The Advisors' Blog

This blog features wisdom from respected compensation consultants and lawyers

Monthly Archives: June 2011

June 30, 2011

Option Grant Practices: IRS Proposes Section 162(m) Changes

Broc Romanek, CompensationStandards.com

Last week, the IRS proposed new regulations under Section 162(m), which would significantly change the rule that applies to pre-existing stock option plans of private companies that then go public. Among other things, the proposal also reinforces that individual award limits must be stated in an option plan. We are posting memos in our “Section 162(m) Compliance Practice Area.” In addition, the NASPP will be covering this proposal in detail (here’s the NASPP’s Blog if you haven’t checked it out yet).

New movie on the horizon? Will Ferrell will star as “a narcissistic hedge fund manager who thinks he has seen God.”

June 29, 2011

Say-on-Pay: 35th – 39th Failed Votes

Broc Romanek, CompensationStandards.com

We’ve now had five more companies file Form 8-Ks reporting failed say-on-pay votes: Blackbaud (45%); Freeport McMoRan Copper & Gold (46%); Monolithic Power Systems (36%); Nabors Industries (43%) and Cutera (46%). I keep maintaining our list of Form 8-Ks for failed SOPs in our “Say-on-Pay” Practice Area.

June 27, 2011

Unlucky #7: A Quasi-Say-on-Pay Lawsuit

Broc Romanek, CompensationStandards.com

Last week, a seventh company was sued regarding its pay practices – Bank of New York Mellon in a state court in New York (here’s the complaint). One of the big differences in this lawsuit is unlike the six lawsuits filed against companies that failed to garner a majority of votes in support of their say-on-pay, Bank of New York Mellon received overwhelming support for its say-on-pay (although there was a huge number of broker non-votes). Here’s the Form 8-K reporting the company’s voting results.

Mark Borges notes “this lawsuit appears to be fundamentally different from the others that have been filed following a failed say-on-pay vote. This suit alleges that the company’s board (and its Compensation Committee) acted in contravention of the terms of their long-term incentive plans. What’s interesting to me is that the details of the complaint could only have been drawn from the Compensation Discussion and Analysis, so it’s a classic example of the disclosure providing a roadmap for second-guessing the decisions of the directors.” We continue to post pleadings from these cases in our “Say-on-Pay” Practice Area.

By the way, two of the oldest of the say-on-pay cases have been settled. As noted in this Davis Polk blog: “KeyCorp agreed, according to Reuters, to pay $1.75 million in attorneys’ fees and expenses to settle related suits and Occidental Petroleum, faced with three suits, settled one for an undisclosed amount and had two dismissed.”

June 22, 2011

They Held A Revolution and Nobody Came

Francis Byrd, Laurel Hill Advisory Group

I was struck recently by a story, in the New York Times, written by Gretchen Morgenson regarding retail shareholder restiveness. The article focused on a group of individual shareholders of the Celgene Corporation, inspired by the Arab Spring revolutions and the use of social media, to push back against the board’s Say on Pay request. According to the story, the shareholders are upset with a perceived CEO/NEO pay-for-performance disconnect. There are a couple of lessons here for companies, directors, shareholders and Ms. Morgenson from the Celgene cyber battle:

– While institutional investors are often supportive of management, retail shareholders tend to be far more supportive of management positions (when they vote) than institutional investors. Retail holders are more likely, in our experience (and those of solicitation firms), to back a management request or vote against a shareholder proposal. In the instant case with Celgene it is much more the exception than the rule.

– Boards and their advisors need to pay much more attention to the still untapped and vast potential of the social media. 2.7 million shares may seem to be a very small amount but for some of the companies that lost their advisory vote on executive compensation small shareholders could have tipped the balance – remember in a tight contest every vote counts.

– Bad news or perceived bad news is a strong motivator for both institutional and retail shareholders. Boards and senior management need to maintain control and disseminate positive and honest messages to their investors on strategy and growth prospect to stay one step ahead of problems.

Stop the ‘ISS Ate My Homework’ Comments

As the first portion of the 2011 proxy season comes to a close, we have detected not only the usual weariness from the institutions we’ve spoken with but some frustration from some of the issuer engagements they have had thus far this year.

