 402.08 to Eliminate Broker Discretionary 
Voting on Executive Compensation Matters, Release No. 34-62874, SR-
NYSE-2010-59 (Sept. 9, 2010).
    \76\ Broker discretionary voting in connection with merger or 
acquisition transactions is not permitted under current rules of the 
national securities exchanges. See, e.g., NYSE Rule 452.
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3. Relationship to Shareholder Votes on Executive Compensation for TARP 
Companies
    Issuers that have received financial assistance under the Troubled 
Asset Relief Program, or TARP, are required to conduct a separate 
annual shareholder vote to approve executive compensation during the 
period in which any obligation arising from the financial assistance 
provided under the TARP remains outstanding.\77\
---------------------------------------------------------------------------

    \77\ Section 111(e) of the Emergency Economic Stabilization Act 
of 2008, 12 U.S.C. 5221. See also Rule 14a-20.
---------------------------------------------------------------------------

    Because the vote required to approve executive compensation 
pursuant to the Emergency Economic Stabilization Act of 2008, or EESA, 
is effectively the same vote that would be required under Section 
14A(a)(1), we believe that a shareholder vote to approve executive 
compensation under Rule 14a-20 for issuers with outstanding 
indebtedness under the TARP would satisfy Rule 14a-21(a). Consequently, 
we would not require issuers who conduct an annual shareholder vote to 
approve executive compensation pursuant to EESA to conduct a separate 
shareholder vote on executive compensation under Section 14A(a)(1) 
until such issuers have repaid all indebtedness under the TARP. These 
issuers would be required to include a separate shareholder advisory 
vote on executive compensation pursuant to Section 14A(a)(1) and 
proposed Rule 14a-21(a) for the first annual meeting of shareholders 
after the issuer has repaid all outstanding indebtedness under the 
TARP.
    Even though issuers with outstanding indebtedness under the TARP 
have a separate statutory requirement to provide an annual shareholder 
vote on executive compensation so long as they are indebted under the 
TARP, these issuers would be required, pursuant to Section 14A(a)(2) of 
the Exchange Act, to provide a separate shareholder advisory vote on 
the frequency of shareholder votes on executive compensation for the 
first annual or other such meeting of shareholders on or after January 
21, 2011. In our view, however, because such issuers have a requirement 
to conduct an annual shareholder advisory vote on executive 
compensation so long as they are indebted under the TARP, a shareholder

[[Page 66598]]

advisory vote on the frequency of such votes while the issuer remains 
subject to a requirement to conduct such votes on an annual basis would 
not serve a useful purpose.
    We have considered, therefore, whether issuers with outstanding 
indebtedness under the TARP should be subject to the requirements of 
Section 14A(a)(2) of the Exchange Act. We do not believe it is 
necessary or appropriate in the public interest or consistent with the 
protection of investors to require an issuer to conduct a shareholder 
advisory vote on the frequency of the shareholder advisory vote on 
executive compensation when the issuer already is required to conduct 
advisory votes on executive compensation annually regardless of the 
outcome of such frequency vote. Because Section 14A(a)(2) would burden 
TARP issuers and their shareholders with an additional vote while 
providing little benefit to either the issuer or its shareholders, we 
believe an exemption by rule is appropriate, pursuant to both the 
exemptive authority granted by Section 14A(e) of the Exchange Act \78\ 
and the Commission's general exemptive authority pursuant to Section 
36(a)(1) of the Exchange Act.\79\ As a result, Rule 14a-21(b), as 
proposed, would exempt issuers with outstanding indebtedness under the 
TARP from the requirements of Rule 14a-21(b) and Section 14A(a)(2) 
until the issuer has repaid all outstanding indebtedness under the 
TARP. Similar to the approach for shareholder advisory votes under Rule 
14a-21(a), these issuers would be required to include a separate 
shareholder advisory vote on the frequency of shareholder advisory 
votes on executive compensation pursuant to Section 14A(a)(2) and 
proposed Rule 14a-21(b) for the first annual meeting of shareholders 
after the issuer has repaid all outstanding indebtedness under the 
TARP.
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    \78\ Exchange Act Section 14A(e) provides that ``the Commission 
may, by rule or order, exempt an issuer or class of issuers from the 
requirement'' under Sections 14A(a) or 14A(b). Section 14A(e) 
further provides that ``in determining whether to make an exemption 
under this subsection, the Commission shall take into account, among 
other considerations, whether the requirements under [Section 14A(a) 
and 14A(b)] disproportionately burdens small issuers.'' In proposing 
the exemption, the Commission considered whether the requirements of 
Section 14A(a) and (b) as applied to TARP recipients to conduct a 
shareholder advisory vote on the frequency of say-on-pay votes could 
disproportionately burden small issuers. As described further in 
Section II.E below, we have also considered whether the provision as 
a whole disproportionately burdens small issuers. We note, in 
addition, that to the extent a TARP recipient is a small issuer, it 
would be subject to the exemption.
    \79\ 15 U.S.C. 78 mm(a)(1). Exchange Act Section 36(a)(1) 
provides that ``the Commission, by rule, regulation, or order, may 
conditionally or unconditionally exempt any person, security, or 
transaction, or any class of persons, securities, or transactions, 
from any provision or provisions of this title or of any rule or 
regulation thereunder, to the extent that such exemption is 
necessary or appropriate in the public interest, and is consistent 
with the protection of investors.''
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Request for Comment
    (29) Should issuers who have outstanding indebtedness under the 
TARP be required to conduct a shareholder advisory vote under Rule 14a-
21(a) for the first annual meeting after the issuer has repaid all 
outstanding indebtedness under the TARP? Should we amend Rule 14a-20 to 
reflect this requirement?
    (30) Should issuers who have outstanding indebtedness under the 
TARP satisfy Rule 14a-21(a) when such issuers conduct a shareholder 
advisory vote to approve executive compensation pursuant to Rule 14a-
20? Should we reflect this position in Rule 14a-21(a)?
    (31) Should issuers who have outstanding indebtedness under the 
TARP be exempted, as proposed, from the requirement to conduct a 
shareholder advisory vote under Section 14A(a)(2) and Rule 14a-21(b) 
until the first annual meeting after the issuer has repaid all 
outstanding indebtedness under the TARP? Is our proposed approach 
consistent with the purposes of Section 951 of the Act? Instead, should 
issuers who have outstanding indebtedness under the TARP be required to 
provide the shareholder vote on frequency at a time when they are still 
required to provide an annual vote under EESA? Should such an issuer be 
permitted, at its discretion, to conduct a shareholder advisory vote on 
frequency while it has outstanding indebtedness under the TARP and, if 
such vote is held, not be required to conduct such a vote at its first 
annual meeting after it has repaid all outstanding indebtedness under 
the TARP?

D. Disclosure of Golden Parachute Arrangements and Shareholder Approval 
of Golden Parachute Arrangements

1. General
    Section 14A(b)(1) of the Exchange Act requires all persons making a 
proxy or consent solicitation seeking shareholder approval of an 
acquisition, merger, consolidation or proposed sale or disposition of 
all or substantially all of an issuer's assets to provide disclosure, 
in accordance with rules we promulgate, of any agreements or 
understandings that the soliciting person has with its named executive 
officers (or that it has with the named executive officers of the 
acquiring issuer) concerning compensation that is based on or otherwise 
relates to the merger transaction. In addition, Section 14A(b)(1) 
requires disclosure of any agreements or understandings that an 
acquiring issuer has with its named executive officers and that it has 
with the named executive officers of the target company in transactions 
in which the acquiring issuer is making a proxy or consent solicitation 
in seeking shareholder approval of an acquisition, merger, 
consolidation or proposed sale or disposition of all or substantially 
all of an issuer's assets. Section 14A(b)(1) of the Exchange Act 
requires the disclosure to be in a ``clear and simple form in 
accordance with regulations to be promulgated by the Commission'' and 
to include ``the aggregate total of all such compensation that may (and 
the conditions upon which it may) be paid or become payable to or on 
behalf of such executive officer.'' \80\
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    \80\ Exchange Act Section 14A(b)(1).
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    Under existing Commission rules, a target company soliciting 
shareholder approval of a merger is required to describe briefly any 
substantial interest, direct or indirect, by security holdings or 
otherwise, of any person who has been an executive officer or director 
since the beginning of the last fiscal year in any matter to be acted 
upon.\81\ In response to this requirement, target companies often 
include disclosure in their proxy statements about compensation 
arrangements that may be payable to a target company's executive 
officers and directors in connection with the transaction. In addition, 
under our existing rules, companies are required to include in annual 
reports and annual meeting proxy statements detailed information in 
accordance with Item 402(j) of Regulation S-K about payments that may 
be made to named executive officers upon termination of employment or 
in connection with a change in control.\82\ The Item 402(j) disclosure 
is provided based on year-end information and various assumptions, and 
generally does not

[[Page 66599]]

reflect any actual termination or termination event.\83\
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    \81\ Item 5 of Schedule 14A.
    \82\ See Item 402(j) of Regulation S-K [17 CFR 229.402(j)], Item 
8 of Schedule 14A, and Item 11 of Form 10-K. Item 402(j) disclosure 
is required in both Annual Reports on Form 10-K and in annual 
meeting proxy statements, though such disclosure is typically 
provided in annual meeting proxy statements and incorporated into 
the Form 10-K by reference pursuant to General Instruction G(3) of 
Form 10-K. References to ``annual meeting proxy statements'' in this 
context are meant to encompass both locations for the disclosure.
    \83\ See Instruction 1 to Item 402(j), which requires 
quantitative disclosure applying the assumptions that the triggering 
event took place on the last business day of the issuer's last 
completed fiscal year, and the price per share of the issuer's 
securities is the closing market price as of that date. Where a 
triggering event has actually occurred for a named executive officer 
who was no longer serving as a named executive officer of the issuer 
at the end of the last completed fiscal year, Instruction 4 to Item 
402(j) requires Item 402(j) disclosure for that named executive 
officer only for that triggering event.
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    While the Commission's existing rules require disclosure about 
golden parachute arrangements as described above, they do not include 
detailed requirements for such disclosures that are applicable to proxy 
or consent solicitations to approve the transaction, as required by 
Section 14A(b)(1) of the Exchange Act. Consequently, in order to 
implement the disclosure requirements of Section 14A(b)(1), we are 
proposing to amend Schedule 14A to require disclosure with respect to 
golden parachute compensation arrangements in proxy or consent 
solicitations in connection with an acquisition, merger, consolidation, 
or proposed sale or other disposition of all or substantially all 
assets, in accordance with new proposed Item 402(t) of Regulation S-K. 
As described below, although not required by Section 14A(b)(1), we are 
also proposing to amend the disclosure requirements of other, similar 
forms, so that comparable golden parachutes disclosure would be 
required in other, similar transactions.\84\ We are not proposing to 
amend the requirements for golden parachutes disclosure in annual 
meeting proxy statements, although, as described below, under our 
proposal companies would be permitted to provide disclosure in annual 
meeting proxies in accordance with the new requirement.\85\
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    \84\ See Section II.D.3 below.
    \85\ See Sections II.D.2 and II.D.4 below.
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    Section 14A(b)(1) requires disclosure of agreements or 
understandings between the person conducting the solicitation and any 
named executive officers of the issuer or any named executive officers 
of the acquiring issuer if the person conducting the solicitation is 
not the acquiring issuer. In the typical case, the soliciting person is 
the target company in a merger transaction since target company 
shareholder approval is ordinarily required to approve a merger under 
state law. Consistent with Section 14A(b)(1) of the Exchange Act, 
agreements or understandings between a target issuer conducting a 
solicitation and its named executive officers would be subject to 
disclosure under proposed Item 402(t). In addition, because golden 
parachute compensation arrangements also may involve agreements or 
understandings between the acquiring company and the named executive 
officers of the target company, we have formulated proposed Item 402(t) 
to require disclosure of this compensation in addition to the 
disclosure mandated by Section 14A(b)(1). As proposed, Item 402(t) 
would require disclosure of all golden parachute compensation relating 
to the merger among the target and acquiring companies and the named 
executive officers of each in order to cover the full scope of golden 
parachute compensation applicable to the transaction.\86\
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    \86\ As described below, however, because any agreements between 
a soliciting target company's named executive officers and the 
acquiring company are beyond the scope of the disclosure required by 
Section 14A(b)(1), such agreements would not be subject to the Rule 
14a-21(c) shareholder advisory vote required by Section 14A(b)(2) 
and Rule 14a-21(c). See discussion of Rule 14a-21(c) in Section 
II.D.4 below.
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2. Proposed Item 402(t) of Regulation S-K
    As noted above, Section 14A(b)(1) of the Exchange Act requires 
disclosure of the golden parachute compensation in any proxy or consent 
solicitation to approve an acquisition, merger, consolidation or 
proposed sale or disposition of all or substantially all assets to be 
``in a clear and simple form in accordance with regulations to be 
promulgated by the Commission'' and to include ``the aggregate total of 
all such compensation that may (and the conditions upon which it may) 
be paid or become payable to or on behalf of such executive officer.'' 
\87\ To satisfy these requirements for proxy or consent solicitations 
for these transactions, proposed Item 402(t) of Regulation S-K would 
require disclosure of named executive officers' golden parachute 
arrangements in both tabular and narrative formats.\88\ We are 
proposing the following new table:
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    \87\ Exchange Act Section 14A(b)(1).
    \88\ Proposed Instruction 1 to Item 402(t) would provide that 
disclosure would be required for individuals covered by Items 
402(a)(3)(i), (ii), and (iii), and for smaller reporting companies, 
the individuals covered by Items 402(m)(2)(i) and (ii). Accordingly, 
issuers would not have to provide Item 402(t) information with 
respect to individuals who would have been among the most highly 
compensated executive officers but for the fact that they were not 
serving as an executive officer at the end of the last completed 
fiscal year, for whom Item 402 information otherwise is required by 
Item 402(a)(3)(iv), and for smaller reporting companies by Item 
402(l)(2)(iii).

                                                              Golden Parachute Compensation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Tax
                          Name                             Cash ($)    Equity ($)    Pension/    Perquisites/    reimbursement   Other ($)    Total ($)
                                                                                     NQDC ($)    benefits ($)         ($)
(a)                                                              (b)          (c)          (d)             (e)             (f)          (g)          (h)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PEO....................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
PFO....................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
A......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
B......................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
C......................................................
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    The table would present quantitative disclosure of the individual 
elements of compensation that an executive would receive that are based 
on or otherwise relate to the merger, acquisition, or similar 
transaction, and the total for each named executive officer.\89\ 
Elements that would be separately quantified and included in the total 
would be any cash severance payment (e.g., base salary, bonus, and pro-
rata non-equity incentive plan \90\

