For more than four decades, Fenwick & West LLP has helped some of the world’s most recognized companies become, and remain, market leaders. From emerging enterprises to large public corporations, our clients are leaders in the technology, life sciences and cleantech sectors and are fundamentally changing the world through rapid innovation.  MORE >

Fenwick & West was founded in 1972 in the heart of Silicon Valley—before “Silicon Valley” existed—by four visionary lawyers who left a top-tier New York law firm to pursue their shared belief that technology would revolutionize the business world and to pioneer the legal work for those technological innovations. In order to be most effective, they decided they needed to move to a location close to primary research and technology development. These four attorneys opened their first office in downtown Palo Alto, and Fenwick became one of the first technology law firms in the world.  MORE >

From our founding in 1972, Fenwick has been committed to promoting diversity and inclusion both within our firm and throughout the legal profession. For almost four decades, the firm has actively promoted an open and inclusive work environment and committed significant resources towards improving our diversity efforts at every level.  MORE >

FLEX by Fenwick is the only service created by an AmLaw 100 firm that provides flexible and cost-effective solutions for interim in-house legal needs to high-growth companies.  MORE >

Fenwick & West handles significant cross-border legal and business issues for a wide range of technology and life sciences who operate internationally..  MORE >

At Fenwick, we are proud of our commitment to the community and to our culture of making a difference in the lives of individuals and organizations in the communities where we live and work. We recognize that providing legal services is not only an essential part of our professional responsibility, but also an excellent opportunity for our attorneys to gain valuable practical experience, learn new areas of the law and contribute to the community.  MORE >

Year after year, Fenwick & West is honored for excellence in the legal profession. Many of our attorneys are recognized as leaders in their respective fields, and our Corporate, Tax, Litigation and Intellectual Property Practice Groups consistently receive top national and international rankings, including:

  • Named Technology Group of the Year by Law360
  • Ranked #1 in the Americas for number of technology deals in 2015 by Mergermarket
  • Nearly 20 percent of Fenwick partners are ranked by Chambers
  • Consistently ranked among the top 10 law firms in the U.S. for diversity
  • Recognized as having top mentoring and pro bono programs by Euromoney


We take sustainability very seriously at Fenwick. Like many of our clients, we are adopting policies that reduce consumption and waste, and improve efficiency. By using technologies developed by a number of our cleantech clients, we are at the forefront of implementing sustainable policies and practices that minimize environmental impact. In fact, Fenwick has earned recognition in several areas as one of the top US law firms for implementing sustainable business practices.  MORE >

At Fenwick, we have a passion for excellence and innovation that mirrors our client base. Our firm is making revolutionary changes to the practice of law through substantial investments in proprietary technology tools and processes—allowing us to deliver best-in-class legal services more effectively.   MORE >

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Corporate and Securities Alert: SEC Moves More Toward Annual-Based Reporting Approach to Compensation Disclosures

The staff of the Securities and Exchange Commission ("the Staff") is engaged in a general movement away from taking an event-based reporting approach to compensation disclosures on Form 8-K in favor of taking an annual-based reporting approach. The Staff may no longer require a report under Item 5.02(e) of Form 8-K for discretionary bonuses paid to named executive officers ("NEOs") even when those officers do not meet performance criteria. However, the Staff will still require the registrant to disclose such compensation decisions to stockholders before the next annual meeting.

A hypothetical illustrates the Staff's movement to annual-based reporting of compensation disclosures:

Assume a registrant maintains an omnibus incentive plan ("OIP") under which cash-based or equity-based awards subject to performance-based vesting are granted to the registrant's NEOs. The OIP contemplates payment of discretionary bonuses, as do other plans, contracts, or arrangements with the registrant's NEOs. NEO's do not achieve the applicable performance goals. Nonetheless, the registrant determines to pay material discretionary cash bonus to NEO's. Must the registrant disclose these bonus payments under Item 5.02(e) of Form 8-K?

The Hypothetical Bonus Payment Under the Old Event-Based Reporting Approach

According to Compliance and Disclosure Interpretation 117.11 (April 2, 2008), if the registrant exercised discretion to pay a bonus even though an NEO did not achieve the applicable performance goals, the registrant would be required to report that payment under Item 5.02(e) on Form 8-K. Even if the applicable plan permitted the exercise of discretion in determining bonuses, Interpretation 117.11 appeared to require the registrant to report the bonus payment.

The Hypothetical Bonus Payment Under the New Annual-Based Reporting Approach

The Staff's position now appears to be that as long as the registrant pays the bonus pursuant to an express right to exercise discretion in determining bonus payments under the OIP or pursuant to some non-OIP exercise of discretion (where the possible exercise of discretion has been previously disclosed) the registrant would not need to report this discretionary bonus payment under Item 5.02(e) on Form 8-K. The Staff views the payments as being materially consistent with the terms and conditions of the OIP (or a prior disclosure of the possible exercise of discretion), and the fact that the registrant does not have a practice of paying discretionary bonuses to NEOs upon failure to fulfill performance criteria does not make the bonus payment materially inconsistent with the OIP (or prior disclosure).

Practical Advice

To avoid the need to file a Form 8-K, registrants should consider disclosure of the possible exercise of discretion in order that future compensation decisions will be viewed as materially consistent with such disclosures. The registrant must, however, still disclose and justify discretionary compensation decisions in the annual Compensation Discussion & Analysis under Item 402 of Regulation S-K. This may involve difficult disclosures where the exercise of discretion is used to award bonuses where performance goals have not been achieved.

You should consult with your Fenwick & West LLP contact prior to making the type of compensation decisions discussed above to determine the appropriate disclosures.

For more information, you may contact any attorney in the Executive Compensation and Employee Benefits Group.

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