The point of contention is the issuer attacks on ISS for their negative vote recommendations, whether the vote in question is on Say on Pay, a stock incentive plan or the proxy advisor’s support for a shareholder proposal. Issuers will disagree with a specific recommendation from ISS (or Glass Lewis) and that is not unusual, however many institutional investors have grown tired of hearing ad hominem attacks on the proxy advisory firms during dialogue with companies.

As one major investor put it to me earlier this week, “…we are not stupid. ISS does not think for us. If you have done a poor job of crafting your CD&A and proxy – don’t blame ISS for your sub-par disclosure.” This is not to say that issuers should not file 8K’s pushing back against ISS, but that the tactic should focus on clarifying the earlier disclosure from the proxy statement not railing against ISS or Glass Lewis.

In issuers’ defense, while many major investment firms and the governance advocates spend the time and money necessary to review the information from the proxy advisory firms they subscribe to, they are also willing and able to engage with companies and importantly are open to voting with the board and against the recommendation of the proxy advisory firms. However, far too many institutional investors use the proxy advisory firms as a shield against undertaking investment in the staff and resources necessary to make informed decisions – that is the issue requiring attention from investors, issuers and regulators.

June 21, 2011

Paychecks as Big as Tajikistan

Broc Romanek, CompensationStandards.com

Yes, Im happy that I’ve got a quote in this interesting column in Sunday’s NY Times by Gretchen Morgenson – but it’s also a piece worth reading as she analyzes a fascinating report that compares CEO pay with a number of different metrics:

WHEN does big become excessive? If the question involves executive pay, the answer is “often. “But despite the reams of figures about pay in any given year, shareholders often have to struggle to put those numbers into perspective. Companies typically hold up pay from previous years as a benchmark, but just how this paycheck stacks up against, say, a company’s earnings or stock market performance is rarely laid out.

Investors can run the numbers themselves, of course, but it’s a pretty laborious process. As a result, pay for most public companies’ top executives exists in a sort of vacuum, as far as investors are concerned. Shareholders know they pay a lot for the hired help, but a lot compared with what?

Answers to that question come fast and furious in a recent, immensely detailed report in The Analyst’s Accounting Observer, a publication of R. G. Associates, an independent research firm in Baltimore. Jack Ciesielski, the firm’s president, and his colleague Melissa Herboldsheimer have examined proxy statements and financial filings for the companies in the Standard & Poor’s 500-stock index. In a report titled “S.& P. 500 Executive Pay: Bigger Than …Whatever You Think It Is,” they compare senior executives’ pay with other corporate costs and measures.

It’s an enlightening, if enraging, exercise. And it provides the perspective that shareholders desperately need, particularly now that they are being asked to vote on corporate pay practices.

Let’s begin with the view from 30,000 feet. Total executive pay increased by 13.9 percent in 2010 among the 483 companies where data was available for the analysis. The total pay for those companies’ 2,591 named executives, before taxes, was $14.3 billion. That’s some pile of pay, right? But Mr. Ciesielski puts it into perspective by noting that the total is almost equal to the gross domestic product of Tajikistan, which has a population of more than 7 million.

Warming to his subject, Mr. Ciesielski also determined that 158 companies paid more in cash compensation to their top guys and gals last year than they paid in audit fees to their accounting firms. Thirty-two companies paid their top executives more in 2010 than they paid in cash income taxes.

The report also blows a hole in the argument that stock grants to executives align the interests of managers with those of shareholders. The report calculated that at 179 companies in the study, the average value of stockholders’ stakes fell between 2008 and 2010 while the top executives at those companies received raises. The report really gets meaty when it compares executive pay with items like research and development costs, and earnings per share.

The report, for instance, compared earnings per share with cash pay — just salary and bonus, if there is one. It identified 24 companies where cash compensation last year amounted to 2 percent or more of the company’s net income from continuing operations. Topping this list is Allergan Inc., the health care concern whose top executives received, after taxes, an estimated $2.6 million in salaries last year. That amounted to 50 percent of what the company earned from continuing operations, the report said. Caroline Van Hove, an Allergan spokeswoman, said that the salaries were large when compared with net income in 2010 because one-time charges reduced earnings significantly that year; in previous years, she noted, earnings were far higher than executives’ pay. She also said the company’s C.E.O. had not received an increase in salary over the past three years.