[[Page 66600]]

compensation payments) (column (b)); the dollar value of accelerated 
stock awards, in-the-money option awards for which vesting would be 
accelerated, and payments in cancellation of stock and option awards 
(column (c)); pension and nonqualified deferred compensation benefit 
enhancements (column (d)); perquisites and other personal benefits and 
health and welfare benefits (column (e)); and tax reimbursements (e.g., 
Internal Revenue Code Section 280G tax gross-ups) (column (f)). We have 
proposed an ``Other'' column of the table for any additional elements 
of compensation not specifically includable in the other columns of the 
table (column (g)). This column, like the columns for the other 
elements, would require footnote identification of each separate form 
of compensation reported. The final column in the table would require 
disclosure, for each named executive officer, of the aggregate total of 
all such compensation (column (h)).\91\ As proposed, the table would 
require separate footnote identification of amounts attributable to 
``single-trigger'' arrangements and amounts attributable to ``double-
trigger'' arrangements, so that shareholders can readily discern these 
amounts.\92\
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    \89\ Proposed Item 402(t)(2) of Regulation S-K.
    \90\ As defined in Item 402(a)(6)(iii) of Regulation S-K.
    \91\ Exchange Act Section 14A(b)(1) requires disclosure of ``the 
aggregate total of all such compensation that may (and the 
conditions upon which it may) be paid or become payable to or on 
behalf of such executive officer.''
    \92\ A ``double-trigger'' arrangement requires that the 
executive's employment be terminated without cause or that the 
executive resign for good reason within a limited period of time 
after the change-in-control to trigger payment. A ``single-trigger'' 
arrangement does not require such a termination or resignation after 
the change-in-control to trigger payment.
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    As noted above, issuers are currently required to provide 
disclosure in annual reports on Form 10-K and in annual meeting proxy 
statements of potential payments upon termination or change-in-control 
for their named executive officers under Item 402(j) of Regulation S-K. 
That item, which does not typically apply to merger proxies, requires 
disclosure regarding each contract, agreement, plan or arrangement, 
whether written or unwritten, that provides for payments to a named 
executive officer at, following, or in connection with termination or 
change in control of the issuer.\93\ We considered whether making the 
disclosure requirements in Item 402(j) applicable to transactions 
enumerated in Section 14A(b)(1), rather than adopting a new disclosure 
item for purposes of Section 14A(b)(1), would be an appropriate 
approach to satisfy the requirements of the Act. It appears, however, 
that certain elements required by Section 14A(b)(1) are not included in 
Item 402(j). Specifically, we believe that the requirement in Section 
14A(b)(1) to present the information in a clear and simple form is most 
appropriately satisfied through the use of tabular disclosure, and Item 
402(j) does not require disclosure in tabular format. In addition, Item 
402(j) does not require disclosure about arrangements that do not 
discriminate in scope, terms or operation in favor of executive 
officers and that are available generally to all salaried 
employees,\94\ permits exclusion of de minimis perquisites and other 
personal benefits,\95\ and does not require presentation of an 
aggregate total of all compensation that is based on or otherwise 
relates to a transaction.\96\
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    \93\ The circumstances covered by Item 402(j) include, without 
limitation, resignation, severance, retirement, a constructive 
termination of a named executive officer, a change in control of the 
registrant, or a change in a named executive officer's 
responsibilities.
    \94\ Instruction 5 to Item 402(j).
    \95\ See Instruction 2 to Item 402(j), which permits exclusion 
of perquisites and other personal benefits or property if the 
aggregate amount of such compensation will be less than $10,000.
    \96\ We are also proposing conforming changes to Item 
402(a)(6)(ii) [17 CFR 229.402(a)(6)(ii)] and Item 402(m)(5)(ii) [17 
CFR 229.402(m)(5)(ii)] of Regulation S-K to clarify that information 
regarding group life, health, hospitalization, or medical 
reimbursement plans that do not discriminate in scope, terms or 
operation, in favor of executive officers or directors of the 
company and that are generally available to all salaried employees 
must be included in disclosure pursuant to proposed Item 402(t).
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    We also considered whether it would be appropriate to amend Item 
402(j) to include the elements required by Section 14A(b)(1), rather 
than adopting a new disclosure item. Section 14A(b)(1) addresses only 
compensation that is ``based on or otherwise relates to an acquisition, 
merger, consolidation, sale, or other disposition of all or 
substantially all of the assets of the issuer.'' In comparison, Item 
402(j) requires disclosure of potential payments in connection with 
``any termination, including without limitation resignation, severance, 
retirement or a constructive termination of a named executive officer, 
or a change in control of the registrant or a change in the named 
executive officer's responsibilities.'' \97\ Although we could amend 
Item 402(j) to mandate disclosure of all the elements required by 
Section 14A(b)(1) for every termination scenario covered by the item, 
we believe such an approach would impose significant new burdens on 
issuers. Alternatively, although we could amend Item 402(j) to include 
the disclosure elements required by Section 14A(b)(1) only with respect 
to change in control of the issuer, we believe that such an approach 
could result in a disclosure presentation that would be confusing to 
investors. Consequently, we are proposing the new item requirements 
described above.
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    \97\ Item 402(j) of Regulation S-K.
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    In a proxy statement soliciting shareholder approval of a merger or 
similar transaction, Item 402(t)'s tabular quantification of dollar 
amounts based on issuer stock price would be required to be based on 
the closing price per share as of the latest practicable date.\98\ 
Where Item 402(t) disclosure is included in an annual meeting proxy 
statement,\99\ such amounts would be calculated based on the closing 
market price per share of the issuer's securities on the last business 
day of the issuer's last completed fiscal year,\100\ consistent with 
quantification standards used in Item 402(j).\101\
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    \98\ Proposed Instruction 1 to Item 402(t)(2).
    \99\ A company may choose to include the disclosure in the 
annual meeting proxy statement in order for the Section 14A(a)(1) 
shareholder vote to satisfy the exception from the merger proxy 
separate shareholder vote. See Section II.D.4 below.
    \100\ Proposed Instruction 2 to Item 402(t)(2).
    \101\ See Instruction 1 to Item 402(j).
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    The tabular disclosure required by Item 402(t) would require 
quantification with respect to any agreements or understandings, 
whether written or unwritten, between each named executive officer and 
the acquiring company or the target company, concerning any type of 
compensation, whether present, deferred or contingent, that is based on 
or otherwise relates to an acquisition, merger, consolidation, sale or 
other disposition of all or substantially all assets. As described 
above, the proposed table would quantify cash severance, equity awards 
that are accelerated or cashed out, pension and nonqualified deferred 
compensation enhancements, perquisites, and tax reimbursements. In 
addition, the proposed table would require disclosure and 
quantification of the value of any other compensation related to the 
transaction.\102\
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    \102\ We have proposed an Instruction 3 to Item 402(t)(2) to 
provide, like Instruction 1 to Item 402(j), that in the event 
uncertainties exist as to the provision of payments and benefits, or 
the amounts involved, the issuer is required to make a reasonable 
estimate applicable to the payment or benefit and disclose material 
assumptions underlying such estimate in its disclosure. Unlike Item 
402(j), as proposed Item 402(t) would not permit the disclosure of 
an estimated range of payments.
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    However, Item 402(t) would require tabular and narrative disclosure 
only of compensation that is based on or otherwise relates to the 
transaction. As proposed, Item 402(t), like Item

[[Page 66601]]

402(j),\103\ would not require separate disclosure or quantification 
with respect to compensation disclosed in the Pension Benefits Table 
and Nonqualified Deferred Compensation Table. Item 402(t) also would 
not require disclosure or quantification of previously vested equity 
awards. Because these amounts are vested without regard to the 
transaction, we do not view them as compensation ``that is based on or 
otherwise relates to'' the transaction. Similarly, the proposed table 
would not require disclosure and quantification of compensation from 
bona fide post-transaction employment agreements to be entered into in 
connection with the merger or acquisition transaction, as we do not 
view future employment arrangements as compensation ``that is based on 
or otherwise relates to'' the transaction.\104\
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    \103\ See Instruction 3 to Item 402(j).
    \104\ Information regarding such future employment agreements is 
subject to disclosure pursuant to Item 5(a) of Schedule 14A to the 
extent that such agreements constitute a ``substantial interest'' in 
the matter to be acted upon, as well as Item 5(b)(xii).
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    Pursuant to the proposed narrative disclosure requirements,\105\ to 
implement the statutory mandate to disclose the conditions upon which 
the compensation may be paid or become payable, Item 402(t) would 
require issuers to describe any material conditions or obligations 
applicable to the receipt of payment, including but not limited to non-
compete, non-solicitation, non-disparagement or confidentiality 
agreements, their duration, and provisions regarding waiver or 
breach.\106\ We have also proposed a requirement to provide a 
description of the specific circumstances that would trigger 
payment,\107\ whether the payments would or could be lump sum, or 
annual, and their duration, and by whom the payments would be 
provided,\108\ and any material factors regarding each agreement.\109\ 
These proposed narrative items are modeled on the narrative disclosure 
currently required with respect to termination and change-in-control 
agreements.\110\ An issuer seeking to satisfy the exception from the 
separate merger proxy shareholder vote under Section 14A(b)(2) and Rule 
14a-21(c) by including Item 402(t) disclosure in an annual meeting 
proxy statement soliciting the shareholder vote required by Section 
14A(a)(1) and Rule 14a-21(a) \111\ would be able to satisfy Item 402(j) 
disclosure requirements with respect to a change-in-control of the 
issuer by providing the disclosure required by Item 402(t).\112\ The 
issuer would, however, still be obligated to include in an annual 
meeting proxy statement disclosure in accordance with Item 402(j) about 
payments that may be made to named executive officers upon termination 
of employment.
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    \105\ Proposed Item 402(t)(3) of Regulation S-K.
    \106\ Proposed Item 402(t)(3)(iii) of Regulation S-K.
    \107\ Proposed Item 402(t)(3)(i) of Regulation S-K.
    \108\ Proposed Item 402(t)(3)(ii) of Regulation S-K.
    \109\ Proposed Item 402(t)(3) of Regulation S-K. Such material 
factors would include, for example, provisions regarding 
modifications of outstanding options to extend the vesting period or 
the post-termination exercise period, or to lower the exercise 
price.
    \110\ Item 402(j) of Regulation S-K.
    \111\ This exception is discussed in Section II.D.4 below.
    \112\ We note also that one example of material information to 
be addressed in CD&A is the basis for selecting particular 
termination or change-in-control events as triggering payment (e.g., 
the rationale for providing a single trigger for payment in the 
event of a change-in-control). See Item 402(b)(2)(xi) of Regulation 
S-K.
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Request for Comment
    (32) Should Item 402(t) disclosure be required only in the context 
of an extraordinary transaction, as proposed? Should we extend the Item 
402(t) disclosure requirement to annual meeting proxy statements 
generally, or in annual meeting proxy statements in which the 
shareholder advisory vote required by Section 14A(a)(1) is solicited? 
Would this disclosure be useful in annual meeting proxy statements in 
the absence of an actual transaction, or are the existing compensation 
disclosure requirements applicable to annual meeting proxy statements 
sufficient? Should we amend Item 402(j) to cover the matters required 
by Section 14A(b)(1) that are not otherwise required by that Item, 
rather than adopt proposed Item 402(t)?
    (33) As proposed, Item 402(t) would require disclosure of all 
golden parachute compensation relating to the merger among the target 
and acquiring companies and the named executive officers of each in 
order to cover the full scope of golden parachute compensation 
applicable to the transaction. Would it be potentially confusing to 
require disclosure under Item 402(t) that relates to golden parachute 
compensation of a broader group of individuals than required by Section 
14A(b)(1)?
    (34) Does proposed Item 402(t) tabular disclosure capture ``any 
type of compensation (whether present, deferred, or contingent) that is 
based on or otherwise relates to'' the transaction? Will proposed Item 
402(t) elicit disclosure of all elements of golden parachute 
compensation that may be paid or become payable and the aggregate total 
thereof ``in a clear and simple form''? If not, what specific revisions 
are necessary to accomplish these objectives?
    (35) Should we also require tabular disclosure of previously vested 
equity and pension benefits and require the total amount to include 
those amounts? For example, should the value of vested pension and 
nonqualified deferred compensation be presented so that shareholders 
may easily compare that value to the value of any enhancements 
attributable to the change-in-control transaction? Similarly, should 
the value of previously vested restricted stock and the in-the-money 
value of previously vested options be presented so that shareholders 
can compare these amounts to the value of awards for which vesting 
would be accelerated? Would inclusion of these amounts in the total 
overstate the amount of compensation payable as a result of the 
transaction?
    (36) In the table, will the proposed footnote identification of 
amounts of single-trigger and double-trigger compensation elements 
effectively highlight amounts payable on each basis? If not, should 
these elements be highlighted by disclosing them in separate columns, 
or by some other means? Is this information useful to investors?
    (37) Are there any elements captured by the ``Other'' column that 
should be presented separately, or in a different manner? If so, please 
explain why and how.
    (38) Should employment agreements that named executive officers of 
the target issuer enter into with the acquiring issuer for services to 
be performed in the future be excluded from the table, as proposed? Are 
such agreements used to induce target executives to support the 
transaction? Should such employment agreements instead be required to 
be quantified and included in the table? If such agreements should be 
quantified, should they be quantified separately, such as in a separate 
table, or is there a better way to present such agreements? If 
quantification is appropriate, should we specify how employment 
agreements should be quantified, for example by requiring a reasonable 
estimate applicable to the payment or benefit and disclosure of 
material assumptions underlying such estimates, or a valuation based on 
projected first year annual compensation, or average annual basis, or a 
present value for this compensation? If so, please explain.
    (39) In proxy statements soliciting shareholder approval of a 
merger or similar transaction, we are proposing

[[Page 66602]]

that the tabular quantification of dollar amounts based on issuer stock 
price be based on the closing price per share as of the latest 
practicable date. Is this measurement date appropriate? Would a 
different measurement, such as the average closing price over the first 
five business days following the public announcement of the 
transaction, more accurately reflect the amounts payable to the named 
executive officers in connection with the transaction? If so, explain 
why.
    (40) The proposed narrative disclosure would explain by whom 
payments would be provided. Are any additional instructions needed to 
provide clarity with respect to the tabular disclosure in circumstances 
where separate payments would be made by the target issuer and the 
acquiring issuer? Should a separate table be required where golden 
parachute compensation is payable to named executive officers of the 
acquiring issuer, as well as named executive officers of the target 
issuer?
    (41) Will the proposed narrative disclosure adequately describe the 
conditions upon which the golden parachute compensation may be paid or 
become payable to or on behalf of each named executive officer? What, 
if any, additional disclosure is needed to accomplish this objective? 
What, if any, disclosure that we have proposed to require is not 
necessary to accomplish this objective? Explain why.
    (42) Are there other items of narrative disclosure that would be 
useful for investors? For example, should we require issuers to 
describe the basis for selecting each form of payment and to describe 
why it chose the various forms of compensation? \113\
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    \113\ See Item 402(b)(2)(xi) of Regulation S-K.
---------------------------------------------------------------------------

    (43) As proposed, many of the table's columns would report more 
than one element of golden parachute compensation, with footnote 
quantification of the individual elements. Would it facilitate investor 
understanding to present in separate columns any of those individual 
elements, such as the different components of cash severance? If so, 
explain which elements and why. Would additional columns make the table 
too complex?
    (44) As proposed, issuers would not have to provide Item 402(t) 
information with respect to individuals who would have been among the 
most highly compensated executive officers but for the fact that they 
were not serving as an executive officer at the end of the last 
completed fiscal year.\114\ Should Item 402(t) information be required 
if such individuals remain employed by the issuer at the time of the 
proxy solicitation? If so, explain why. Also, as proposed, issuers 
would have to provide Item 402(t) information with respect to all 
individuals who served as the principal executive officer or principal 
financial officer of the issuer during the last completed fiscal year 
or who were among the issuer's other most highly compensated executive 
officers at the end of that year,\115\ even if such persons are no 
longer employed by the issuer at the time of the proxy solicitation. 
Would Item 402(t) disclosure with respect to such an individual serve a 
useful purpose or should we exclude former employees from the 
disclosure requirement?
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    \114\ Item 402(a)(3)(iv) provides that up to two such 
individuals are named executive officers for purposes of this item's 
general disclosure requirements.
    \115\ Such persons are named executive officers as defined in 
Item 402(a)(3)(i)-(iii).
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3. Amendments to Schedule 14A, Schedule 14C, Schedule 14D-9, Schedule 
13E-3, and Item 1011 of Regulation M-A
    We are proposing amendments to Items 5(a) and (b) of Schedule 14A 
under the Exchange Act, as well as conforming changes to Item 3 of 
Schedule 14C, Item 1011(b) of Regulation M-A, Item 15 of Schedule 13E-3 
and Item 8 of Schedule 14D-9. These amendments would be consistent with 
the goals of Section 14A(b)(1) by requiring that the disclosure set 
forth in Item 402(t) of Regulation S-K be included in any proxy or 
consent solicitation material seeking shareholder approval of an 
acquisition, merger, consolidation, or proposed sale or other 
distribution of all or substantially all the assets of the issuer. Our 
amendments would require such disclosure not only in a proxy or consent 
solicitation relating to such a transaction, as required by the Act, 
but also in the following:
     Information statements filed pursuant to Regulation 14C; 
\116\
---------------------------------------------------------------------------

    \116\ See proposed Item 3 of Schedule 14C.
---------------------------------------------------------------------------

     Proxy or consent solicitations that do not contain merger 
proposals but require disclosure of information under Item 14 of 
Schedule 14A pursuant to Note A of Schedule 14A; \117\
---------------------------------------------------------------------------

    \117\ For example, acquiring companies may solicit proxies to 
approve the issuance of shares or a reverse stock split in order to 
conduct a merger transaction; such proxy statements would be 
required to include disclosure of information required under Item 14 
of Schedule 14A pursuant to Note A of Schedule 14A. See proposed 
Item 5(a)(5) and Item 5(b)(3) of Schedule 14A.
---------------------------------------------------------------------------

     Registration statements on Forms S-4 and F-4 containing 
disclosure relating to mergers and similar transactions; \118\
---------------------------------------------------------------------------

    \118\ In addition to the proposed disclosure requirements on 
golden parachute arrangements in registration statements on Forms S-
4 and F-4, companies will continue to be subject to the requirement 
to file such agreements and understandings as exhibits to these 
registration statements as required by Item 601(b)(10) of Regulation 
S-K [17 CFR 229.601(b)(10)].
---------------------------------------------------------------------------

     Going private transactions on Schedule 13E-3; \119\ and
---------------------------------------------------------------------------

    \119\ See proposed Item 15 of Schedule 13E-3.
---------------------------------------------------------------------------

     Third-party tender offers on Schedule TO \120\ and 
Schedule 14D-9 \121\ solicitation/recommendation statements.
---------------------------------------------------------------------------

    \120\ See proposed Item 1011(b) of Regulation M-A.
    \121\ See proposed Item 8 of Schedule 14D-9.
---------------------------------------------------------------------------

