March 30, 2020
Authored by: Vicki Westerhaus and R. Randall Wang
Companies filed a flurry of Form 8-K filings last week announcing voluntary executive officer compensation reductions driven by the COVID-19 pandemic. While some companies disclosed the compensation changes under Item 7.01 or 8.01 on Form 8-K and others simply issued a press release, we saw an uptick in the number of companies making the disclosure under Item 5.02(e) of Form 8-K, which is triggered when a company enters into, adopts or materially amends a material compensatory plan or arrangement with the principal executive officer, principal financial officer or named executive officer.
Among companies making the disclosure under Item 5.02(e) of Form 8-K (Ford , Nordstrom , Lands’ End and Briggs & Stratton, among others), the executives generally reduced their compensation by at least 20% (and in some cases, 50% or 100%), seemingly taking the position that salary decreases of 20% or more were generally viewed as material amendments to the executives’ compensation arrangement (in parallel to the view that salary increases of 20% or more would generally would be viewed as material), although it is difficult to predict how long the reductions will continue and the true impact on the executives’ overall compensation.
Companies relying on Item 7.01 or 8.01 or a stand-alone press release likely were comfortable that based on their specific facts and circumstances, either that the decrease was not material to the executives’ compensation arrangements or, in the case where employment agreements were in place, perhaps by analogy to SEC CDI 117.13, that Item 5.02(e) was not triggered by the voluntary compensation reductions.
In line with SEC guidance, when considering disclosure of voluntary executive compensation decreases driven by COVID-19, companies should apply principles-based analysis of the facts and circumstances and consider, among other things, the magnitude of the compensation decrease and its expected duration, as well as the other components of the executive’s comp package. In some cases, consideration might be given to whether the material compensation reductions should be discussed in first quarter Form 10-Q filings, as management has more visibility into the impact of COVID-19 and the expected duration of the compensation reductions.