Moving on to R.& D. costs, the report examined the 62 technology companies in its sampling that reported such an expense, excluding certain costs associated with acquisitions. Mr. Ciesielski found that the median level of executive pay was equal to 5.3 percent of these companies’ R.& D. expenditures. Topping the pack was Jabil Circuit, a manufacturer of electronic circuits and boards for computer, communications and automotive markets. In 2010, its $27.7 million in total executive pay almost matched the $28.1 million it spent on R.& D. While last year may have been an outlier, over the past four years, Jabil’s pay equaled 57.2 percent of the amount it spent on research and development. Jabil did not respond to a request for comment.

Finally, there’s the comparison of executive pay with market capitalization. As Mr. Ciesielski noted, this calculation provides the biggest shock value. Eleven companies analyzed in the report gave top executives a combined pay package amounting to 1 percent or more of the companies’ average market value over the course of the year. The Janus Capital Group, the mutual fund concern, topped the list, with pay totaling almost $41 million for five executives. This accounted for 1.95 percent of the company’s average market value over 2010. “To earn their keep,” the report said, “managers would have to create stock market value in the full amount of their pay.” The executives at Janus failed to increase value in 2010, when the stock closed out the year roughly where it had begun it. This year, the company’s shares are down almost 30 percent. Janus declined to comment.

Mr. Ciesielski says he believes that shareholders need more context when it comes to pay practices — and that rule makers should improve pay reports. “The disclosures really are not sufficient to get people fired up,” he said in an interview last week, “unless they add up the compensation and find out how it relates to other things.” “We need a different model,” he added. “There is a real lack of information here about how shareholders’ funds are being managed.”

THIS may explain why shareholders at annual general meetings so rarely vote against pay practices. Broc Romanek, who is editor of CompensationStandards.com, said that a majority of shareholders at only 34 companies, or 2 percent of those that have held votes so far this year, have rejected executive pay packages.

If shareholders could size up the impact of pay on a company’s operations, they’d be more informed, Mr. Ciesielski said. For example, why not show a company’s total executive pay against its overall labor costs? Or disclose top pay as a percentage of marketing expenditures, if that is what propels a company’s results? “How does executive pay relate to the basic drivers of what makes the company work?” Mr. Ciesielski asked. “We should be exploring that kind of information.”

June 20, 2011

Webcast: “The Latest Compensation Disclosures: A Proxy Season Post-Mortem”

Broc Romanek, CompensationStandards.com

Tune in tomorrow for the CompensationStandards.com webcast – “The Latest Compensation Disclosures: A Proxy Season Post-Mortem” – to hear Mark Borges of Compensia, Dave Lynn of CompensationStandards.com and Morrison & Foerster and Ron Mueller of Gibson Dunn analyze what was (and what was not) disclosed this proxy season.

June 17, 2011

Last Call: Early Bird Discount for our “Say-on-Pay Intensive” Pair of Conferences

Broc Romanek, CompensationStandards.com

There is only one week left for the early bird discount for our annual package of executive pay conferences to be held on November 1st-2nd in San Francisco and by video webcast: “Tackling Your 2012 Compensation Disclosures: 6th Annual Proxy Disclosure Conference” and “The Say-on-Pay Workshop Conference: 8th Annual Executive Compensation Conference.” Save by registering by Friday, June 24th at our early-bird discount rates. Note this early-bird discount will not be extended.