    Issuers may structure transactions in a manner that avoids 
implicating Section 14(a) of the Exchange Act (e.g., tender offers and 
certain Rule 13e-3 going-private transactions), while still effectively 
seeking the consent of shareholders with respect to their investment 
decision (e.g., whether or not to tender their shares or approve a 
going-private transaction, in instances where such going-private 
transactions are not subject to Regulation 14A). For these reasons, we 
believe requiring Item 402(t) disclosure in all such transactions 
furthers the purposes of Section 14A(b) of the Exchange Act and would 
minimize the regulatory disparity that might otherwise result from 
treating such transactions differently. Thus, our proposed amendments 
would require the Item 402(t) disclosure in whatever form the 
transaction takes, whether a merger, acquisition, a Rule 13e-3 going 
private transaction or a tender offer. The vote required by Section 
14A(b)(2), however, would not be extended to transactions beyond those 
specified in that section.
    We are also proposing to include language in Item 1011(b) of 
Regulation M-A that would require the bidder \122\ in a third-party 
tender offer to provide information in its Schedule TO about a target's 
golden parachute arrangements but only to the extent the bidder has 
made a reasonable inquiry about the golden parachute arrangements and 
has knowledge of such arrangements, since certain bidders in non-
negotiated transactions may not have access to such information. In 
addition, we are proposing an exception to the disclosure requirement 
under Item 1011(b) for both bidders and targets in third-party tender 
offers and filing persons in Rule 13e-3 going-private transactions 
where the

[[Page 66603]]

target or subject company is a foreign private issuer.\123\ We are also 
proposing an exception to the disclosure obligation under Item 402(t) 
with respect to agreements and understandings with senior management of 
foreign private issuers where the target or acquirer is a foreign 
private issuer.\124\ We believe such accommodations are appropriate in 
light of our long-standing accommodation to foreign private issuers 
regarding compensation disclosure.\125\
---------------------------------------------------------------------------

    \122\ ``Bidder'' is defined in Rule 14d-1(g)(2) [17 CFR 240.14d-
1(g)(2)].
    \123\ ``Foreign private issuer'' is defined in Rule 3b-4(c) [17 
CFR 240.3b-4(c)].
    \124\ Proposed Instruction 2 to Item 402(t).
    \125\ See, e.g., Item 402(a)(1) of Regulation S-K, and Items 6.B 
and 6.E.2 of Form 20-F [17 CFR 249.220f].
---------------------------------------------------------------------------

Request for Comment
    (45) Should we require Item 402(t) disclosure, as proposed, in 
transactions not specifically referenced in the Act? Is this disclosure 
necessary to minimize potential regulatory arbitrage? If not, please 
explain why not.
    (46) Are there any impediments to providing this disclosure in such 
transactions? If so, please explain.
    (47) Are the proposed exceptions from the Item 402(t) disclosure 
requirements for bidders and target companies in third-party tender 
offers and filing persons in Rule 13e-3 going-private transactions 
where the target or subject company is a foreign private issuer 
appropriate? Is the proposed exception from the Item 402(t) disclosure 
obligation with respect to agreements or understandings with senior 
management of foreign private issuers appropriate? If not, why not? Are 
any other exceptions for transactions involving foreign private issuers 
necessary?
4. Proposed Rule 14a-21(c)
    Section 951 of the Act also amends the Exchange Act to add Section 
14A(b)(2), which generally requires a separate shareholder advisory 
vote on golden parachute compensation arrangements required to be 
disclosed under Section 14A(b)(1) in connection with mergers and 
similar transactions. A separate shareholder advisory vote would not be 
required on golden parachute compensation if disclosure of that 
compensation had been included in the executive compensation disclosure 
that was subject to a prior advisory vote of shareholders under Section 
14A(a)(1) of the Exchange Act and Rule 14a-21(a).
    As discussed above,\126\ we are proposing new Item 402(t) of 
Regulation S-K to implement the compensation disclosure requirements 
set forth in new Section 14A(b)(1) of the Exchange Act by requiring 
disclosure of the full scope of golden parachute compensation 
applicable to the transaction. Consistent with Section 951 of the Act, 
whether or not Section 14A(b)(2) also requires the issuer to solicit 
shareholder approval of golden parachute compensation arrangements, 
disclosure prescribed by proposed Item 402(t) would be required in any 
proxy or consent solicitation for a meeting at which shareholders are 
asked to approve an acquisition, merger, consolidation or sale of the 
issuer's assets.
---------------------------------------------------------------------------

    \126\ See Section II.D.2 above.
---------------------------------------------------------------------------

    Under proposed Rule 14a-21(c), issuers would be required to provide 
a separate shareholder advisory vote in proxy statements for meetings 
at which shareholders are asked to approve an acquisition, merger, 
consolidation, or proposed sale or other disposition of all or 
substantially all assets, consistent with Section 14A(b)(2). This 
advisory vote would be required only with respect to the golden 
parachute agreements or understandings required to be disclosed by 
Section 14A(b)(1), as disclosed pursuant to proposed Item 402(t) of 
Regulation S-K. Section 14A(b)(1) requires disclosure of any agreements 
or understandings between the soliciting person and any named executive 
officer of the issuer or any named executive officers of the acquiring 
issuer, if the soliciting person is not the acquiring issuer. When a 
target issuer conducts a proxy or consent solicitation to approve a 
merger or similar transaction, golden parachute compensation agreements 
or understandings between the acquiring issuer and the named executive 
officers of the target issuer are not within the scope of disclosure 
required by Section 14A(b)(1), and thus a shareholder vote to approve 
arrangements between the soliciting target issuer's named executive 
officers and the acquiring issuer is not required by Exchange Act 
Section 14A(b)(2). Consequently, we have proposed Rule 14a-21(c) to 
require a shareholder advisory vote only on the golden parachute 
compensation agreements or understandings for which Section 14A(b)(1) 
requires disclosure and Section 14A(b)(2) requires a shareholder vote.
    As described above,\127\ however, because compensation arrangements 
may involve agreements or understandings between the acquiring issuer 
and the named executive officers of the target issuer, proposed Item 
402(t) of Regulation S-K would require disclosure of compensation 
pursuant to these arrangements, as well as the arrangements for which 
Section 14A(b)(1) requires disclosure, in order to require disclosure 
of the full scope of golden parachute compensation applicable to the 
transaction. In this regard, Item 402(t) of Regulation S-K would 
require disclosure of a broader group of agreements and understandings 
than required by Exchange Act Section 14A(b)(1), but proposed Rule 14a-
21(c) would require a separate shareholder advisory vote only on the 
agreements and understandings described in Exchange Act Section 
14A(b)(1). Even though agreements and understandings between the 
acquiring issuer and the named executive officers of the target issuer 
would not be subject to the Rule 14a-21(c) vote unless the acquiring 
issuer is soliciting proxies to approve the merger, we are proposing to 
require this disclosure because we believe that shareholders may find 
disclosure about these arrangements informative to their voting 
decisions regarding not only the Rule 14a-21(c) advisory vote, but also 
the transaction itself. Moreover, some issuers may choose to subject 
these arrangements to the shareholder advisory vote voluntarily because 
of investor interest in the full scope of golden parachute compensation 
applicable to the transaction or for other reasons.
---------------------------------------------------------------------------

    \127\ See Section II.D.2 above.
---------------------------------------------------------------------------

    Our proposed rule would not require issuers to use any specific 
language or form of resolution to be voted on by shareholders. This 
shareholder vote would not be binding on the issuer or its board of 
directors. In addition, consistent with Section 14A(b)(2), issuers 
would not be required to include in the merger proxy a separate 
shareholder vote on the golden parachute compensation disclosed under 
Item 402(t) of Regulation S-K if Item 402(t) disclosure of that 
compensation had been included in the executive compensation disclosure 
that was subject to a prior vote of shareholders under Section 
14A(a)(1) of the Exchange Act and Rule 14a-21(a). In this regard, we 
note that Section 14A(b)(2) requires only that the golden parachute 
arrangements have been subject to a prior shareholder vote under 
Section 14A(a)(1); such arrangements need not have been approved by 
shareholders.
    For issuers to take advantage of this exception, however, the 
executive compensation disclosure subject to the prior shareholder vote 
would need to have included Item 402(t) disclosure of the same golden 
parachute arrangements. Even if the annual meeting proxy statement 
provides some disclosure with respect to golden

[[Page 66604]]

parachute arrangements,\128\ the annual meeting proxy statement would 
need to include the disclosure required by Item 402(t) in order for the 
annual meeting shareholder vote under Section 14A(a)(1) and Rule 14a-
21(a) to satisfy the exception from the merger proxy separate 
shareholder vote under Section 14A(b)(2) and Rule 14a-21(c). 
Consequently, we would expect that some issuers may voluntarily include 
Item 402(t) disclosure with their other executive compensation 
disclosure in annual meeting proxy statements soliciting the 
shareholder vote required by Section 14A(a)(1) and Rule 14-21(a) so 
that this exception would be available to the issuer for a potential 
subsequent merger or acquisition transaction. We also expect that some 
issuers may choose to include the new disclosure for other reasons, 
such as investor interest in the information.
---------------------------------------------------------------------------

    \128\ See CD&A and Item 402(j) of Regulation S-K, and for 
smaller reporting companies see Item 402(q)(2) of Regulation S-K for 
the disclosure requirements applicable to annual meeting proxy 
statements.
---------------------------------------------------------------------------

    The exception would be available only to the extent the same golden 
parachute arrangements previously subject to an annual meeting 
shareholder vote remain in effect, and the terms of those arrangements 
have not been modified subsequent to the Section 14A(a)(1) shareholder 
vote. New golden parachute arrangements, and any revisions to golden 
parachute arrangements that were subject to a prior Section 14A(a)(1) 
shareholder vote would be subject to the separate merger proxy 
shareholder vote requirement of Section 14A(b)(2) and Rule 14a-
21(c).\129\ Because a shareholder vote would already have been obtained 
on portions of the arrangements, however, we are proposing that only 
the new arrangements and revised terms of the arrangements previously 
subject to a Section 14A(a)(1) shareholder vote would be subject to the 
merger proxy separate shareholder vote under Section 14A(b)(2) and Rule 
14a-21(c).
---------------------------------------------------------------------------

    \129\ As proposed, if the disclosure pursuant to Item 402(t) has 
been updated to change only the value of the items in the Golden 
Parachute Compensation Table to reflect price movements in the 
issuer's securities, no new shareholder advisory vote under Section 
14A(b)(1) would be required. However, if any terms of such 
agreements have changed subsequent to the prior Section 14A(a)(1) 
shareholder vote, a separate vote under Section 14A(b)(2) and Rule 
14a-21(c) would be required. For example, we would view any change 
that would result in an IRC Section 280G tax gross-up becoming 
payable as a change in terms triggering such a separate vote.
---------------------------------------------------------------------------

    Under our proposal, issuers providing for a shareholder vote on new 
arrangements or revised terms would provide two separate tables under 
Item 402(t) of Regulation S-K in merger proxy statements.\130\ One 
table would disclose all golden parachute compensation, including both 
arrangements and amounts previously disclosed and subject to a say-on-
pay vote under Section 14A(a)(1) and Rule 14a-21(a) and the new 
arrangements or revised terms. The second table would disclose only the 
new arrangements or revised terms subject to the vote, so that 
shareholders can clearly see what is subject to the shareholder vote 
under Section 14A(b)(2) and Rule 14a-21(c). Similarly, in cases where 
Item 402(t) requires disclosure of arrangements between an acquiring 
company and the named executive officers of the soliciting target 
company, issuers should clarify whether these agreements are included 
in the shareholder advisory vote by providing a separate table of all 
agreements and understandings subject to the shareholder advisory vote 
required by Section 14A(b)(2) and Rule 14a-21(c), if different from the 
full scope of golden parachute compensation subject to Item 402(t) 
disclosure.\131\
---------------------------------------------------------------------------

    \130\ See proposed Instruction 6 to Item 402(t)(2) of Regulation 
S-K.
    \131\ Proposed Instruction 7 to Item 402(t)(2). As discussed 
above, such agreements are not required to be subject to the 
proposed Rule 14a-21(c) shareholder advisory vote, but issuers may 
voluntarily subject them to such a vote.
---------------------------------------------------------------------------

Request for Comment
    (48) If golden parachute arrangements have been modified or amended 
subsequent to being subject to the annual shareholder vote under Rule 
14a-21(a), should we require the merger proxy separate shareholder vote 
to cover the entire set of golden parachute arrangements or should we, 
as proposed, require a separate vote only as to the changes to such 
arrangements? For example, if a new arrangement is added, would the 
Section 14A(b)(2) shareholder advisory vote be meaningful if 
shareholders do not have the opportunity to express their approval or 
disapproval of the full complement of compensation that would be 
payable?
    (49) Should we exempt certain changes to golden parachute 
arrangements that have been altered or amended subsequent to their 
being subject to the annual shareholder vote under Rule 14a-21(a)? For 
example, should we require a separate vote under Rule 14a-21(c) if the 
only change is the addition of a new named executive officer not 
included in the prior disclosure or a change in terms that would reduce 
the amounts payable? Should we provide an exemption for golden 
parachute arrangements previously subject to an annual shareholder vote 
if the only change is the subsequent grant, in the ordinary course, of 
additional awards under an employee benefit plan, such as stock options 
or restricted stock, that are subject to the same acceleration terms 
that applied to those already covered by the previous vote? For 
example, if subsequent to the previous vote, additional equity awards 
are granted in the ordinary course pursuant to a plan, such as an 
annual option grant, and those awards are subject to acceleration in 
the event of a change in control on the same terms as earlier awards 
that were subject to the previous vote, should we exempt those 
subsequent awards? Should any other types of changes to golden 
parachute compensation arrangements be so exempted?
    (50) Where an issuer voluntarily includes Item 402(t) disclosure in 
an annual meeting proxy statement to satisfy the exception from the 
Section 14A(b)(2) shareholder vote, should all Item 402(t) disclosure 
be required to be presented in one section of the document, without 
cross references, to facilitate shareholder understanding? If not, why 
not? Does proposed Instruction 6 to Item 402(t)(2) assure certainty and 
predictability regarding the availability of this exception? If not, 
what additional instructions are needed?
    (51) Section 14A(b)(2) does not specify which shares are entitled 
to vote in the shareholder vote to approve the agreements or 
understandings and compensation specified in Section 14A(b)(1), nor 
does this section direct the Commission to adopt rules addressing this 
point. We are not proposing to address this question in our rules, but 
should our rules implementing Section 14A(b)(2) address this question? 
If so, how, and on what basis?

E. Treatment of Smaller Companies

    Section 951 of the Act establishes a new Section 14A(e) of the 
Exchange Act, which provides that we may, by rule or order, exempt an 
issuer or class of issuers from the requirements of Sections 14A(a) and 
(b). In determining whether to make an exemption under this subsection, 
we are directed to take into account, among other considerations, 
whether the requirements of Sections 14A(a) and 14A(b) 
disproportionately burden small issuers.
    Our proposed rules would not exempt small issuers from the 
requirements of Sections 14A(a) and 14A(b). We believe the shareholder 
advisory votes and

[[Page 66605]]

additional disclosure required by Section 14A and our proposed rules 
would be significant for investors in all issuers, including smaller 
reporting companies.\132\ As a result, the proposed rules discussed 
above will all apply to smaller reporting companies, with the exception 
of our proposed amendment to Item 402(b) of Regulation S-K, as smaller 
reporting companies are not required to provide a CD&A. We do not 
believe that smaller reporting companies should be exempt from the say-
on-pay vote, frequency of say-on-pay votes and golden parachute 
disclosure and vote because we believe investors have the same interest 
in voting on the compensation of smaller reporting companies and in 
clear and simple disclosure of golden parachute compensation in 
connection with mergers and similar transactions as they have for other 
issuers.
---------------------------------------------------------------------------

    \132\ ``Smaller reporting company'' is defined in Rule 12b-2 
under the Exchange Act.
---------------------------------------------------------------------------

    We have crafted our proposals to minimize the costs for smaller 
reporting companies, while providing shareholders the opportunity to 
express their views on the companies' compensation arrangements. For 
example, our proposed amendments would provide the shareholders of 
smaller reporting companies with the same voting rights with respect to 
executive compensation as shareholders of other companies subject to 
the proxy rules. We are not currently aware that Section 14A and our 
proposed rules would unduly burden smaller reporting companies. Our 
proposed amendments, for example, would not alter the existing scaled 
disclosure requirements set forth in Item 402 of Regulation S-K for 
smaller reporting companies, which recognize that the compensation 
arrangements of smaller reporting companies typically are less complex 
than those of other public companies.\133\ Under our proposed rules, we 
would not alter the provision in our rules that smaller reporting 
companies are not required to provide a CD&A.
---------------------------------------------------------------------------

    \133\ See Executive Compensation and Related Person Disclosure, 
Release No. 33-8732A (Aug. 29, 2006) [71 FR 53158] (hereinafter, the 
``2006 Executive Compensation Release'') at Section II.D.1. The 
scaled compensation disclosure requirements for smaller reporting 
companies are set forth in Item 402(1) [17 CFR 229.402(l)] through 
(r) [17 CFR 229.402(r)] of Regulation S-K.
---------------------------------------------------------------------------

    Our proposed rules would, however, require quantification of golden 
parachute arrangements in merger proxies. Smaller reporting companies 
are not required to provide this quantification under current Item 
402(q) in annual meeting proxy statements, and would not be required to 
do so under our proposals unless they seek to qualify for the exception 
for a shareholder advisory vote on golden parachute compensation in a 
later merger transaction. Even though our proposed rules would impose 
additional disclosure requirements relating to the shareholder advisory 
votes required by Section 14A, we preliminarily do not believe our 
proposed rules would impose a significant additional cost or 
disproportionate burden upon smaller reporting companies. As noted 
above, smaller reporting companies tend to have less complex 
compensation arrangements \134\ so the proposed additional disclosures 
should not add significantly to their disclosure burden. As a result, 
we do not believe our proposed rules would place a disproportionate 
burden on smaller reporting companies.
---------------------------------------------------------------------------

    \134\ In adopting executive compensation disclosure requirements 
applicable to smaller reporting companies, we have recognized that 
the executive compensation arrangements of these issuers typically 
are less complex than those of other public companies. See 2006 
Executive Compensation Release, supra note 133, at Section II.D.1.
---------------------------------------------------------------------------

Request for Comment
    (52) Should we fully, partially, or conditionally exempt smaller 
reporting companies or some other category of smaller companies from 
some or all of the requirements of Section 14A? Are the provisions of 
Section 14A unduly burdensome on small companies and if so, how are 
they unduly burdensome?
    (53) Should we fully, partially, or conditionally exempt smaller 
reporting companies or some other category of smaller companies from 
any or all of our proposed rules? If so, which ones? Are any of our 
proposed rules unduly burdensome to smaller reporting companies and if 
so, how are they unduly burdensome?
    (54) Are the golden parachute arrangements of smaller reporting 
companies relatively simple and straightforward compared to those of 
larger issuers? Would the disclosure of such arrangements required by 
proposed Item 402(t) impose an undue burden on smaller reporting 
companies?
    (55) Should we clarify in an instruction to Rule 14a-21, as 
proposed, that smaller reporting companies are not required to include 
a CD&A in their proxy statements in order to comply with our proposed 
amendments?
    (56) Are there any other steps that we should take to reduce the 
burden on smaller reporting companies?

