Item 404 of Regulation S-K – Transactions with Related Persons, Promoters and Certain Control Persons

Last Update: August 8, 2007

The bracketed date following each interpretation is the latest date of publication or revision.

Note: For ease of discussion, we refer to the disclosure requirements and related rules adopted in the Executive Compensation rulemaking, including the August 2006 Executive Compensation and Related Person Disclosure rulemaking (Securities Act Release No. 8732A) and the December 2006 Executive Compensation amendments (Securities Act Release No. 8765), as the “new rules” and we refer to the disclosure requirements and related rules that were changed in the Executive Compensation rulemaking as the “old rules.”

QUESTIONS AND ANSWERS OF GENERAL APPLICABILITY

Section 1. Item 404 — General Guidance

Question 1.01

Question: If a company with a class of securities registered under the Exchange Act that is current in its Exchange Act reports files a Form S-1 that does not incorporate information by reference, must Item 404(a) disclosure be provided for fiscal years ending before December 15, 2006 if the company already provided Item 404 disclosure for these years under the old rules in a Commission filing?

Answer: No. Companies do not have to “restate” Item 404(a) disclosure under the new rules if it was previously reported under the old rules. [March 13, 2007]

Question 1.02

Question: If a company files a registration statement for an initial public offering on Form S-1, or files a Form 10 to register a class of securities under the Exchange Act, must the company provide Item 404(a) disclosure pursuant to the new rules for fiscal years ending before December 15, 2006?

Answer: Yes. Disclosure must be provided in these filings pursuant to the new rules for the period specified in Instruction 1 to Item 404. [March 13, 2007]

Section 2. Item 404(a) — Transactions with related persons

Question 2.01

Question: Item 404(a) requires, in pertinent part, disclosure of any transaction since the beginning of the registrant’s last fiscal year between the registrant and any 5 percent shareholder where the amount involved exceeds $120,000 and the 5 percent shareholder has a direct or indirect material interest in the transaction. Is disclosure required of such a transaction that occurred since the beginning of the registrant’s last fiscal year, but prior to the date the person became a 5 percent shareholder?

Answer: Disclosure is required if the transaction: (a) was continuing (such as through the ongoing receipt of payments) after the date the person became a 5 percent shareholder; or (b) resulted in the person becoming a 5 percent shareholder. If the transaction concluded before the person became a 5 percent shareholder, disclosure would not be required. [March 13, 2007]

Question 2.02

Question: How does a company value unexercised, in-the-money stock options for purposes of determining whether the $120,000 threshold of Item 404(a) has been met?

Answer: The value of unexercised, in-the-money options should be determined for Item 404(a) purposes by determining the difference between the fair market value of the securities underlying the options and the exercise or base price of the options. Use of the Black-Scholes or binomial option pricing method also would be appropriate, provided that such use and the underlying assumptions are clearly disclosed and the value thus calculated is greater than zero and is otherwise reasonably related to the unrealized gain. [March 13, 2007]

Question 2.03

Question: Is the condition that loans be made on substantially the same terms as for “comparable loans with persons not related to the lender” in Instruction 4.c.ii. to Item 404(a) satisfied if a bank makes loans available on the same terms to all of its employees, the vast majority of whom are not “related persons” as defined in Item 404, but the same terms are not offered to non-employees?

Answer: No. The term “persons not related to the lender” means persons with no relationship at all with the lender other than the lending relationship, such as regular customers. Employees are considered related to the lender by virtue of their employment relationship. [March 13, 2007]

Section 3. Item 404(b) — Review, approval or ratification of transactions with related persons

Question 3.01

Question: Must a company include disclosure regarding policies for the review, approval or ratification of related person transactions under Item 404(b)(1) even when the company does not have to report any transactions under Item 404(a)?

Answer: Yes. Item 404(b)(1) requires disclosure regarding policies for the review, approval or ratification of the types of related person transactions that would be disclosed under Item 404(a). [March 13, 2007]

Section 4. Item 404(c) — Promoters and certain control persons

None

INTERPRETIVE RESPONSES REGARDING PARTICULAR SITUATIONS

Section 1. Item 404 — General Guidance

None

Section 2. Item 404(a) — Transactions with related persons

2.01   The term “any immediate family member,” as used in Item 404, is defined to include, among others, mothers and fathers-in-law, sons and daughters-in-law, brothers and sisters-in-law, and stepchildren and stepparents. For purposes of this item, such relatives are deemed to be: (1) only those persons who are currently related to the primary reporting person (e.g., a person who is divorced from a director’s daughter would no longer be a son-in-law whose transactions must be reported); and (2) only those persons who are related by blood or step relationship to the primary reporting person or his spouse (e.g., the sister of a director’s spouse is considered a sister-in-law for purposes of this item; the sister’s husband, however, is not considered a brother-in-law for purposes of this item). [March 13, 2007]

2.02   A is an officer and director of Y corporation, a wholly-owned subsidiary of registrant X. A is not an officer or director of X and holds only a nominal amount of X’s shares. Y does business in an amount in excess of $120,000 with B, A’s brother. That relationship need not be disclosed in X’s reports under Item 404(a), since A is not a person described in Instruction 1 to Item 404(a). [March 13, 2007]