As you can see from our agendas, this year’s pair of Conferences (for one low price) will be workshop-oriented more than ever before in an effort to provide the practical guidance that you need in the new say-on-pay world that we live in:

1. November 1st’s “Tackling Your 2012 Compensation Disclosures: 6th Annual Proxy Disclosure Conference” includes:

– Say-on-Pay Disclosures: The Proxy Advisors Speak
– Say-on-Pay: The Executive Summary
– Drafting CD&A in a Say-on-Pay World
– The In-House Perspective: Changing Your Processes for ‘Say-on-Pay’
– Getting the Vote In: The Proxy Solicitors Speak
– Handling the New Golden Parachute Requirement
– The Latest SEC Actions: Compensation Advisors, Clawbacks, Pay Disparity & Pay-for-Performance
– Dealing with the Complexities of Perks
– Conducting – and Disclosing – Pay Risk Assessments
– Say-on-Frequency & Other Form 8-K Challenges
– How to Handle the ‘Non-Compensation’ Proxy Disclosure Items

2. November 2nd’s “The Say-on-Pay Workshop: 8th Annual Executive Compensation Conference” includes:

– SEC Chair Mary Schapiro’s Keynote
– Say-on-Pay Shareholder Engagement: The Investors Speak
– Say-on-Pay: The Proxy Advisors Speak
– How to Work with ISS & Glass Lewis: Navigating the Say-on-Pay Minefield
– Putting Your Best Foot Forward: How to Ensure Your Pay Practices Pass
– Say-on-Pay: Director (and HR Head) Perspectives
– Failed Say-on-Pay? Lessons Learned from the Front
– Say-on-Pay: Best Ideas for Putting It All Together

June 16, 2011

A Sixth Say-on-Pay Lawsuit

Broc Romanek, CompensationStandards.com

Last week, a sixth company that failed to garner majority support for their say-on-pay was sued – Hercules Offshore in a district court in Texas (here’s the complaint). We continue to post pleadings from these cases in our “Say-on-Pay” Practice Area.

Yesterday, I traded tweets with someone regarding the probability that all companies that fail to earn majority support will be sued. I’m not convinced that will happen since these cases are brought in such diverse venues and by different plaintiff’s firms. Does anyone know of any guiding hand behind the scenes of these six lawsuits?

It’s also interesting to note that I haven’t seen a single law firm memo yet about these say-on-pay lawsuits even though it appears they are the talk of the town whenever I am out and about. Let me know if you see one…

June 15, 2011

Survey: Executive Stock Ownership Policies

Logan Carr and Cimi Silverberg, Frederic W. Cook & Co.

Recently, we completed this survey of executive stock ownership policies. Stock ownership policies for executives have become virtually universal among large companies. Although the most prevalent approach continues to be the traditional multiple-of-salary guideline, use of retention ratios in combination with traditional guidelines continues to gain prevalence. Holding periods, whether in combination with traditional guidelines or stand-alone, are less prevalent, but institutional investor advisory groups, such as ISS, are encouraging companies to adopt them. Hold-beyond-retirement policies have not yet been widely embraced, but this type of ownership policy could emerge as a corporate governance “best practice.”

Read our survey for more statistics and analysis of the trends that we found, such as this breakdown regarding the prevalence of types of stock ownership policies:

June 14, 2011

More on “Say-on-Pay Failures: Differences for Smaller vs. Larger Companies”

Broc Romanek, CompensationStandards.com

Quite a few members weighed in on my recent blog regarding how it appeared that the smaller companies were failing to get majority support for their say-on-pay compared to larger companies. One group of members remind us that the truly small companies have not yet even been required to put say-on-pay on the ballot as the SEC gave them a two-year exemption when it adopted the say-on-pay rules.

And then there are those that challenged the assumption that smaller companies were leading the way in failures altogether. For example, Ken Bertsch, head of the Society of Corporate Secretaries, provides this useful analysis of the numbers:

By my numbers, 32 proposals that failed to receive majority votes by my count include three large-caps (about 1.0% of those with market cap over $10 billion), nine mid-caps (1.3% of companies with $2 billion to $10 billion in market cap) and 18 small-caps (1.0% of companies with $112 million to $2 billion in market cap).

The numbers are small, but at least on the surface do not support a view that small-caps face greater challenges in the vote. Mid-caps do seem to have more losing votes, however, although a the small numbers make it difficult to make have much confidence in assertions at this point. Still, maybe less investor outreach at firms below large-cap levels does have an impact, but balanced at smaller companies by greater concentration of ownership (and more inside ownership).