F. Transition Matters

    As noted above in Section I, Section 14A(a)(3) requires that both 
the initial shareholder vote on executive compensation and the initial 
vote on the frequency of votes on executive compensation be included in 
proxy statements relating to an issuer's first annual or other meeting 
of the shareholders occurring on or after January 21, 2011. Because 
Section 14A(a) applies to shareholder meetings taking place on or after 
January 21, 2011, any proxy statements, whether in preliminary or 
definitive form, even if filed prior to this date, for meetings taking 
place on or after January 21, 2011, must include the separate 
resolutions for shareholders to approve executive compensation and the 
frequency of say-on-pay votes required by Section 14A(a) without regard 
to whether the Commission has adopted rules to implement Section 14A(a) 
by that time. Therefore, in order to facilitate compliance with the new 
statute, we are addressing certain first year transition issues.
    Rule 14a-6 currently requires the filing of a preliminary proxy 
statement at least ten days before the proxy is sent or mailed to 
shareholders unless the meeting relates only to the matters specified 
by Rule 14a-6(a). Until we take final action to implement Exchange Act 
Section 14A, we will not object if issuers do not file proxy material 
in preliminary form if the only matters that would require a filing in 
preliminary form are the say-on-pay vote and frequency of say-on-pay 
vote required by Section 14A(a).
    Rule 14a-4 under the Exchange Act currently provides that persons 
solicited are to be afforded the choice between approval or disapproval 
of, or abstention with respect to, each matter to be voted on, other 
than elections of directors. Exchange Act Section 14A(a)(2) requires a 
``separate resolution subject to shareholder vote to determine whether 
[the say-on-pay] votes * * * will occur every 1, 2, or 3 years.'' \135\ 
Until we take final action to implement Exchange Act Section 14A, we 
will not object if the form of proxy for a shareholder vote on the 
frequency of say-on-pay votes provides means whereby the person 
solicited is afforded an opportunity to specify by boxes a choice among 
1, 2 or 3 years, or abstain. In addition, we understand that some proxy 
service providers may have difficulty in the short term in programming 
their systems to enable shareholders to vote among four choices and 
that their systems are currently set up to register at most three 
votes--for, against, abstain. If proxy service providers are not able 
to reprogram their

[[Page 66606]]

systems to enable shareholders to vote among four choices in time for 
the shareholder votes required by Section 14A(a)(2), until we take 
final action to implement Exchange Act Section 14A, we will not object 
if the form of proxy for a shareholder vote on the frequency of say-on-
pay votes provides means whereby the person solicited is afforded an 
opportunity to specify by boxes a choice among 1, 2 or 3 years, and 
proxies are not voted on the frequency of say-on-pay votes matter in 
the event the person solicited does not select a choice among 1, 2 or 3 
years.\136\
---------------------------------------------------------------------------

    \135\ Exchange Act Section 14A(a)(2).
    \136\ See Shareholder Communications, Shareholder Participation 
in the Corporate Electoral Process and Corporate Governance 
Generally, Release No. 34-16356 (Nov. 21, 1979) [44 FR 68770].
---------------------------------------------------------------------------

    Finally, issuers with outstanding indebtedness under the TARP are 
already required to conduct an annual shareholder advisory vote on 
executive compensation until the issuer has repaid all outstanding 
indebtedness under the TARP. Because such issuers are subject to an 
annual requirement to provide a say-on-pay vote, a requirement to 
provide a vote on the frequency of such votes would impose unnecessary 
burdens on issuers and shareholders. Until we take final action to 
implement Exchange Act Section 14A, we will not object if an issuer 
with outstanding indebtedness under the TARP does not include a 
resolution for a shareholder advisory vote on the frequency of say-on-
pay votes in its proxy statement for its annual meeting, provided it 
fully complies with its say-on-pay voting obligations under EESA 
Section 111(e).

G. General Request for Comment

    We request and encourage any interested person to submit comments 
on any aspect of our proposals, other matters that might have an impact 
on the amendments, and any suggestions for additional changes. With 
respect to any comments, we note that they are of greatest assistance 
to our rulemaking initiative if accompanied by supporting data and 
analysis of the issues addressed in those comments and by alternatives 
to our proposals where appropriate.

III. Paperwork Reduction Act

A. Background

    The proposed amendments contain ``collection of information'' 
requirements within the meaning of the Paperwork Reduction Act of 1995 
(``PRA'').\137\ We are submitting the proposed amendments to the Office 
of Management and Budget (``OMB'') for review in accordance with the 
PRA.\138\ The title for the collection of information is:
---------------------------------------------------------------------------

    \137\ 44 U.S.C. 3501 et seq.
    \138\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------

    (1) ``Regulation 14A and Schedule 14A'' (OMB Control No. 3235-
0059);
    (2) ``Regulation 14C and Schedule 14C'' (OMB Control No. 3235-
0057);
    (3) ``Form 10-K'' (OMB Control No. 3235-0063);
    (4) ``Form 10-Q'' (OMB Control No. 3235-0070);
    (5) ``Form 10'' (OMB Control No. 3235-0064);
    (6) ``Regulation S-K'' (OMB Control No. 3235-0071); \139\
---------------------------------------------------------------------------

    \139\ The paperwork burden from Regulation S-K is imposed 
through the forms that are subject to the disclosures in Regulation 
S-K and is reflected in the analysis of those forms. To avoid a 
Paperwork Reduction Act inventory reflecting duplicative burdens, 
for administrative convenience we estimate the burdens imposed by 
Regulation S-K to be a total of one hour.
---------------------------------------------------------------------------

    (7) ``Schedule 14D-9'' (OMB Control No. 3235-0102);
    (8) ``Schedule 13E-3'' (OMB Control No. 3235-0007);
    (9) ``Schedule TO'' (OMB Control No. 3235-0515);
    (10) ``Form S-1'' (OMB Control No. 3235-0065);
    (11) ``Form S-4'' (OMB Control No. 3235-0324);
    (12) ``Form S-11'' (OMB Control No. 3235-0067);
    (13) ``Form F-4'' (OMB Control No. 3235-0325); and
    (14) ``Form N-2'' (OMB Control No. 3235-0026).
    The regulations, schedules, and forms were adopted under the 
Securities Act and the Exchange Act, except for Form N-2, which we 
adopted pursuant to the Securities Act and the Investment Company Act. 
The regulations, forms, and schedules set forth the disclosure 
requirements for periodic reports, registration statements and proxy 
and information statements filed by companies to help shareholders make 
informed voting decisions. The hours and costs associated with 
preparing, filing and sending the form or schedule constitute reporting 
and cost burdens imposed by each collection of information. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.
    As discussed in more detail above, we are proposing new Rule 14a-21 
under the Exchange Act and new Item 24 of Schedule 14A. Proposed Rule 
14a-21 would implement the requirements of Section 14A of the Exchange 
Act to provide separate shareholder advisory votes on executive 
compensation, the frequency of shareholder votes on executive 
compensation, and, in connection with merger and similar transactions, 
golden parachute compensation arrangements. New Item 24 of Schedule 14A 
would require disclosure in proxy statements with respect to each of 
these shareholder votes. New Rule 14a-21 and new Item 24 of Schedule 
14A would increase existing disclosure burdens for proxy statements by 
requiring:
     New disclosure about the requirement to provide separate 
shareholder votes on executive compensation, the frequency of 
shareholder votes on executive compensation and golden parachute 
compensation arrangements in connection with merger transactions; and
     New disclosure of the general effect of the shareholder 
advisory votes, such as whether such votes are non-binding.
    As discussed in more detail above, we are also proposing amendments 
to Item 402(b) of Regulation S-K. The proposed amendments to Item 
402(b) of Regulation S-K may increase existing disclosure burdens for 
proxy statements by requiring:
     New disclosure of whether, and if so, how the issuer has 
considered the results of previous shareholder votes on executive 
compensation required by Section 14A of the Exchange Act in determining 
compensation policies and decisions, and if so, how that consideration 
has affected the issuer's compensation decisions and policies.
    As discussed in more detail above, we are also proposing new Item 
402(t) of Regulation S-K and the proposed amendments to Item 1011(b) of 
Regulation M-A, Item 5 of Schedule 14A, Item 15 of Schedule 13E-3 and 
Item 8 of Schedule 14D-9. These proposed amendments would increase 
existing disclosure burdens for proxy statements, registration 
statements on Form S-4 and F-4, tender offer schedules and going 
private schedules by requiring:
     New tabular and narrative disclosure of understandings and 
agreements of named executive officers with acquiring and target 
companies in connection with merger, acquisition, tender offer and Rule 
13e-3 going-private transactions, and disclosure of the aggregate total 
of all compensation that may be paid or become payable to each named 
executive officer.
    As discussed in more detail above, we are proposing to amend Forms 
10-K and 10-Q. The proposed amendments to Form 10-K and Form 10-Q would 
increase existing disclosure burdens for

[[Page 66607]]

annual reports on Form 10-K and quarterly reports on Form 10-Q by 
requiring:
     New disclosure of the issuer's decision of how frequently 
to provide a separate shareholder vote on executive compensation in 
light of a shareholder advisory vote on the frequency of shareholder 
votes on executive compensation conducted pursuant to Section 14A(a)(2) 
of the Exchange Act.
    Together, new Rule 14a-21 and new Item 24 of Schedule 14A and the 
proposed amendments to Item 5 of Schedule 14A and the proposed 
amendments to Item 402 of Regulation S-K, Item 1011 of Regulation M-A, 
Item 15 of Schedule 13E-3 and Item 8 of Schedule 14D-9 would implement 
and supplement the requirements under Section 14A of the Exchange Act 
and also would provide additional meaningful disclosure regarding 
golden parachute arrangements and regarding issuers' consideration of 
the shareholder votes and the impact of such votes on issuers' 
compensation policies and decisions. We believe these changes may 
result in more meaningful disclosure for investors making voting or 
investment decisions.
    We are proposing an amendment to Rule 14a-4, which relates to the 
form of proxy that issuers are required to include with their proxy 
materials, to require that issuers present four choices to their 
shareholders in connection with the advisory vote on frequency. We are 
also proposing an amendment to Rule 14a-6 to add the shareholder votes 
on executive compensation and the frequency of shareholder votes on 
executive compensation required by Section 14A(a) to the list of items 
that do not trigger the filing of a preliminary proxy statement. In 
addition, we are proposing an amendment to Rule 14a-8, adding a note to 
Rule 14a-8(i)(10) to clarify the status of shareholder proposals 
relating to the approval of executive compensation or the frequency of 
shareholder votes approving executive compensation. Finally, we are 
proposing conforming amendments to Item 402(a) and Item 402(m) of 
Regulation S-K, clarifying that the disclosure required by proposed 
Item 402(t) includes information regarding group life, health, 
hospitalization, or medical reimbursement plans that do not 
discriminate in scope, terms or operation, in favor of executive 
officers or directors of the registrant and that are available 
generally to all salaried employees. Pursuant to these conforming 
amendments, issuers may continue to omit such information in connection 
with disclosure required by other portions of Item 402 of Regulation S-
K. The proposed amendments to Rule 14a-4, Rule 14a-6, Rule 14a-8 under 
the Exchange Act and Item 402(a) and Item 402(m) of Regulation S-K 
would not increase any existing disclosure burden. We believe these 
proposals, if adopted, would merely clarify existing and new statutory 
requirements or reduce burdens otherwise arising from our proposals. As 
a result, these amendments would not affect any existing disclosure 
burden.
    Compliance with the proposed amendments by affected U.S. issuers 
would be mandatory. Responses to the information collections would not 
be kept confidential and there would be no mandatory retention period 
for the information disclosed.

B. Burden and Cost Estimates Related to the Proposed Amendments

    We anticipate that the proposed disclosure amendments would 
increase the burdens and costs for companies that would be subject to 
the proposed amendments. New Section 14A of the Exchange Act, as 
created by Section 951 of the Act, has already increased the burdens 
and costs for issuers by requiring separate shareholder votes on 
executive compensation and the frequency of shareholder votes on 
executive compensation. Section 14A also requires additional disclosure 
of golden parachute arrangements in proxy solicitations to approve 
merger transactions and a separate shareholder vote to approve such 
arrangements in certain circumstances. Our proposed amendments address 
the Act's requirements in the context of disclosure under the federal 
proxy rules, Regulation S-K and related forms and schedules, thereby 
creating only an incremental increase in the burdens and costs for such 
issuers. The proposed amendments will specify how issuers are to comply 
with Section 14A of the Exchange Act and require new disclosure with 
respect to comparable transactions.
    For purposes of the PRA, we estimate the annual incremental 
paperwork burden for all companies to prepare the disclosure that would 
be required under our proposals to be approximately 25,192 hours of 
company personnel time and a cost of approximately $8,141,200 for the 
services of outside professionals. These estimates include the time and 
the cost of data gathering systems and disclosure controls and 
procedures, the time and cost of preparing and reviewing disclosure by 
in-house and outside counsel and executive officers, and the time and 
cost of filing documents and retaining records. In deriving our 
estimates, we recognize that the burdens will likely vary among 
individual companies based on a number of factors, including the size 
and complexity of their organizations, and the nature of their 
operations. We believe that some companies will experience costs in 
excess of this average in the first year of compliance with proposals 
and some companies may experience less than the average costs.
    We derived the above estimates by estimating the average number of 
hours it would take an issuer to prepare and review the proposed 
disclosure requirements. These estimates represent the average burden 
for all companies, both large and small. Our estimates have been 
adjusted to reflect the fact that some of the proposed amendments would 
be required in some but not all of the above listed documents depending 
upon the circumstances, and would not apply to all companies.
    With respect to reporting companies, the disclosure required by new 
Item 402(t) of Regulation S-K would be required in merger proxy and 
information statements, Forms S-4 and F-4, Schedule 13E-3 and certain 
tender offer documents and solicitation/recommendation statements. As 
proposed, the disclosure required by new Item 402(t) may also be 
included in annual meeting proxy statements on a voluntary basis.
    The disclosure required by our amendments to Item 402(b) of 
Regulation S-K would be required in proxy and information statements as 
well as Forms 10, 10-K, S-1, S-4, S-11, and N-2. The proposed 
amendments to CD&A would not be applicable to smaller reporting 
companies because under current CD&A reporting requirements these 
companies are not required to provide CD&A in their Commission filings. 
Based on the number of proxy filings that were received in the 2009 
fiscal year, we estimate that approximately 1,200 domestic companies 
are smaller reporting companies that have a public float of less than 
$75 million.
    Our annual burden estimates are also based on other assumptions. 
First, we assumed that the burden hours of the proposed amendments 
would be comparable to the burden hours related to similar disclosure 
requirements under current reporting requirements, such as the 
disclosure required by Item 402(j). Second, we assumed that 
substantially all of the burdens associated with the proposed 
amendments to Rule 14a-21 and Item 24 would be associated with Schedule 
14A as this would be the primary

[[Page 66608]]

disclosure document in which these items would be prepared and 
presented. In the case of our proposed amendments to Item 402(b) and 
Item 402(t) of Regulation S-K, we have assumed the burdens associated 
with the proposed amendments would be associated with various 
disclosure documents as these items will be included in a number of 
forms and statements. For each reporting company, we estimate that the 
proposed amendments would impose on average the following incremental 
burden hours:

 2 hours for the proposed amendments to CD&A
 1 hour for the proposed amendments to Item 24 of Schedule 14A
 1 hour for the proposed amendments to Form 10-K
 1 hour for the proposed amendments to Form 10-Q
 20 hours for new Item 402(t) of Regulation S-K
1. Annual Meeting Proxy Statements
    For purposes of the PRA, in the case of reporting companies, we 
estimate the annual incremental paperwork burden for proxy statements 
under the proposed amendments would be approximately 1 hour per form 
for companies that are smaller reporting companies, and 3 hours per 
form for companies that are non-accelerated filers (and not smaller 
reporting companies), accelerated filers, or large accelerated 
filers.\140\ The estimated burden is smaller for smaller reporting 
companies as such issuers are not required to include a CD&A.
---------------------------------------------------------------------------

    \140\ Our estimate for annual proxy statements is based upon an 
estimated burden over a six-year period during which the shareholder 
advisory votes required by Section 14A(a) would not occur annually. 
We used a six-year period because issuers will conduct at least two 
shareholder advisory votes on executive compensation and at least 
one shareholder advisory vote on the frequency of such votes in this 
time period. We then estimated an average annual burden based on the 
average burden over the six-year period.
---------------------------------------------------------------------------

2. Exchange Act Periodic Reports
    For purposes of the PRA, we estimate the annual incremental 
paperwork burden for Form 10-K under the proposed amendments would be 
approximately 1 hour per form.\141\ We estimate the annual incremental 
paperwork burden for Form 10-Q under the proposed amendments would be 
approximately 1 hour per form. Our estimates below also account for the 
fact that each issuer would only be required to include additional 
disclosure in either the Form 10-K or one of the quarterly Form 10-Q 
filings each year.
---------------------------------------------------------------------------

    \141\ We have assumed that the annual incremental paperwork 
burden under the proposed amendments to Item 402(b) of Regulation S-
K would be included in the annual meeting proxy statement so that 
the annual incremental paperwork burden for the Form 10-K relates 
only to the proposed amendments to Item 9A.
---------------------------------------------------------------------------

3. Securities Act Registration Statements and Exchange Act Registration 
Statements
    For purposes of the PRA, in the case of reporting companies, we 
estimate the annual incremental paperwork burden for Securities Act and 
Exchange Act registration statements under the proposed amendments 
would be approximately 2 hours per form, which represents the 
additional burden associated with our proposed amendments to CD&A. In 
making our estimates, we note that the additional burdens in CD&A would 
only apply to issuers who have conducted a prior shareholder advisory 
vote and would not apply, for example, to issuers making an initial 
filing on Form S-1 or Form S-11.
4. Merger Proxies, Tender Offer Documents and Schedule 13E-3
    For purposes of the PRA, in the case of reporting companies, we 
estimate the annual incremental paperwork burden for merger proxy 
statements, registration statements on Form S-4 and F-4 to be 21 hours 
per form, as these forms would be required to include additional 
disclosures under Item 24 of Schedule 14A and Item 402(t) of Regulation 
S-K. We estimate the annual incremental paperwork burden for merger 
information statements, tender offer documents and tender offer 
solicitation/recommendation statements and Schedules 13E-3 to be 20 
hours per form, as these forms would not be required to include 
additional disclosure under Item 24 of Schedule 14A.
    The tables below illustrate the total annual compliance burden of 
the collection of information in hours and in cost under the proposed 
amendments for annual reports; quarterly reports; proxy and information 
statements; Form 10; registration statements on Forms S-1, S-4, F-4, S-
11, and N-2; and Regulation S-K.\142\ The burden estimates were 
calculated by multiplying the estimated number of responses by the 
estimated average amount of time it would take an issuer to prepare and 
review the proposed disclosure requirements. For the Exchange Act 
reports on Form 10-K and Form 10-Q, and the proxy statements we 
estimate that 75% of the burden of preparation is carried by the 
company internally and that 25% of the burden of preparation is carried 
by outside professionals retained by the issuer at an average cost of 
$400 per hour. For the registration statements on Forms S-1, S-4, F-4, 
S-11, and N-2, and the Exchange Act registration statement on Form 10, 
we estimate that 25% of the burden of preparation is carried by the 
issuer internally and that 75% of the burden of preparation is carried 
by outside professionals retained by the issuer at an average cost of 
$400 per hour. There is no change to the estimated burden of the 
collections of information under Regulation S-K because the burdens 
that this regulation imposes are reflected in our revised estimated 
burden for the forms. The portion of the burden carried by outside 
professionals is reflected as a cost, while the portion of the burden 
carried by the issuer internally is reflected in hours.
---------------------------------------------------------------------------

    \142\ Figures in both tables have been rounded to the nearest 
whole number.

       Table 1--Incremental Paperwork Burden Under the Proposed Amendments for Annual Reports; Quarterly Reports; Proxy and Information Statements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Incremental        Total
                                                             Number of     burden hours/    incremental     75% Company         25%        Professional
                                                          responses\143\       form        burden hours                    Professional        costs
                                                                     (A)             (B)     (C)=(A)*(B)    (D)=(C)*0.75    (E)=(C)*0.25    (F)=(E)*$400
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-K \144\..............................................           1,803               1           1,803           1,352             451        $180,400
10-Q....................................................           5,409               1           5,409           4,057           1,352         540,800
Form 10 \145\...........................................               9               2              18               4              14           5,600
DEF 14A \146\...........................................           7,212  ..............  ..............  ..............  ..............  ..............
Accel. Filers...........................................           6,112               3          18,336          13,752           4,584       1,833,600
SRC Filers..............................................           1,100               1           1,100             825             275         110,000

[[Page 66609]]

 
DEF 14C.................................................             582  ..............  ..............  ..............  ..............  ..............
Accel. Filers...........................................             482               2             964             723             241          96,400
SRC Filers..............................................             100               0               0               0               0              $0
Reg. S-K................................................             N/A             N/A             N/A             N/A             N/A             N/A
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............          27,630          20,713  ..............       2,766,800
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 2--Incremental Paperwork Burden Under the Proposed Amendments for Registration Statements, Merger Proxy and Information Statements, Tender Offer
                                                              Documents and Schedules 13E-3
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Incremental        Total
                                                             Number of     burden hours/    incremental     25% Company         75%        Professional
                                                          responses\147\       form        burden hours                    Professional        costs
                                                                     (A)             (B)     (C)=(A)*(B)    (D)=(C)*0.25    (E)=(C)*0.75    (F)=(E)*$400
--------------------------------------------------------------------------------------------------------------------------------------------------------
Form S-1 \148\..........................................             485               2             970             243             727        $290,800
Form S-11...............................................              22               2              44              11              33          13,200
Form S-4 \149\..........................................             499              21          10,479           2,620           7,859       3,143,600
Form F-4................................................              27              21             567             142             425         170,000
DEFM 14A................................................             137              21           2,877             719           2,158         863,200
DEFM 14C \150\..........................................              14              20             280              70             210          84,000
Schedule TO-T \151\.....................................              50              20           1,000             250             750         300,000
Schedule 14D-9..........................................              77              20           1,540             385           1,155         462,000
Schedule 13E-3..........................................               5              20             100              25              75          30,000
Form N-2 \152\..........................................              29               2              58              14              44          17,600
Reg. S-K................................................             N/A             N/A             N/A             N/A             N/A             N/A
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............          17,915           4,479  ..............       5,374,400
--------------------------------------------------------------------------------------------------------------------------------------------------------

C. Request for Comment

    Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comment to:
---------------------------------------------------------------------------

    \143\ The number of responses reflected in the table equals the 
actual number of forms and schedules filed with the Commission 
during the 2009 calendar year, adjusted to reflect the estimated 
number of forms and schedules that would be required to include 
additional disclosure under our rules as proposed. As explained 
below in notes 144 through 146, we have reduced the number of 
estimated filings to reflect that the additional disclosure 
requirements as proposed would only apply to a smaller number of the 
forms filed.
    \144\ We calculated the burden hours for Forms 10-K and 10-Q 
based on the number of proxy statements filed with the Commission 
during the 2009 calendar year. We assumed that there would be an 
aggregate equal number of Forms 10-K and 10-Q to disclose the 
issuer's plans with respect to the frequency vote as the number of 
proxy statements and further assumed that 75% of issuers would 
disclose this information on Form 10-Q and 25% would disclose this 
information on Form 10-K.
    \145\ The burden allocation for Form 10 uses a 25% internal to 
75% outside professional allocation. We have reduced the number of 
estimated Form 10 filings to reflect that approximately 95% of these 
forms would not require additional disclosure, as new disclosure 
required under Item 402 as proposed would only relate to issuers in 
spin-off transactions that are disclosing compensation of public 
parent companies that have conducted a prior shareholder vote on 
executive compensation.
    \146\ The estimates for Schedule 14A and Schedule 14C are 
separated to reflect our estimate of the burden hours and costs 
related to the proposed amendments to CD&A which would be applicable 
to companies that are large accelerated filers, accelerated filers, 
and non-accelerated filers (that are not smaller reporting 
companies), but would not be applicable to smaller reporting 
companies.
    \147\ The number of responses reflected in the table equals the 
actual number of forms and schedules filed with the Commission 
during the 2009 calendar year, adjusted to reflect the estimated 
number of forms and schedules that would be required to include 
additional disclosure under our rules as proposed. As explained 
below in notes 148 through 152, we have reduced the number of 
estimated filings to reflect that the additional disclosure 
requirements as proposed would only apply to a smaller number of the 
forms filed.
    \148\ We have reduced the number of estimated Form S-1 and Form 
S-11 filings to reflect that approximately 60% of these forms would 
not require additional disclosure, as new disclosure required under 
Item 402 as proposed would only relate to issuers who are already 
public companies and have conducted a prior shareholder vote on 
executive compensation.
    \149\ We have reduced the number of estimated Form S-4 and Form 
F-4 filings to reflect an approximate 75% of these forms which will 
not relate to mergers or similar transactions but will be other 
transactions (e.g., holding company formations and financings) to 
which the amended rules would not apply.
    \150\ We have reduced the number of estimated DEFM14C filings to 
reflect an approximate 15% of these forms, which will not relate to 
merger transactions but will involve dissolutions and similar 
transactions.
    \151\ We have reduced the number of estimated Schedules TO-T, 
14D-9 and 13E-3 to reflect the approximate number of these filings 
to which the proposed rules would apply, based on the total number 
of filings from calendar year 2009. We have substantially reduced 
the number of Schedules 13E-3 to avoid double counting, as the 
majority of these forms are filed in conjunction with a DEF14A. In 
addition, we have reduced the number of Schedule TO-T filings as we 
anticipate that some bidders would incorporate by reference 
disclosure in Schedule 14D-9 and not incur an additional disclosure 
burden.
    \152\ We have reduced the number of estimated Form N-2 filings 
to reflect that 29 filings were made by business development 
companies during calendar year 2009, because only business 
development companies would be subject to the proposed disclosure 
required under Item 402 on Form N-2.
---------------------------------------------------------------------------

     Evaluate whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Commission, including whether the information will have practical 
utility;
     Evaluate the accuracy of our estimate of the burden of the 
proposed collections of information;
     Determine whether there are ways to enhance the quality, 
utility, and

[[Page 66610]]

clarity of the information to be collected;
     Evaluate whether there are ways to minimize the burden of 
the collections of information on those who respond, including through 
the use of automated collection techniques or other forms of 
information technology; and
     Evaluate whether the proposed amendments will have any 
effects on any other collections of information not previously 
identified in this section.
    Any member of the public may direct to us any comments concerning 
the accuracy of these burden estimates and any suggestions for reducing 
the burdens. Persons who desire to submit comments on the collection of 
information requirements should direct their comments to OMB, 
Attention: Desk Officer for the Securities and Exchange Commission, 
Office of Information and Regulatory Affairs, Room 10102, New Executive 
Office Building, Washington, DC 20503 and should send a copy to 
Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 
F Street, NE., Washington, DC 20549-1090, with reference to File No. 
S7-31-10. Requests for materials submitted to the OMB by us with regard 
to these collections of information should be in writing, refer to File 
No. S7-31-10 and be submitted to the Securities and Exchange 
Commission, Office of Investor Education and Advocacy, 100 F Street, 
NE., Washington, DC 20549-0213. Because OMB is required to make a 
decision concerning the collections of information between 30 and 60 
days after publication, your comments are best assured of having their 
full effect if OMB receives them within 30 days of publication.

IV. Cost-Benefit Analysis

A. Introduction

    We are proposing rulemaking to implement and supplement the 
provisions of the Dodd-Frank Act relating to shareholder approval of 
executive compensation and disclosure and shareholder approval of 
golden parachute compensation arrangements. Section 951 of the Dodd-
Frank Act amends the Exchange Act by adding new Section 14A. New 
Section 14A(a)(1) requires companies to conduct a separate shareholder 
advisory vote to approve the compensation of executives. Section 
14A(a)(2) requires companies to conduct a separate shareholder advisory 
vote to determine how often an issuer will conduct a shareholder 
advisory vote on executive compensation. In addition, Section 14A(b) 
requires companies soliciting votes to approve merger or acquisition 
transactions to provide disclosure of certain ``golden parachute'' 
compensation arrangements and, when such arrangements have not been 
included in the shareholder advisory vote on executive compensation, to 
conduct a separate shareholder advisory vote to approve the golden 
parachute compensation arrangements.\153\
---------------------------------------------------------------------------

    \153\ According to the Dodd-Frank Wall Street Reform and 
Consumer Protection Act Conference Report at page 872, Section 951 
is ``designed to address shareholder rights and executive 
compensation practices.''
---------------------------------------------------------------------------

    We are proposing new Rule 14a-21 to implement Section 14A(a)(1) by 
providing separate shareholder advisory votes to approve executive 
compensation, to approve the frequency of such votes on executive 
compensation, and to approve golden parachute compensation arrangements 
at shareholder meetings at which shareholders are asked to approve 
merger transactions. In addition to the votes required by Section 14A, 
we are also proposing a new Item 24 of Schedule 14A to elicit 
disclosure, similar to our approach with respect to TARP companies 
providing shareholder advisory votes on executive compensation, 
regarding the effect of the shareholder votes required by Rule 14a-21, 
including whether the votes are non-binding.
    Our proposed new Item 402(t) of Regulation S-K implements and 
supplements the statutory requirement in Section 14A(b)(1) to 
promulgate rules for the clear and simple disclosure of golden 
parachute compensation arrangements that the soliciting person has with 
its named executive officers (if the acquiring issuer is not the 
soliciting person) or that it has with the named executive officers of 
the acquiring issuer that relate to the merger transaction. In 
addition, Item 402(t), as proposed, would supplement the requirements 
of Section 14A(b)(1) by requiring disclosure of golden parachute 
compensation arrangements between the acquiring company and the named 
executive officers of the target company if the target company is the 
soliciting person.
    Our proposed amendments to Item 5 of Schedule 14A would require 
disclosure regarding golden parachute compensation arrangements in 
accordance with Section 14A(b)(1) of the Exchange Act. We are also 
proposing that additional disclosure regarding golden parachute 
compensation arrangements be required in connection with other 
transactions. We have proposed amendments to Regulation M-A, Schedule 
14D-9 and Schedule 13E-3 that would require additional disclosure 
regarding golden parachute compensation arrangements in connection with 
Rule 13e-3 going-private transactions and tender offers.
    We are also proposing amendments to Item 402 of Regulation S-K to 
require additional Compensation Discussion and Analysis disclosure 
about the issuer's response to the shareholder vote on executive 
compensation and to provide additional disclosure about golden 
parachute compensation arrangements. We are also proposing amendments 
to Form 10-K and Form 10-Q to require disclosure regarding the issuer's 
action as a result of the shareholder advisory vote on the frequency of 
shareholder votes on executive compensation.
    We are proposing an amendment to Rule 14a-4, which relates to the 
form of proxy that issuers are required to include with their proxy 
materials, to require that issuers present four choices to their 
shareholders in connection with the advisory vote on frequency. We are 
also proposing an amendment to Rule 14a-6 to add the shareholder votes 
on executive compensation and the frequency of shareholder votes on 
executive compensation required by Section 14A(a) to the list of items 
that do not trigger the filing of a preliminary proxy statement. In 
addition, we are proposing an amendment to Rule 14a-8, adding a note to 
Rule 14a-8(i)(10) to clarify the status of shareholder proposals 
relating to the approval of executive compensation or the frequency of 
shareholder votes approving executive compensation.
    Our proposed rulemaking, which implements the relevant provisions 
of the Dodd-Frank Act, will directly affect most public companies as 
well as potential private acquirers. Our proposed rules implement the 
shareholder advisory vote requirements of Section 14A, promulgate rules 
for additional disclosure in accordance with Section 14A(b)(1), and 
provide for additional disclosure, not required by Section 14A, 
relating to the shareholder advisory votes. In addition, our proposed 
rules expand the required disclosure of Section 14A(b)(1) to require 
disclosure of arrangements between additional parties, namely 
agreements between the acquiring company and named executive officers 
of the target company, and require disclosure with respect to 
additional transactions, including certain tender offers and Rule 13e-3 
going-private transactions. As discussed below, the enhanced disclosure 
required by our proposed rulemaking regarding the shareholder approval 
of executive

[[Page 66611]]

compensation and companies' responses to shareholder votes would 
provide shareholders and investors with timely information about such 
votes that is consistent with the information required to be provided 
under the Act and that would enhance the operation of our rules 
pursuant to the Act. The enhanced disclosure regarding golden parachute 
compensation would provide a more complete picture of the compensation 
to shareholders as they consider voting and investment decisions 
relating to mergers and similar transactions.

