15 U.S.C. § 78n–1: Shareholder approval of…

Summary

Companies must put a separate, nonbinding shareholder vote on executive pay on their proxy materials at least once every 3 years. At least once every 6 years, they must also hold a separate vote asking shareholders whether the executive-pay vote should happen every 1, 2, or 3 years. For meetings happening after the end of the 6-month period beginning on July 21, 2010, the proxy must include both the pay vote and the vote on how often the pay vote should occur. When shareholders vote on a merger, acquisition, or sale of almost all a company’s assets after that same 6-month period, the proxy must clearly disclose any deal-related pay promises to named executives and the total possible payments. The proxy must also include a separate vote to approve those pay promises unless they already had an advisory pay vote under the normal schedule. Those shareholder votes are only advisory: they do not bind the company or its board, do not change the board’s duties, and do not stop shareholders from making other pay-related proposals. Institutional investment managers covered by section 78m(f) must report at least once a year how they voted on these items. The SEC can exempt some issuers or groups, especially small issuers; emerging growth companies are exempt. When an issuer stops being an emerging growth company, it must hold its first executive-pay vote within the specific timeframes the law sets (see the two time options based on how long it was an emerging growth company).

Title 15, §78n–1

Commerce and Trade, Source: USLM XML via OLRC

(a)Separate resolution required

(1)In general

Not 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 solicitation rules of the Commission require compensation disclosure shall include a separate resolution subject to shareholder vote to approve the compensation of executives, as disclosed pursuant to section 229.402 of title 17, Code of Federal Regulations, or any successor thereto.

(2)Frequency of vote

Not 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 whether votes on the resolutions required under paragraph (1) will occur every 1, 2, or 3 years.

(3)Effective date

The proxy or consent or authorization for the first annual or other meeting of the shareholders occurring after the end of the 6-month period beginning on July 21, 2010, shall include—

(A)the resolution described in paragraph (1); and

(B)a separate resolution subject to shareholder vote to determine whether votes on the resolutions required under paragraph (1) will occur every 1, 2, or 3 years.

(b)Shareholder approval of golden parachute compensation

(1)Disclosure

In any proxy or consent solicitation material (the solicitation of which is subject to the rules of the Commission pursuant to subsection (a)) for a meeting of the shareholders occurring after the end of the 6-month period beginning on July 21, 2010, 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 and 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.

(2)Shareholder approval

Any proxy or consent or authorization relating to the proxy or consent solicitation material containing the disclosure required by paragraph (1) shall include a separate resolution subject to shareholder vote to approve such agreements or understandings and compensation as disclosed, unless such agreements or understandings have been subject to a shareholder vote under subsection (a).

(c)Rule of construction

The shareholder vote referred to in subsections (a) and (b) shall not be binding on the issuer or the board of directors of an issuer, and may not be construed—

(1)as overruling a decision by such issuer or board of directors;

(2)to create or imply any change to the fiduciary duties of such issuer or board of directors;

(3)to create or imply any additional fiduciary duties for such issuer or board of directors; or

(4)to restrict or limit the ability of shareholders to make proposals for inclusion in proxy materials related to executive compensation.

(d)Disclosure of votes

Every institutional investment manager subject to section 78m(f) of this title shall report at least annually how it voted on any shareholder vote pursuant to subsections (a) and (b), unless such vote is otherwise required to be reported publicly by rule or regulation of the Commission.

(e)Exemption

(1)In general

The Commission may, by rule or order, exempt any other issuer or class of issuers from the requirement under subsection (a) or (b). In determining whether to make an exemption under this subsection, the Commission shall take into account, among other considerations, whether the requirements under subsections (a) and (b) disproportionately burdens small issuers.

(2)Treatment of emerging growth companies

(A)In general

An emerging growth company shall be exempt from the requirements of subsections (a) and (b).

(B)Compliance after termination of emerging growth company treatment

An issuer that was an emerging growth company but is no longer an emerging growth company shall include the first separate resolution described under subsection (a)(1) not later than the end of— (i)

(ii)in the case of any other issuer, the 1-year period beginning on the date the issuer is no longer an emerging growth company.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Securities Act of 1933, referred to in subsec. (e)(2)(B)(i), is title I of act May 27, 1933, ch. 38, 48 Stat. 74, which is classified generally to subchapter I (§ 77a et seq.) of chapter 2A of this title. For complete classification of this Act to the Code, see section 77a of this title and Tables.

Amendments

2012—Subsec. (e). Pub. L. 112–106 designated existing provisions as par. (1), inserted heading, substituted “any other issuer” for “an issuer”, and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as a note under section 5301 of Title 12, Banks and Banking.

§78n–1 Shareholder Approval of Executive Compensation