The New Nasdaq and NYSE Compensation Committee Listing Standards

NYSE

Nasdaq

(1) the committee’s purpose and responsibilities, which, at a minimum, must be to have direct responsibility to:

(A) review and approve corporate goals and objectives relevant to the chief executive officer’s compensation, evaluate the chief executive officer’s performance in light of those goals and objectives, and, either as a committee or together with the other independent directors (as directed by the board), determine and approve the chief executive officer’s compensation level based on this evaluation;

(B) make recommendations to the board with respect to non-CEO executive officer compensation, and incentive-compensation and equity-based plans that are subject to board approval; and

(C) prepare the compensation committee disclosures required by Regulation S-K;

(2) an annual performance evaluation of the compensation committee;

(3) the committee’s rights and responsibilities related to compensation  advisers, including that:

(A) the committee may, in its sole discretion, retain or obtain the advice of a compensation consultant, independent legal counsel or other adviser;

(B) the committee be directly responsible for the appointment, compensation and oversight of the work of any compensation adviser retained;

(C) the company must provide for appropriate funding, as determined by the committee, for payment of reasonable compensation to a compensation adviser retained by the committee;

(D) the committee may select a compensation adviser only after taking into consideration, all factors relevant to that person’s independence from management, including the
following:

(i) other services provided to the company by the compensation adviser’s employer;

(ii) the fees received from the company by the compensation adviser’s employer as a percentage of such employer’s total revenues;

(iii) the policies and procedures of the compensation adviser’s employer that are designed to prevent conflicts of interest;

(iv) any business or personal relationship of the compensation adviser with a member of the compensation committee;

(v) any stock of the company owned by the compensation adviser; and

(vi) any business or personal relationship of the compensation adviser or the compensation adviser’s employer with an executive officer of the company.

The compensation committee charter must specify:

(1) the scope of the committee’s responsibilities and how it carries those responsibilities out, including structure, processes and membership requirements;

(2) the committee’s responsibility for determining or recommending executive compensation;

(3) that the chief executive officer may not be present during voting or deliberation on his compensation; and

(4) the committee’s specific responsibilities and authorities related to compensation advisers, including that:

(A) the committee may, in its sole discretion, retain or obtain the advice of a compensation consultant, independent legal counsel or other adviser;

(B) the committee be directly responsible for the appointment, compensation and oversight of any compensation consultant, independent legal counsel and other adviser retained by the compensation committee;

(C) the company must provide appropriate funding for payment of reasonable compensation, as determined by the compensation committee;and

(D) the committee may select, or receive advice from, a compensation adviser, other than with respect to in-house legal counsel, only after taking into consideration the following factors:

(i) other services provided to the company by the compensation adviser’s employer;

(ii) the fees received from the company by the compensation adviser’s employer as a percentage of such employer’s total revenues;

(iii) the policies and procedures of the compensation adviser’s employer that are designed to prevent conflicts of interest;

(iv) any business or personal relationship of the compensation adviser with a member of the compensation committee;

(v) any stock of the company owned by the compensation adviser; and

(vi) any business or personal relationship of the compensation adviser or the compensation adviser’s employer with an executive officer of the company.

In addition, in affirmatively determining the independence of a director who will serve on the compensation committee, a company’s board must consider all factors specifically relevant to whether the director has a relationship to the company which is material to the director’s ability to be independent from management in connection with the duties of a committee member, including, without limitation:

(1) the source of compensation of the director, including any consulting, advisory or other compensatory fee paid by the company; and

(2) whether the director is affiliated with the company, a subsidiary of the company or an affiliate of a subsidiary of the company.

Compensation committee members must be  independent under the general board independence requirements (Listing Rule 5605(a)(2)) and not accept, directly or indirectly, any consulting, advisory or other compensatory fee from the company or a subsidiary of the company.

The prohibition on compensatory fees excludes fees received as a member of the compensation committee itself and fixed fees received under a retirement plan for prior service to the company.

In addition, in determining whether a director is eligible to serve on the compensation committee, a company’s board also must consider the whether the director has affiliate relationships and whether such affiliations would impair the director’s judgment as a member of the compensation committee.

Under exceptional and limited circumstances,  where there are at least three members of a compensation committee, one may be a non-independent director who is not an executive officer, family member of an executive officer or employee, if the board determines that appointment of the non-independent director is in the best interests of the company and its shareholders. A non-independent director appointed under this exception may not serve longer than two years. In addition the company will be required to make certain disclosures either through its website or in its proxy statement related to the appointment.

However, no independence assessment is required in the case of in-house counsel or a compensation adviser who’s role is limited to:

(1) consulting on any broad-based plan that does not discriminate in scope, terms or operation, in favor executive officers or directors and is generally available to all salaried employees; and/or

(2) providing information that either is not customized for the company or that is customized based on parameters that are not developed by the adviser and about which the adviser does not provide advice.

However, no independence assessment is required in the case of in-house counsel or a compensation adviser who’s role is limited to:

(1) consulting on any broad-based plan that does not discriminate in scope, terms or operation, in favor executive officers or directors and is generally available to all salaried employees; and/or

(2) providing information that either is not customized for the company or that is customized based on parameters that are not developed by the adviser and about which the adviser does not provide advice.

(1) the next annual shareholders’ meeting; or

(2) one year from the occurrence of the event that caused the member to be no longer independent.

(1) the next annual shareholders’ meeting; or

(2) one year from the occurrence of the event that caused the noncompliance.

However, if the annual shareholders’ meeting occurs no later than 180 days following the event that caused noncompliance, the company will instead have 180 days to regain compliance. A company relying on the cure period must immediately notify Nasdaq upon learning of its noncompliance.

(1) the scope of the committee’s responsibilities and how it carries those responsibilities out, including structure, processes and membership requirements;

(2) the committee’s responsibility for determining or recommending executive compensation; and

(3) that the chief executive officer may not be present during voting or deliberation on his compensation.

Smaller reporting companies are exempt from the remaining compensation committee requirements, including the requirements related to specific compensation committee responsibilities and authority.

Smaller reporting companies may avail themselves of the exception for non-independent directors under exceptional and limited circumstances and the cure period.

(1) the reasons they do not have an independent compensation committee;

(2) the requirements they do not follow; and

(3) the home country practices followed in lieu thereof.

Companies will have until the earlier of:

(1) their first annual meeting after January 15, 2014; or

(2) October 31, 2014,

to comply with the independence requirements specific to compensation committee service.

If a company does not have a standing compensation committee by July 1, 2013, then the independent directors who determine, or recommend to the board for determination, executive compensation must comply with the requirements related to responsibilities and authority.

Companies must comply with the remaining requirements related to compensation committees, including having a written compensation committee charter, by the earlier of:

(1) their first annual meeting after January 15, 2014; or

(2) October 31, 2014.

Companies must certify their compliance with the compensation committee rules to Nasdaq no later than 30 days after the final implementation deadline.