B. Benefits

    The proposed rulemaking is intended to implement and supplement the 
requirements of Section 14A of the Exchange Act as set forth in Section 
951 of the Dodd-Frank Act. The proposed amendments also provide for 
enhanced disclosure relating to the shareholder advisory votes required 
by Exchange Act Section 14A and how an issuer's consideration of such 
votes affects its compensation policies and decisions. Our proposed 
rules would not only implement the shareholder advisory votes required 
by Section 14A, but would also require additional disclosure addressing 
how issuers have considered these required shareholder advisory votes, 
and if so, how such votes have affected the companies' compensation 
policies and decisions.
    We believe the enhanced disclosures about the results of the 
shareholder advisory vote on the frequency of the approval of executive 
compensation would provide timely information to shareholders about the 
issuer's plans for future shareholder advisory votes. Our proposed 
enhanced disclosure and proposed amendments to the CD&A requirements in 
Item 402(b) of Regulation S-K about an issuer's consideration of the 
results of a shareholder vote to approve executive compensation and how 
that consideration has affected its compensation policies and decisions 
would benefit shareholders and other market participants by providing 
potentially useful information for voting and investment decisions.
    Our proposed rules would also specify how the shareholder advisory 
votes required by Section 14A(a) relate to existing shareholder 
advisory votes required for issuers with outstanding indebtedness under 
TARP. In our view, because of the similarity of the separate annual 
say-on-pay vote requirements, a company with indebtedness under TARP 
need only provide one annual shareholder advisory vote. As we have 
discussed above, we have indicated that the annual shareholder advisory 
vote under EESA would fulfill the requirements for the shareholder vote 
pursuant to Section 14A(a)(1) and Rule 14a-21(a). We believe this 
benefits such companies by reducing confusion and burdens of the two 
requirements by specifying that two separate annual shareholder votes 
are not required. In addition, because issuers with indebtedness under 
TARP must conduct an annual shareholder advisory vote on executive 
compensation, we have proposed an exemption from the frequency vote 
required by Section 14A(a)(2) and Rule 14a-21(b) until the issuer 
repays all indebtedness under TARP. We believe this benefits such 
issuers and their shareholders by avoiding the cost and confusion of 
conducting a vote on the frequency of a shareholder advisory vote when 
the frequency of such a vote is mandated by another requirement.
    In our proposed rules, we also provide guidance for issuers and 
shareholders regarding the interaction of the shareholder advisory 
votes required by Section 14A and shareholder proposals under Rule 14a-
8 by proposing a note to Rule 14a-8(i)(10). The proposed note would 
reduce potential confusion among shareholders and issuers with respect 
to what may be excluded under our rules by providing for the exclusion 
of certain shareholder proposals that the company has substantially 
implemented, while preserving the ability of shareholders to make 
proposals relating to executive compensation.
    New proposed Item 402(t) of Regulation S-K would require narrative 
and tabular disclosure of golden parachute compensation arrangements in 
the clear and simple form required by Section 14A(b)(1) of the Exchange 
Act. Because Section 14A(b)(1) requires that disclosure not only be in 
a clear and simple form, but also that it include an aggregate total of 
all golden parachute compensation for each named executive officer, we 
have proposed Item 402(t) to require that such disclosure appear in a 
table. The tabular format is designed to provide investors with clear 
disclosure about golden parachute compensation that is comparable 
across different issuers and transactions and make the information more 
accessible. In addition to the tabular disclosure, we are also 
proposing narrative disclosure to provide additional context and 
provide disclosure not suitable to the tabular format. Our approach is 
similar to the existing approach to executive compensation disclosure 
in Item 402 of Regulation S-K and provides a focused manner in which to 
present and quantify golden parachute compensation. Narrative 
disclosure supplements the tables by providing additional context and 
discussion of the numbers presented in the table. We believe that the 
proposed combination of narrative and tabular disclosure would provide 
the clearest picture of the full scope of golden parachute compensation 
in the clear and simple format required by Section 14A(b)(1).
    Because Section 14A(b)(1)'s disclosure requirements are limited to 
agreements or understandings between the person conducting the 
solicitation and any named executive officers of the issuer or any 
named executive officers of the acquiring issuer if the person 
conducting the solicitation is not the acquiring issuer, we have 
formulated proposed Item 402(t) to require disclosure, in addition to 
the disclosure mandated by Section 14A(b)(1), of agreements or 
understandings between the acquiring company and the named executive 
officers of the target company. As proposed, Item 402(t) would require 
disclosure of all golden parachute compensation relating to the merger 
among the target and acquiring companies and the named executive 
officers of each in order to cover the full scope of golden parachute 
compensation applicable to the transaction. By providing disclosure of 
the full scope of golden parachute compensation, we believe issuers 
would provide more detailed and comprehensive information to 
shareholders to consider when making their voting or investment 
decisions.
    Likewise, additional disclosure on golden parachute compensation, 
without regard to whether the transaction is structured as a merger, a 
tender offer or a Rule 13e-3 going-private transaction that is not 
subject to Regulation 14A, would benefit shareholders and other market 
participants by allowing them to timely and more accurately assess the 
transaction and evaluate with greater acuity the golden parachute 
compensation that named executive officers could expect to receive and 
the related potential interests such officers might have in pursuing 
and/or supporting a change in control transaction. While our existing 
disclosure requirements include much of this disclosure, the 
specificity and narrative and tabular format of proposed Item 402(t) 
would allow for a clear presentation of the full scope of the 
information. Furthermore, by standardizing disclosure of golden 
parachute compensation arrangements across different transaction 
structures, our proposed rules would enable

[[Page 66612]]

shareholders to compare more easily such compensation among various 
types of change in control transactions and structures. In addition, 
our proposed rules would also enable the shareholders of the acquirer 
to timely and more accurately assess the cost of the acquisition 
transaction in proxy statements for which additional disclosure is 
required pursuant to Note A of Schedule 14A where acquirer shareholders 
do not vote on the merger transaction but vote to approve another 
proposal such as the issuance of shares or a stock split.
    We have proposed such disclosure in both tabular and narrative 
formats, with disclosure of aggregate total compensation, in accordance 
with the requirement of Section 14A(b)(1) that such disclosure be in a 
clear and simple form. To the extent investors expect to see 
information about all of the economic benefits that may accrue to an 
executive in one location of the proxy statement (including golden 
parachute arrangements and other compensation, such as future 
employment contracts), the benefit of this disclosure may be limited 
since, as proposed, the information about other executive compensation 
that may be disclosed in proxy materials would not need to be included 
in the tabular format pursuant to Item 402(t) of Regulation S-K.
    Our proposed rulemaking would also benefit issuers by specifying 
how they must comply with the requirements of Exchange Act Section 14A 
in the context of the federal proxy rules. The proposed rulemaking 
would eliminate uncertainty that may exist among issuers and other 
market participants, if we did not propose any rules, regarding what is 
necessary under the Commission's proxy rules when conducting a 
shareholder vote required under Exchange Act Section 14A. The proposed 
rules would specify how the statutory requirements operate in 
connection with the federal proxy rules and accordingly, we believe the 
proposed rulemaking would promote better compliance with the 
requirements of Exchange Act Section 14A and reduce the amount of 
management time and financial resources necessary to ensure that 
issuers comply with their obligations under both Exchange Act Section 
14A and the federal proxy rules. This would benefit issuers, their 
shareholders and other market participants.

C. Costs

    We recognize that the proposed amendments would impose new 
disclosure requirements on companies and are likely to result in costs 
related to information collection. The proposed rulemaking that 
requires the disclosure of executive compensation in a tabular format 
is likely to result in certain costs. We expect these costs, however, 
to be limited since much of the compensation required to be disclosed 
under our proposed rulemaking is currently required to be disclosed in 
narrative format in the existing disclosure regime.
    We have proposed new Item 402(t) to implement the requirement of 
Section 14A(b)(1) of the Exchange Act that we promulgate rules for 
disclosure of golden parachute compensation arrangements in a clear and 
simple form, which we believe is best provided in both narrative and 
tabular format. In addition to the required disclosure under Section 
14A(b)(1), we have also proposed expanding the disclosure to cover 
agreements between the acquiring company and the named executive 
officers of a target company in a merger or similar transaction. Though 
this additional disclosure would result in certain additional costs for 
issuers preparing a merger proxy, we believe that the additional 
disclosure is appropriate in order to provide shareholders information 
about the full scope of golden parachute compensation applicable to the 
transaction. There may also be certain indirect costs to issuers and 
shareholders as a result of our proposed rules, as the additional 
disclosure of golden parachute compensation may result in increased 
transactional expenses in the form of additional advisers and 
consultants, increased time to prepare disclosure documents, and 
increased time and expense to negotiate compensation arrangements.
    Furthermore, companies engaging in or subject to a third-party 
tender offer or Rule 13e-3 going-private transaction may face increased 
costs because of the required disclosure of golden parachute 
compensation arrangements, including the required table and aggregate 
totals, under the proposed rulemaking. In addition, companies 
soliciting proxies or consents for transactions for which additional 
disclosure is required pursuant to Note A of Schedule 14A may face 
increased costs as well due to the additional disclosure requirements 
of Item 5 of Schedule 14A. We have proposed these disclosure 
requirements that go beyond the requirements of Section 14A(b)(1) 
because we believe the proposed rules would reduce the regulatory 
disparity that might otherwise result from treating such transactions 
differently from mergers. As noted above, there may also be additional 
indirect costs relating to such increased disclosure, as well as costs 
associated with obtaining compensation information from the other 
parties involved in a transaction in order to fulfill the issuer's 
disclosure obligations.
    The expanded Compensation Discussion and Analysis disclosure under 
the proposed rulemaking may also result in costs associated with 
drafting disclosure that addresses whether, and if so, how the results 
of a shareholder vote on executive compensation were considered in 
determining the issuer's compensation policies and decisions and any 
resultant effect on those compensation policies and decisions. 
Similarly, the proposed revisions to the periodic reporting 
requirements on Forms 10-K and 10-Q may result in costs associated with 
assessing the results of a shareholder vote on the frequency of 
shareholder votes to approve executive compensation and drafting the 
additional disclosure regarding the company's plans to conduct votes in 
the future. Some of these costs could include the cost of hiring 
additional advisors, such as attorneys, to assist in the analysis and 
drafting.
    We believe that these costs would not be unduly burdensome given 
that most of the disclosure is covered by our existing disclosure 
requirements, even though we are proposing that such disclosure be 
included in both narrative and tabular format. In addition to the 
existing narrative requirements, we are proposing tabular disclosure 
with an aggregate total and no de minimis threshold for perquisites. We 
expect that there will be incremental costs associated with drafting 
the additional disclosure, but that much of the information would be 
readily obtainable by the parties given existing disclosure 
requirements and as part of the due diligence process prior to drafting 
the transaction documents.
    In addition to the direct costs associated with the required 
disclosure, the proposed rule might create additional indirect costs 
for private companies that may be engaged in takeovers of public 
companies. We do not expect, however, the specific and detailed 
disclosure and the shareholder advisory vote regarding golden 
parachutes to diminish the number of takeover transactions.
    Our proposed note to Rule 14a-8(i)(10) may also impose certain 
costs on shareholders as our proposal would permit issuers to exclude 
certain shareholder proposals that would otherwise not be excludable 
under our rules. In addition, our proposals may impose certain indirect 
costs on shareholders who might pursue alternative means to communicate 
their

[[Page 66613]]

positions regarding the frequency of say-on-pay votes.
    For purposes of the PRA, we have estimated the collection of 
information burden and cost. However, we acknowledge that the PRA 
estimates do not reflect the full magnitude of the economic costs 
considered above. The estimates of total amount of time and resources 
spent in preparing are 25,202 labor hours and $8,142,000 costs. Of 
these, 15,300 labor hours and $2,040,000 are estimated for annual 
meeting proxy and information statements, 5,409 labor hours and 
$721,200 are estimated for periodic reports, 272 labor hours and 
$327,200 for Securities Act registration statements (excluding Forms S-
4 and F-4), Exchange Act registration statements, and Investment 
Company Act registration statements, and 4,211 labor hours and 
$5,052,800 for merger proxies and information statements, registration 
statements on Forms S-4 and F-4, tender offer statements and Schedules 
13E-3 for Rule 13e-3 transactions that are not otherwise subject to 
Regulation 14A.

D. Request for Comment

    We request data to quantify the costs and the value of the benefits 
described above. We seek estimates of these costs and benefits, as well 
as any costs and benefits not already defined, that may result from the 
adoption of these proposed amendments. We also request qualitative 
feedback on the nature of the benefits and costs described above and 
any benefits and costs we may have overlooked.

V. Small Business Regulatory Enforcement Fairness Act

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996, or ``SBREFA,'' \154\ we solicit data to determine whether 
the proposals constitute a ``major'' rule. Under SBREFA, a rule is 
considered ``major'' where, if adopted, it results or is likely to 
result in:
---------------------------------------------------------------------------

    \154\ 5 U.S.C. 603.
---------------------------------------------------------------------------

     An annual effect on the economy of $100 million or more 
(either in the form of an increase or a decrease);
     A major increase in costs or prices for consumers or 
individual industries; or
     Significant adverse effects on competition, investment or 
innovation.
    We request comment on the potential impact of the proposed 
amendments on the U.S. economy on an annual basis, any potential 
increase in costs or prices for consumers or individual industries, and 
any potential effect on competition, investment or innovation. 
Commentators are requested to provide empirical data and other factual 
support for their views if possible.

VI. Consideration of Impact on the Economy, Burden on Competition, and 
Promotion of Efficiency, Competition and Capital Formation

    Section 23(a)(2) of the Exchange Act \155\ also requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. Section 23(a)(2) prohibits us from 
adopting any rule that would impose a burden on competition not 
necessary or appropriate in furtherance of the purposes of the Exchange 
Act. In addition, Section 2(b) \156\ of the Securities Act and Section 
3(f) \157\ of the Exchange Act require us, when engaging in rulemaking 
where we are required to consider or determine whether an action is 
necessary or appropriate in the public interest, to also consider 
whether the action will promote efficiency, competition, and capital 
formation.
---------------------------------------------------------------------------

    \155\ 15 U.S.C. 78w(a).
    \156\ 15 U.S.C. 77b(b).
    \157\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    Our proposed amendments would implement the Section 14A requirement 
for shareholder advisory votes to approve executive compensation, the 
frequency of such votes, and golden parachute compensation arrangements 
in connection with merger and similar transactions. We have proposed 
certain additional disclosure requirements to provide investors with 
additional information about these required votes and to apply the 
required disclosure from Section 14A(b)(1) to certain other agreements 
and transaction structures. We do not believe that the additional 
disclosure we have proposed in our rulemaking would impose a burden on 
competition.
    The proposed amendments would not only implement the requirements 
of Section 14A of the Exchange Act, but would also help ensure that 
shareholders receive disclosure regarding the required votes, the 
nature of an issuer's responsibilities to hold the votes under Section 
14A, and the issuer's consideration of the results of the votes and the 
effect of such consideration on the issuer's compensation policies and 
decisions. The proposed amendments would also enhance the transparency 
of a company's compensation policies. As discussed in greater detail 
above, we believe these benefits would be achieved without imposing any 
significant additional burdens on issuers. As a result, the proposed 
amendments should improve the ability of investors to make informed 
voting and investment decisions, and, therefore lead to increased 
efficiency and competitiveness of the U.S. capital markets.
    We believe the proposed amendments would also benefit issuers and 
their shareholders by specifying how issuers must comply with the Dodd-
Frank Act requirements, in the context of the federal proxy rules and 
our disclosure rules. By specifying how issuers must comply with the 
shareholder advisory votes and enhanced disclosure requirements from 
Section 14A, our proposed rules would allow for more consistent 
disclosure from all entities and clearer disclosure for shareholders. 
By reducing uncertainty, our proposed rules would permit issuers to 
more efficiently plan and draft disclosure documents, including annual 
meeting proxy statements, merger proxies, and tender offer and going-
private documents.
    Our rules as proposed would require enhanced disclosure of golden 
parachute compensation arrangements in merger and similar transactions, 
regardless of how such transactions are structured. We believe the 
uniformity of our proposed disclosure requirements across different 
types of transactions would help competition as issuers would be able 
to structure such transactions as they see fit, without the additional 
disclosure required by Section 14A(b) weighing in favor of a particular 
transaction structure. Though our proposed rules would create 
additional, incremental disclosure burdens, we believe that our 
proposed rules would enhance capital formation by allowing for clearer 
disclosure, more informed voting decisions by investors, and 
consistency across different types of transactions.
    We request comment on whether the proposed amendments, if adopted, 
would impose a burden on competition. We also request comment on 
whether the proposed amendments, if adopted, would promote efficiency, 
competition, and capital formation. Commentators are requested to 
provide empirical data and other factual support for their view to the 
extent possible.