2.03   A corporation enters into a lease in an amount substantially in excess of $120,000 with a lessor completely unaffiliated with the corporation. The lease, however, is negotiated through a related person specified in Instruction 1 to Item 404(a), who is paid a commission that is less than $120,000 by the lessor for those services. Since the amount of that person’s commission is dependent upon the value of the lease, that person is considered to have an interest in the lease transaction, and the transaction, together with the commission, should be reported if the interest is determined to be a direct or indirect material interest. [March 13, 2007]

2.04   Y, the President and a director of Z Corporation, a supplier of the registrant, is a member of the registrant’s board of directors. The registrant solicited bids from Z and various other companies on a supply contract involving an amount in excess of the $120,000 threshold of Item 404(a). The registrant plans to award the contract to Z, even though this supplier did not submit the lowest bid in what purportedly was a competitive bidding contest. Under these circumstances, the registrant cannot avail itself of the exclusion in Instruction 7.a. to Item 404(a) for transactions where the rates or charges involved are determined by competitive bids. [March 13, 2007]

2.05   Instruction 7.a. to Item 404(a) of Regulation S-K does not permit non-disclosure of an equipment lease transaction between a company owned by a director of a reporting company and the reporting company, simply because the reporting company solicited proposals from other unrelated persons and selected the director’s company only after an internal analysis of the available terms. The procedure used was not deemed to be a competitive bid because it did not involve the formal procedures normally associated with competitive bidding situations. There were no specifications established for the lease being bid upon and there was no indication of the basis upon which a bid was accepted. [March 13, 2007]

2.06   A contract between a reporting company and the fund manager of the company’s pension plan, who is also a more than 5 percent beneficial owner under Rule 13d-3, should be disclosed under Item 404(a) where the amount involved in the contract exceeds $120,000. [March 13, 2007]

2.07   X is a director of the registrant. X’s child is employed by the registrant and receives yearly compensation exceeding $120,000. The child’s compensation is not reported under Item 402 since the child is not one of the registrant’s named executive officers, nor is the child an officer or director. The registrant was advised that the child’s compensation should be disclosed under Item 404(a) as a transaction in which the director has a material interest. [March 13, 2007]

2.08   An agreement by a company with a related person to repurchase company shares from the related person’s estate upon death with the proceeds of a life insurance policy paid for by the company should be disclosed pursuant to Item 404(a). [March 13, 2007]

2.09   In connection with a move of company headquarters, a company purchased and resold the homes owned by all affected employees. The price paid was determined by an independent appraiser. The company was advised that the Division staff will raise no objection if the company discloses under Item 404(a) only the general features of the program (including how the price was determined) and the total amount spent by the company on the program. [March 13, 2007]

2.10   Item 404(a) requires disclosure of nonaccrual, past due, restructured and potential problem loans from banks, savings and loan associations or broker-dealers extending credit under Federal Reserve Regulation T. Instruction 4.c. of Item 404(a) refers to Industry Guide 3, Statistical Disclosure by Bank Holding Companies, for determining if loans are nonaccrual, past due, restructured or potential problem loans. Guide 3 requires disclosure of loans in these categories the end of each “reported period.” In a proxy statement, therefore, where the reported period is the last fiscal year, only those loans which were in these categories at the end of the last fiscal year are required to be reported. [March 13, 2007]

2.11   A parent and its subsidiary are both Exchange Act reporting companies. Some of the executive officers of the parent may receive a portion of their compensation from the subsidiary corporation. The Division staff advised that if an executive spends 100% (or near 100%) of the executive’s time for the subsidiary but is paid by the parent, then the compensation paid by the parent has to be reported in the executive compensation table of the subsidiary. However, if an allocation of the monies paid by the parent would be necessary because the executive officer splits time between the parent and the subsidiary, the payments made by the parent need not be included in the subsidiary’s executive compensation table. In addition, in the event that the subsidiary pays a management fee to the parent for use of the executives, disclosure of the structure of the management agreement and fees would have to be reported under Item 404. Compensation paid by the subsidiary to executives of the parent company must be included in the parent’s executive compensation table if such payments are paid directly by the subsidiary. If the payments are part of a management contract, disclosure of the structure of the management agreement and fees would have to be reported under Item 404. [March 13, 2007]

2.12   When the transaction under consideration is an employment arrangement, “the amount involved in the transaction” includes all compensation, not just the salary of the employee. [August 8, 2007]

2.13   The compensation of an executive officer who is not a named executive officer is approved by the Board’s compensation committee, and the executive officer’s compensation is not disclosed under Item 404(a) pursuant to Instruction 5.a to Item 404(a). An immediate family member of this executive officer also is employed by the company. The immediate family member’s compensation is disclosed under Item 404(a). In this regard, Instruction 5.a to Item 404(a) does not apply to the immediate family member because she was not an executive officer. [August 8, 2007]

Section 3. Item 404(b) — Review, approval or ratification of transactions with related persons

None

Section 4. Item 404(c) — Promoters and certain control persons

None

http://www.sec.gov/divisions/corpfin/guidance/execcomp404interp.htm