On July 1, 2016, the SEC approved NASDAQ's proposed Rule 5250(b)(3), as amended by Amendment No. 2 filed on June 30, 2016 (the "Final Rule"), requiring NASDAQ-listed companies to publicly disclose third-party compensation arrangements for board members and board nominees, which are commonly referred to as "golden leash" arrangements. The Final Rule requires each NASDAQ-listed company to disclose, by the date the company files its definitive proxy statement for its next annual meeting, the material terms of all agreements and arrangements between any director or nominee, and any person or entity other than the company, relating to compensation or other payment related to that person's candidacy or service as a director. The disclosure must be made at least annually until the earlier of the resignation of the director or one year following the termination of the agreement or arrangement, and can be made on a company's website or in the definitive proxy or information statement (or, if the company does not file proxy or information statements, in its Form 10-K or Form 20-F). The Final Rule further provides that a company would not need to make disclosure for agreements and arrangements that (1) relate only to reimbursement of expenses in connection with candidacy as a director; (2) existed prior to the nominee's candidacy (including as an employee of the other person or entity) and the nominee's relationship with the third party has been publicly disclosed in a definitive proxy or information statement or annual report (such as in the director or nominee's biography); or (3) have been disclosed under Item 5(b) of Schedule 14A of the Securities Exchange Act of 1934 or Item 5.02(d)(2) of Form 8-K in the current fiscal year. The Final Rule will be effective on August 1, 2016.
The SEC Release approving the Final Rule is available at: https://www.sec.gov/rules/sro/nasdaq/2016/34-78223.pdf.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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