VII. Initial Regulatory Flexibility Act Analysis

    This initial Regulatory Flexibility Analysis (IRFA) has been 
prepared in accordance with the Regulatory Flexibility Act. It relates 
to proposed revisions to the rules under the Exchange Act regarding the 
proxy

[[Page 66614]]

solicitation process and related executive compensation disclosures.

A. Reasons for, and Objectives of, the Proposed Action

    These proposals are designed to implement the requirements of 
Section 951 of the Dodd-Frank Act, enhance the disclosure relating to 
the shareholder advisory votes required by Exchange Act Section 14A, 
and specify how our proxy rules would apply to such votes. 
Specifically, the proposals amend the proxy rules to require 
shareholder advisory votes to approve executive compensation, to 
approve the frequency of shareholder votes to approve executive 
compensation, and to approve golden parachute compensation arrangements 
in connection with merger transactions. Our proposals also require 
enhanced disclosure regarding an issuer's consideration of these votes 
and the impact of such consideration on an issuer's compensation 
policies and decisions.

B. Legal Basis

    We are proposing the amendments pursuant to Sections 13, 14(a), 
14A, 23(a), and 36 of the Exchange Act.

C. Small Entities Subject to the Proposed Action

    The proposed amendments would affect some companies that are small 
entities. The Regulatory Flexibility Act defines ``small entity'' to 
mean ``small business,'' ``small organization,'' or ``small 
governmental jurisdiction.'' \158\ The Commission's rules define 
``small business'' and ``small organization'' for purposes of the 
Regulatory Flexibility Act for each of the types of entities regulated 
by the Commission. Securities Act Rule 157 \159\ and Exchange Act Rule 
0-10(a) \160\ defines a company, other than an investment company, to 
be a ``small business'' or ``small organization'' if it has total 
assets of $5 million or less on the last day of its most recent fiscal 
year. We estimate that there are approximately 1,210 companies, other 
than investment companies, that may be considered small entities. The 
proposed amendments would affect small entities that have a class of 
securities that are registered under Section 12 of the Exchange Act. An 
investment company, including a business development company,\161\ is 
considered to be a ``small business'' if it, together with other 
investment companies in the same group of related investment companies, 
has net assets of $50 million or less as of the end of its most recent 
fiscal year.\162\ We believe that certain proposals would affect small 
entities that are business development companies who have a class of 
securities registered under Section 12 of the Exchange Act. We estimate 
that there are approximately 32 business development companies that may 
be considered small entities.
---------------------------------------------------------------------------

    \158\ 5 U.S.C. 601(6).
    \159\ 17 CFR 230.157.
    \160\ 17 CFR 240.0-10(a).
    \161\ Business development companies are a category of closed-
end investment companies that are not required to register under the 
Investment Company Act [15 U.S.C. 80a-2(a)(48)].
    \162\ 17 CFR 270.0-10(a).
---------------------------------------------------------------------------

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The proposed disclosure amendments are designed to enhance the 
disclosure regarding the shareholder advisory votes required by Section 
14A of the Exchange Act and provide additional disclosure about golden 
parachute compensation arrangements. These amendments would require 
small entities to provide:
     Disclosure of the shareholder advisory votes required by 
Section 14A and the effects of such votes, including whether they are 
non-binding;
     Disclosure of golden parachute arrangements described by 
Section 14A(b)(1) of the Exchange Act in merger proxies, and additional 
disclosure not required by Section 14A(b)(1) in connection with tender 
offers and going private transactions; and
     Disclosure of the issuer's decision in light of the 
shareholder vote on the frequency of shareholder votes to approve 
executive compensation required by Section 14A(a)(2) of the Exchange 
Act as to how frequently the issuer will include a shareholder vote on 
the compensation of executives.

E. Duplicative, Overlapping, or Conflicting Federal Rules

    We believe the proposed amendments would not duplicate, overlap, or 
conflict with other federal rules.

F. Significant Alternatives

    The Regulatory Flexibility Act directs us to consider alternatives 
that would accomplish our stated objectives, while minimizing any 
significant adverse impact on small entities. In connection with the 
proposed disclosure amendments, we considered the following 
alternatives:
     Establishing different compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities;
     Clarifying, consolidating, or simplifying compliance and 
reporting requirements under the rules for small entities;
     Use of performance rather than design standards; and
     Exempting small entities from all or part of the 
requirements.
    Currently, small entities that are smaller reporting companies 
under Exchange Act Rule 12b-12 are subject to some different compliance 
or reporting requirements under Regulation S-K and the proposed 
amendments would not affect these requirements.\163\ Under Regulation 
S-K, smaller reporting companies are permitted to provide abbreviated 
compensation disclosure with respect to the principal executive officer 
and two most highly compensated executive officers for the last two 
completed fiscal years. Specifically, smaller reporting companies may 
provide the executive compensation disclosure specified in Items 402(l) 
through (r) of Regulation S-K, rather than the corresponding disclosure 
specified in Items 402(a) through (k) of Regulation S-K. Items 402(l) 
through (r) do not require smaller reporting companies to provide CD&A. 
Other than the proposed amendments to CD&A, the remaining proposed 
disclosure requirements would apply to smaller reporting companies to 
the same extent as larger issuers.
---------------------------------------------------------------------------

    \163\ Rule 12b-2 excludes business development companies from 
the definition of ``smaller reporting companies.''
---------------------------------------------------------------------------

    As noted above, the proposed amendments to CD&A would not apply to 
smaller reporting companies. We are not proposing to expand the 
existing scaled disclosure requirements under Item 402 of Regulation S-
K, or establish additional different compliance requirements or an 
exemption from coverage of the proposed amendments for smaller 
reporting companies. The proposed amendments would provide investors 
with enhanced disclosure regarding the shareholder votes required by 
Section 14A of the Exchange Act and the issuers' consideration of the 
votes.
    We are proposing amendments to Item 5 of Schedule 14A, as well as 
other forms and schedules, to implement and supplement the requirement 
of Section 14A(b)(1) to provide disclosure of golden parachute 
compensation arrangements in a clear and simple form. Under our 
proposed rules, all companies would be subject to the same golden 
parachute disclosure requirements. As proposed, Schedule 14A would 
require the disclosure pursuant to Item 402(t) of Regulation S-K with 
respect to golden parachute compensation arrangements for merger 
proxies. Though much of the disclosure

[[Page 66615]]

required by our proposed amendment to Item 5 of Schedule 14A is 
currently required for all issuers, regardless of size, under our 
proposed rules such disclosure would be required to be included in a 
tabular format pursuant to Item 402(t) of Regulation S-K, which would 
include an aggregate total and specific quantification of various 
compensation elements. All companies, regardless of size, would also be 
subject to these additional disclosure requirements in connection with 
other transactions not required by Section 14A(b)(1), including certain 
tender offers and Rule 13e-3 going-private transactions.
    In addition, our proposed amendments would require clear and 
straightforward disclosure of issuer's responses to shareholder 
advisory votes, and of golden parachute compensation arrangements in 
connection with mergers and similar transactions. We have used design 
rather than performance standards in connection with the proposed 
amendments because, based on our past experience, we believe the 
proposed amendments would be more useful to investors if there were 
specific disclosure requirements. The proposed disclosures are intended 
to result in more comprehensive and clear disclosure. In addition, the 
specific disclosure requirements in the proposed amendments would 
promote consistent and comparable disclosure among all companies.
    We seek comment on whether we should exempt small entities from any 
of the proposed disclosures or scale the proposed amendments to reflect 
the characteristics of small entities and the needs of their investors.

G. Solicitation of Comments

    We encourage the submission of comments with respect to any aspect 
of this Initial Regulatory Flexibility Analysis. In particular, we 
request comments regarding:
     How the proposed amendments can achieve their objective 
while lowering the burden on small entities;
     The number of small entity companies that may be affected 
by the proposed amendments;
     The existence or nature of the potential impact of the 
proposed amendments on small entity companies discussed in the 
analysis; and
     How to quantify the impact of the proposed amendments.
    Respondents are asked to describe the nature of any impact and 
provide empirical data supporting the extent of the impact. Such 
comments will be considered in the preparation of the Final Regulatory 
Flexibility Analysis, if the proposed rule amendments are adopted, and 
will be placed in the same public file as comments on the proposed 
amendments themselves.

VIII. Statutory Authority and Text of the Proposed Amendments

    The amendments described in this release are being proposed under 
the authority set forth in Section 951 of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act, Sections 3(b), 6, 7, 10, and 19(a) 
of the Securities Act of 1933, and Sections 13, 14(a), 14A, 23(a), and 
36 of the Securities Exchange Act of 1934, as amended.

List of Subjects in 17 CFR Parts 229, 240 and 249

    Reporting and recordkeeping requirements, Securities.

Text of the Proposed Amendments

    For the reasons set out in the preamble, the Commission proposes to 
amend title 17, chapter II, of the Code of Federal Regulations as 
follows:

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
CONSERVATION ACT OF 1975--REGULATION S-K

    1. The authority citation for part 229 is amended by adding 
authority for Sec.  229.402 and Sec.  229.1011 to read as follows:

    Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 777iii, 
77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 
78ll, 78mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-31(c), 80a-37, 
80a-38(a), 80a-39, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350, 
unless otherwise noted.

* * * * *
    Section 229.402 is also issued under sec. 951, Pub. L. 111-203, 
124 Stat. 1376.
    Section 229.1011 is also issued under sec. 951, Pub. L. 111-203, 
124 Stat. 1376.
* * * * *

    2. Amend Sec.  229.402 by:
    a. Revising the last sentence of paragraph (a)(6)(ii);
    b. Removing ``and'' at the end of paragraph (b)(1)(v);
    c. Removing the period and adding in its place ``; and'' at the end 
of paragraph (b)(1)(vi);
    d. Adding paragraph (b)(1)(vii);
    e. Revising the last sentence of paragraph (m)(5)(ii); and
    f. Adding paragraph (t).
    The revisions read as follows:


Sec.  229.402  (Item 402) Executive compensation.

    (a) * * *
    (6) * * *
    (ii) * * * Except with respect to the disclosure required by 
paragraph (t) of this Item, registrants may omit information regarding 
group life, health, hospitalization, or medical reimbursement plans 
that do not discriminate in scope, terms or operation, in favor of 
executive officers or directors of the registrant and that are 
available generally to all salaried employees.
* * * * *
    (b) * * *
    (1) * * *
    (vii) Whether and if so, how the registrant has considered the 
results of previous shareholder advisory votes on executive 
compensation required by section 14A of the Exchange Act (15 U.S.C. 
78n-1) and previous shareholder advisory votes on executive 
compensation required by Sec.  240.14a-20 of this chapter in 
determining compensation policies and decisions and, if so, how that 
consideration has affected the registrant's executive compensation 
decisions and policies.
* * * * *
    (m) * * *
    (5) * * *
    (ii) * * * Except with respect to disclosure required by paragraph 
(t) of this Item, smaller reporting companies may omit information 
regarding group life, health, hospitalization, or medical reimbursement 
plans that do not discriminate in scope, terms or operation, in favor 
of executive officers or directors of the smaller reporting company and 
that are available generally to all salaried employees.
* * * * *
    (t) Golden Parachute Compensation. (1) In connection with
    (i) Any proxy or consent solicitation material providing the 
disclosure required by section 14A(b)(1) of the Exchange Act (15 U.S.C. 
78n-1(b)(1)) or
    (ii) Any proxy or consent solicitation that includes disclosure 
under Item 14 of Schedule 14A (Sec.  240.14a-101) pursuant to Note A of 
Schedule 14A, with respect to each named executive officer of the 
acquiring company and the target company, provide the information 
specified in paragraphs (t)(2) and (3) of this section regarding any 
agreement or understanding, whether written or unwritten, between such 
named executive officer and the acquiring company or target company, 
concerning any type of compensation, whether present, deferred or 
contingent, that is based on or otherwise relates to an

[[Page 66616]]

acquisition, merger, consolidation, sale or other disposition of all or 
substantially all assets of the issuer, as follows:

                                                              Golden Parachute Compensation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                Tax
                  Name                       Cash  ($)      Equity  ($)    Pension/NQDC    Perquisites/    reimbursement    Other  ($)      Total  ($)
                                                                                ($)        benefits  ($)        ($)
(a)                                                  (b)             (c)             (d)             (e)             (f)             (g)             (h)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PEO
--------------------------------------------------------------------------------------------------------------------------------------------------------
PFO
--------------------------------------------------------------------------------------------------------------------------------------------------------
A
--------------------------------------------------------------------------------------------------------------------------------------------------------
B
--------------------------------------------------------------------------------------------------------------------------------------------------------
C
--------------------------------------------------------------------------------------------------------------------------------------------------------

     (2) The table shall include, for each named executive officer:
    (i) The name of the named executive officer (column (a));
    (ii) The aggregate dollar value of any cash severance payments, 
including but not limited to payments of base salary, bonus, and pro-
rated non-equity incentive compensation plan payments (column (b));
    (iii) The aggregate dollar value of:
    (A) Stock awards for which vesting would be accelerated;
    (B) In-the-money option awards for which vesting would be 
accelerated; and
    (C) Payments in cancellation of stock and option awards (column 
(c)):
    (iv) The aggregate dollar value of pension and nonqualified 
deferred compensation benefit enhancements (column (d));
    (v) The aggregate dollar value of perquisites and other personal 
benefits or property, and health care and welfare benefits (column 
(e));
    (vi) The aggregate dollar value of any tax reimbursements (column 
(f));
    (vii) The aggregate dollar value of any other compensation that is 
based on or otherwise relates to the transaction not properly reported 
in columns (b) through (f) (column (g)); and
    (viii) The aggregate dollar value of the sum of all amounts 
reported in columns (b) through (g) (column (h)).

Instructions to Item 402(t)(2)

    1. If this disclosure is included in a proxy or consent 
solicitation seeking approval of an acquisition, merger, consolidation, 
or proposed sale or other disposition of all or substantially all the 
assets of the registrant, or in a proxy or consent solicitation that 
includes disclosure under Item 14 of Schedule 14A (Sec.  240.14a-101) 
pursuant to Note A of Schedule 14A, the disclosure provided by this 
table shall be quantified assuming that the triggering event took place 
on the latest practicable date, and that the price per share of the 
registrant's securities is the closing market price as of the latest 
practicable date. Compute the dollar value of in-the-money option 
awards for which vesting would be accelerated by determining the 
difference between this price and the exercise or base price of the 
options.
    2. If this disclosure is included in a proxy solicitation for the 
annual meeting at which directors are elected for purposes of 
subjecting the disclosed agreements or understandings to a shareholder 
vote under section 14A(a)(1) of the Exchange Act (15 U.S.C. 78n-
1(a)(1)), the disclosure provided by this table shall be quantified 
assuming that the triggering event took place on the last business day 
of the registrant's last completed fiscal year, and the price per share 
of the registrant's securities is the closing market price as of that 
date. Compute the dollar value of in-the-money option awards for which 
vesting would be accelerated by determining the difference between this 
price and the exercise or base price of the options.
    3. In the event that uncertainties exist as to the provision of 
payments and benefits or the amounts involved, the registrant is 
required to make a reasonable estimate applicable to the payment or 
benefit and disclose material assumptions underlying such estimates in 
its disclosure. In such event, the disclosure would require forward-
looking information as appropriate.
    4. For each of columns (b) through (g), include a footnote 
quantifying each separate form of compensation included in the 
aggregate total reported. Include the value of all perquisites and 
other personal benefits or property. Individual perquisites and 
personal benefits shall be identified and quantified as required by 
Instruction 4 to Item 402(c)(2)(ix) of this section. For purposes of 
quantifying health care benefits, the registrant must use the 
assumptions used for financial reporting purposes under generally 
accepted accounting principles.
    5. For each of columns (b) through (h), include a footnote 
quantifying the amount payable attributable to a double-trigger 
arrangement (i.e., amounts triggered by a change-in-control for which 
payment is conditioned upon the executive officer's termination without 
cause or resignation for good reason within a limited time period 
following the change-in-control), specifying the time-frame in which 
such termination or resignation must occur in order for the amount to 
become payable, and the amount payable attributable to a single-trigger 
arrangement (i.e., amounts triggered by a change-in-control for which 
payment is not conditioned upon such a termination or resignation of 
the executive officer).
    6. A registrant conducting a shareholder advisory vote pursuant to 
Sec.  240.14a-21(c) of this chapter to cover new arrangements and 
understandings, and/or revised terms of agreements and understandings 
that were previously subject to a shareholder advisory vote pursuant to 
Sec.  240.14a-21(a) of this chapter, shall provide two separate tables. 
One table shall disclose all golden parachute compensation, including 
both the arrangements and amounts previously disclosed and subject to a 
shareholder advisory vote under section 14A(a)(1) of the Exchange Act 
(15 U.S.C. 78n-1(a)(1)) and Sec.  240.14a-21(a) of this chapter and the 
new arrangements and understandings and/or revised terms of agreements 
and understandings that were previously subject to a shareholder 
advisory vote. The second table shall disclose only the new 
arrangements and/or revised terms

[[Page 66617]]

subject to the separate shareholder vote under section 14A(b)(2) of the 
Exchange Act and Sec.  240.14a-21(c) of this chapter.
    7. In cases where this Item 402(t)(2) requires disclosure of 
arrangements between an acquiring company and the named executive 
officers of the soliciting target company, the registrant shall clarify 
whether these agreements are included in the separate shareholder 
advisory vote pursuant to Sec.  240.14a-21(c) of this chapter by 
providing a separate table of all agreements and understandings subject 
to the shareholder advisory vote required by section 14A(b)(2) of the 
Exchange Act (15 U.S.C. 78n-1(b)(2)) and Sec.  240.14a-21(c) of this 
chapter, if different from the full scope of golden parachute 
compensation subject to Item 402(t) disclosure.
    (3) Provide a succinct narrative description of any material 
factors necessary to an understanding of each such contract, agreement, 
plan or arrangement and the payments quantified in the tabular 
disclosure required by this paragraph. Such factors shall include, but 
not be limited to a description of:
    (i) The specific circumstances that would trigger payment(s);
    (ii) Whether the payments would or could be lump sum, or annual, 
disclosing the duration, and by whom they would be provided; and
    (iii) Any material conditions or obligations applicable to the 
receipt of payment or benefits, including but not limited to non-
compete, non-solicitation, non-disparagement or confidentiality 
agreements, including the duration of such agreements and provisions 
regarding waiver or breach of such agreements.

Instruction to Item 402(t)

    1. A registrant that does not qualify as a ``smaller reporting 
company,'' as defined by Sec.  229.10(f)(1) of this chapter, must 
provide the information required by this Item 402(t) with respect to 
the individuals covered by Items 402(a)(3)(i), (ii) and (iii) of this 
section. A registrant that qualifies as a ``smaller reporting 
company,'' as defined by Sec.  229.10(f)(1) of this chapter, must 
provide the information required by this Item 402(t) with respect to 
the individuals covered by Items 402(m)(2)(i) and (ii) of this section.
    2. The obligation to provide the information in this Item 402(t) 
shall not apply to agreements and understandings described in paragraph 
(t)(1) of this section with senior management of foreign private 
issuers, as defined in Sec.  240.3b-4 of this chapter.
    3. Amend Sec.  229.1011 by redesignating paragraph (b) as paragraph 
(c) and adding new paragraph (b):
    The addition reads as follows:


Sec.  229.1011  (Item 1011) Additional information.

* * * * *
    (b) Furnish the information required by Item 402(t)(2) and (3) of 
this part (Sec.  229.402(t)(2) and (3)) and in the tabular format set 
forth in Item 402(t)(1) of this part (Sec.  229.402(t)(1)) with respect 
to each named executive officer
    (1) Of the subject company in a Rule 13e-3 transaction; or
    (2) Of the issuer whose securities are the subject of a third-party 
tender offer, regarding any agreement or understanding, whether written 
or unwritten, between such named executive officer and the subject 
company, issuer, bidder, or the acquiring company, as applicable, 
concerning any type of compensation, whether present, deferred or 
contingent, that is based upon or otherwise relates to the Rule 13e-3 
transaction or third-party tender offer.

Instructions to Item 1011(b)

    1. The obligation to provide the information in paragraph (b) of 
this section shall not apply where the issuer whose securities are the 
subject of the Rule 13e-3 transaction or tender offer is a foreign 
private issuer, as defined in Sec.  240.3b-4 of this chapter.
    2. In connection with any Schedule TO (Sec.  240.14d-100 of this 
chapter), a bidder's disclosure obligation pursuant to paragraph (b) of 
this section need be provided only to the extent known after making 
reasonable inquiry.
    3. For purposes of Instruction 1 to Item 402(t)(2) of this part: If 
the disclosure is included in a Schedule 13E-3 (Sec.  240.13e-100 of 
this chapter), TO (Sec.  240.14d-100 of this chapter) or 14D-9 (Sec.  
240.14d-101 of this chapter), the disclosure provided by this table 
shall be quantified assuming that the triggering event took place on 
the latest practicable date and that the price per share of the 
securities of the subject company in a Rule 13e-3 transaction, or of 
the issuer whose securities are the subject of the third-party tender 
offer, is the closing market price as of the latest practicable date.
* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

    4. The authority citation for Part 240 is amended by adding 
authority for Sec.  240.13e-100, Sec.  240.14a-4, Sec.  240.14a-6, 
Sec.  240.14a-8, Sec.  240.14a-21, Sec.  240.14a-101, and Sec.  
240.14c-101 as follows:

    Authority:  15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 
78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 
80b-11, and 7201 et seq., 18 U.S.C. 1350, and 12 U.S.C. 5221(e)(3), 
unless otherwise noted.
* * * * *
    Section 240.13e-100 is also issued sec. 951, under Pub. L. 111-
203, 124 Stat. 1376.
    Section 240.14a-4 is also issued under sec. 951, Pub. L. 111-
203, 124 Stat. 1376.
    Section 240.14a-6 is also issued under sec. 951, Pub. L. 111-
203, 124 Stat. 1376.
    Section 240.14a-8 is also issued under sec. 951, Pub. L. 111-
203, 124 Stat. 1376.
    Section 240.14a-21 is also issued under sec. 951, Pub. L. 111-
203, 124 Stat. 1376.
    Section 240.14a-101 is also issued under sec. 951, Pub. L. 111-
203, 124 Stat. 1376.
    Section 240.14c-101 is also issued under sec. 951, Pub. L. 111-
203, 124 Stat. 1376.
* * * * *

    5. Amend Sec.  240.13e-100 by revising Item 15.
    The revisions read as follows:


Sec.  240.13e-100  Schedule 13E-3, Transaction statement under section 
13(e) of the Securities Exchange Act of 1934 and Rule 13e-3 (Sec.  
240.13e-3) thereunder.

* * * * *
    Item 15. Additional Information
    Furnish the information required by Item 1011(b) and (c) of 
Regulation M-A (Sec.  229.1011(b) and (c) of this chapter).
* * * * *
    6. Amend Sec.  240.14a-4 by:
    (a) adding the phrase ``and votes to determine the frequency of 
shareholder votes on executive compensation pursuant to Sec.  240.14a-
21(b) of this chapter'' at the end of the first sentence of paragraph 
(b)(1);
    (b) adding paragraph (b)(3).
    The addition reads as follows:


Sec.  240.14a-4  Requirements as to proxy.

* * * * *
    (b) * * *
    (3) A form of proxy which provides for a shareholder vote on the 
frequency of shareholder votes to approve the compensation of 
executives required by section 14A(a)(2) of the Securities Exchange Act 
of 1934 (15 U.S.C. 78n-1(a)(2)) shall provide means whereby the person 
solicited is afforded an opportunity to specify by boxes a choice among 
1, 2 or 3 years, or abstain.
    7. Amend Sec.  240.14a-6 by:
    (a) removing ``and/or'' at the end of paragraph (a)(6);
    (b) revising paragraph (a)(7);
    (c) adding paragraph (a)(8).
    The revisions read as follows:


Sec.  240.14a-6  Filing requirements.

    (a) * * *

[[Page 66618]]

    (7) A vote to approve the compensation of executives as required 
pursuant to section 14A(a)(1) of the Securities Exchange Act of 1934 
(15 U.S.C. 78n-1(a)(1)) and Sec.  240.14a-21(a) of this chapter, or 
pursuant to section 111(e)(1) of the Emergency Economic Stabilization 
Act of 2008 (12 U.S.C. 5221(e)(1)) and Sec.  240.14a-20 of this 
chapter; and/or
    (8) A vote to determine the frequency of shareholder votes to 
approve the compensation of executives as required pursuant to Section 
14A(a)(2) of the Securities Exchange Act of 1934 (15 U.S.C. 78n-
1(a)(2)) and Sec.  240.14a-21(b) of this chapter.
    8. Amend Sec.  240.14a-8 by adding Note to paragraph (i)(10) to 
read as follows:


Sec.  240.14a-8  Shareholder proposals.

* * * * *
    (i) * * *
    (10) * * *

    Note to paragraph (i)(10):  A company may exclude, as 
substantially implemented, a shareholder proposal that would provide 
an advisory vote or seek future advisory votes to approve the 
compensation of executives as disclosed pursuant to Item 402 of 
Regulation S-K (Sec.  229.402 of this chapter) or any successor to 
Item 402 (a ``say-on-pay'' vote) or that relates to the frequency of 
say-on-pay votes, provided the company has adopted a policy on the 
frequency of say-on-pay votes that is consistent with the plurality 
of votes cast in the most recent shareholder vote required by Sec.  
240.14a-21(b) of this chapter.

    9. Add Sec.  240.14a-21 to read as follows:


Sec.  240.14a-21  Shareholder approval of executive compensation, 
frequency of votes for approval of executive compensation and 
shareholder approval of golden parachute compensation.

    (a) If a solicitation is made by a registrant and the solicitation 
relates to an annual or other meeting of shareholders for which the 
rules of the Commission require executive compensation disclosure 
pursuant to Item 402 of Regulation S-K (Sec.  229.402 of this chapter), 
the registrant shall, for the first annual or other meeting of 
shareholders on or after January 21, 2011 and not less frequently than 
once every 3 years thereafter, include a separate resolution subject to 
shareholder advisory vote to approve the compensation of its named 
executive officers, as disclosed pursuant to Item 402 of Regulation S-
K.
    (b) If a solicitation is made by a registrant and the solicitation 
relates to an annual or other meeting of shareholders for which the 
rules of the Commission require executive compensation disclosure 
pursuant to Item 402 of Regulation S-K (Sec.  229.402 of this chapter), 
the registrant shall, for the first annual or other meeting of 
shareholders on or after January 21, 2011 and not less frequently than 
once every 6 years thereafter, include a separate resolution subject to 
shareholder advisory vote as to whether the shareholder vote required 
by paragraph (a) of this section should occur every 1, 2 or 3 years. 
Registrants required to provide a separate shareholder vote pursuant to 
Sec.  240.14a-20 of this chapter shall include the separate resolution 
required by this section for the first annual or other meeting of 
shareholders after the registrant has repaid all obligations arising 
from financial assistance provided under the TARP, as defined in 
section 3(8) of the Emergency Economic Stabilization Act of 2008 (12 
U.S.C. 5202(8)), and not less frequently than once every 6 years 
thereafter.
    (c) If a solicitation is made by a registrant for a meeting of 
shareholders at which shareholders are asked to approve an acquisition, 
merger, consolidation or proposed sale or other disposition of all or 
substantially all the assets of the registrant, the registrant shall 
provide a separate shareholder vote to approve any agreements or 
understandings and compensation disclosed pursuant to Item 402(t) of 
Regulation S-K (Sec.  229.402(t) of this chapter), unless such 
agreements or understandings have been subject to a shareholder 
advisory vote under paragraph (a) of this section. Consistent with 
section 14A(b) of the Exchange Act (15 U.S.C. 78n-1(b)), any agreements 
or understandings between an acquiring company and the named executive 
officers of the registrant, where the registrant is not the acquiring 
company, are not required to be subject to the separate shareholder 
advisory vote under this paragraph.

Instructions to Sec.  240.14a-21

    1. Disclosure relating to the compensation of directors required by 
Item 402(k) and Item 402(r) of Regulation S-K (Sec.  229.402(r) of this 
chapter) is not subject to the shareholder vote required by paragraph 
(a) of this section. If a registrant includes disclosure pursuant to 
Item 402(s) of Regulation S-K (Sec.  229.402(s) of this chapter) about 
the registrant's compensation policies and practices as they relate to 
risk management and risk-taking incentives, these policies and 
practices would not be subject to the shareholder vote required by 
paragraph (a) of this section. To the extent that risk considerations 
are a material aspect of the registrant's compensation policies or 
decisions for named executive officers, the registrant is required to 
discuss them as part of its Compensation Discussion and Analysis under 
Sec.  229.402(b) of this chapter, and therefore such disclosure would 
be considered by shareholders when voting on executive compensation.
    2. If a registrant includes disclosure of golden parachute 
compensation arrangements pursuant to Item 402(t) (Sec.  229.402(t) of 
this chapter) in an annual meeting proxy statement, such disclosure 
would be subject to the shareholder vote required by paragraph (a) of 
this section.
    3. Registrants that are smaller reporting companies entitled to 
provide scaled disclosure in accordance with Item 402(l) of Regulation 
S-K (Sec.  229.402(l) of this chapter) are not required to include a 
Compensation Discussion and Analysis in their proxy statements in order 
to comply with this section. For smaller reporting companies, the vote 
required by paragraph (a) of this section must be to approve the 
compensation of the named executive officers as disclosed pursuant to 
Item 402(m) through (q) of Regulation S-K (Sec.  229.402(m) through (q) 
of this chapter).
    10. Amend Sec.  240.14a-101 by:
    (a) removing the dash that appears before paragraph (a) of Item 5 
and adding in its place an open parenthesis;
    (b) adding paragraph (a)(5) of Item 5;
    (c) adding paragraph (b)(3) of Item 5;
    (d) adding Item 24.
    The revisions read as follows:


Sec.  240.14a-101  Schedule 14A. Information required in proxy 
statement.

Schedule 14A Information
* * * * *
    Item 5. Interest of Certain Persons in Matters To Be Acted Upon.
    (a) * * *
    (5) If the solicitation is made on behalf of the registrant, 
furnish the information required by Item 402(t) of Regulation S-K 
(Sec.  229.402(t) of this chapter).
* * * * *
    (b) * * *
    (3) If the solicitation is made on behalf of the registrant, 
furnish the information required by Item 402(t) of Regulation S-K 
(Sec.  229.402(t) of this chapter).
* * * * *
    Item 24. Shareholder Approval of Executive Compensation. 
Registrants required to provide any of the separate shareholder votes 
pursuant to Sec.  240.14a-21 of this chapter shall disclose that they 
are providing each such vote as required pursuant to section 14A of the 
Securities Exchange

[[Page 66619]]

Act (15 U.S.C. 78n-1), and briefly explain the general effect of each 
vote, such as whether each such vote is non-binding.
    11. Amend Sec.  240.14c-101 by adding paragraph (c) of Item 3.
    The revisions read as follows:


Sec.  240.14c-101  Schedule 14C. Information required in information 
statement.

Schedule 14C Information
* * * * *
    Item 3. * * *
    (c) Furnish the information required by Item 402(t) of Regulation 
S-K (Sec.  229.402(t) of this chapter).
    12. Amend Sec.  240.14d-101 by revising Item 8 to add the words 
``and (c)'' after ``Item 1011(b)''.

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

    13. The authority citation for part 249 is amended by adding 
authority for Sec.  308a and Sec.  310 to read as follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C. 
1350, unless otherwise noted.
* * * * *
    Section 249.308a is also issued under sec. 951, Pub. L. 111-203, 
124 Stat. 1376.
    Section 249.310 is also issued under sec. 951, Pub. L. 111-203, 
124 Stat. 1376.
* * * * *
    14. Amend Form 10-Q (referenced in Sec.  249.308a) by adding 
paragraph (c) to Item 5 in Part II to read as follows:

    Note: The text of Form 10-Q does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-Q
* * * * *
Part II--Other Information
* * * * *
Item 5. Other Information
* * * * *
    (c) If an annual or other meeting of shareholders relating to the 
election of directors has occurred during the period covered by this 
report at which shareholders voted on the frequency of shareholder 
votes on the compensation of executives as required by section 14A of 
the Securities Exchange Act of 1934 (15 U.S.C. 78n-1), disclose the 
company's decision in light of such vote as to how frequently the 
company will include a shareholder vote on the compensation of 
executives for the six years subsequent to such meeting.
    15. Amend Form 10-K (referenced in Sec.  249.310) by adding a 
second sentence to Item 9B in Part II to read as follows:

    Note: The text of Form 10-K does not, and this amendment will 
not, appear in the Code of Federal Regulations.

Form 10-K
* * * * *
Part II--Other Information
* * * * *
Item 9B. Other Information
    (a) * * * If an annual or other meeting of shareholders relating to 
the election of directors has occurred during the fourth fiscal quarter 
in the period covered by this report at which shareholders voted on the 
frequency of shareholder votes on the compensation of executives as 
required by section 14A of the Securities Exchange Act of 1934 (15 
U.S.C. 78n-1), disclose the company's decision in light of such vote as 
to how frequently the company will include a shareholder vote on the 
compensation of executives for the six years subsequent to such 
meeting.
* * * * *

    Dated: October 18, 2010.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-26535 Filed 10-27-10; 8:45 am]
BILLING CODE 8011-01-P