– Broc Romanek, CompensationStandards.com

For those that want to make changes to the peer groups used by ISS and Glass Lewis, the proxy advisors have kicked off their semi-annual update processes, allowing companies to inform them of any peer group changes that will be disclosed in their next proxy statements. The deadlines are:

– ISS – December 11th
– Glass Lewis – December 31st (via Equilar’s site)

– Broc Romanek, CompensationStandards.com

As I have blogged many times (here’s the latest one), the SEC’s Reg Flex Agendas tend to be “aspirational” – and experience bears that out as the SEC often misses its “targeted” deadlines. So no sooner than I blogged about Corp Fin’s silence about the timing of the Four Horsemen rulemakings at the ABA Fall meeting on Friday, the SEC issued its latest Reg Flex Agenda. This Reg Flex Agenda notes that the pay ratio rules would be adopted by October 2015 (same with investment managers disclosing their say-on-pay votes) – and that the clawback, pay-for-performance and hedging rules would be proposed by October 2015 as well. We’ll see if that really happens. Don’t hold your breath…

As noted in this WSJ article, three Republican members of Congress have asked the SEC to slow down on its pay ratio rulemaking.

– Broc Romanek, CompensationStandards.com

Here’s a memo by Frederic W. Cook & Co. entitled “FASB Commences Project to Improve and Simplify Accounting for Stock Compensation under FASB ASC Topic 718.”

– Broc Romanek, CompensationStandards.com

Here’s a blog by McGuireWoods’ Steven Kittrell:

A new The Conference Board report on proxy voting in 2014 reports a decline in shareholder proposals on executive compensation matters. Among Russell 3000 and S&P 500 companies, the 70 compensation-related proposals was down from 86 proposals in 2013. Almost 70% of the proposals involved either requiring equity retention periods or limits on golden parachute payments. A couple of notes:

– There was majority support for 5 of the golden parachute proposals and 1 of the equity retention proposals.
– Support increased for clawback and SERP limit proposals, but measured on a small number of proposals (3 clawback and 2 SERP proposals).
– 2014 saw a complete lack of proposals on tax gross ups (consistent with the decreased use of gross ups).
– The major area of new proposals (6) related to director compensation, however, these were all part of a single director election proxy fight.

– Michael Lovette, ISS Corporate Services

The use of discretionary awards for senior executives has decreased significantly over the past few years. Shareholder attention, increasingly focused on executive compensation in the age of say-on-pay, has prompted marked compensation reform and better disclosure. As shareholders advocate for more performance-based compensation, compensation committees have increasingly turned to defined performance metrics and explicit performance goals to define compensation packages. And to be clear, that has–for the most part–been a dramatic improvement in the state of executive pay structures, and their accompanying disclosures. But have we gone too far?

Discretionary bonuses have been disappearing at a rapid rate. The prevalence of such awards at S&P 400 firms since 2007 has dropped from roughly 25 to 15 percent. But many boards feel that, by not including a discretionary component in the compensation program, they may be abdicating a key responsibility: to subjectively add context to an executive’s compensation package, or to provide judgment in extraordinary situations where the formulas fail. Compensation has become so formulaic that many boards have little room to maneuver in regards to rewarding outstanding performance. What makes up a discretionary award and how can it be incorporated into a company’s compensation program responsibly?

Discretionary awards are compensation that is granted to an executive at the judgment of the Board. Historically, discretionary awards appeared as executive bonuses; today, these discretionary awards more often show up in the Short-Term Incentive (STI) program as an individual performance component or under the Long-Term Incentive (LTI) program as a payout “modifier,” or occasionally, as a one-time grant. (A cynic might even note that some companies could also be implicitly exercising discretion–many times with the executives’ own input–by employing non-GAAP performance metrics.) Often, boards argue that company executives have performed their duties and functions in a way not captured by the executive compensation program, or that they need to motivate and retain executives by granting an additional award, as some of the most common reasons for utilizing discretionary awards. For many shareholders, such justifications, often disclosed in boilerplate format, leave a negative impression of discretionary awards.

Why are discretionary awards viewed negatively? In most cases shareholders are not able to verify that the appropriate discretion was used by the board and, in many investors’ eyes, discretion hasn’t always been used with shareholders’ best interests in mind.

– Broc Romanek, CompensationStandards.com

Here’s analysis from CEOPayRatioWatch.com on a topic that I’ve been waiting for someone to write about: Some companies with workforces outside the U.S. are concerned that data privacy laws in various non-U.S. jurisdictions will adversely impact the cost and practicability of gathering and verifying the data needed to identify the median of the annual total compensation for all employees, as proposed by the SEC in the CEO pay ratio rule.

It seems as though Monolithic Power Systems, Inc. is trying to address this issue partially on a go-forward basis. Looks like they are slipping in a specific reference to the CEO pay ratio rule – here is an excerpt from a grant letter to recipients of options outside the U.S.:

Data Privacy. In accepting this Option:

1. You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, your employer, the Company and its subsidiaries and affiliates for the purpose of implementing, administering and managing your participation in the Plan, as well as for the purpose of the Company’s compliance with Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires certain public companies to calculate and disclose on an annual basis the ratio of the median of the annual total compensation of all employees of an issuer as compared to the annual total compensation of its chief executive officer (the “CEO Pay Ratio”).

2. You understand that the Company and your employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan and complying with the CEO Pay Ratio (“Data”).

3. You understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purpose of implementing, administering and managing your participation in the Plan and for compliance with the CEO Pay Ratio. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan and as is necessary for compliance with the CEO Pay Ratio. You understand that you may, at any time, view the Data, request additional information about the storage processing of the Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.

Source: http://www.sec.gov/Archives/edgar/data/1280452/000143774914019267/ex4-6.htm

– Broc Romanek, CompensationStandards.com

In this blog, Jim McRitchie gives a recap of a recent panel out in Silicon Valley that included three directors…

– Broc Romanek, CompensationStandards.com

In this 90-second video, Mike Esser of Pearl Meyer & Ptrs discusses 4 items that compensation committees can take regarding say-on-pay and pay programs…

– Broc Romanek, CompensationStandards.com

Here’s a blog by Allen Matkin’s Keith Bishop: The Bylaws of many public companies provide for mandatory indemnification of directors and officers (and sometimes other agents as well). Often, Bylaws describe these indemnity obligations as contract rights. For example the Bylaws of one well-known public company state:

The right to indemnification conferred in this Article shall be a contract right.

If Bylaws are contracts, it may be worth considering whether these contracts are in conflict with the company’s other contracts with its officers. Many employment agreements, for example, include integration clauses such as the following:

This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, supersedes all prior and contemporaneous agreements, both written and oral, between the parties with respect to the subject matter hereof, and may be modified only by a written instrument signed by each of the parties hereto.

Does anyone think that this entire agreement clause is just a bit to constrictive?

– Subodh Mishra, ISS Governance Exchange

Six in 10 U.S. companies conducted analyses to assess “how closely” executive pay levels align with company performance, yet nearly two-thirds of those companies did not disclose the results of those analyses in their 2014 proxy statements, according to a recently released Towers Watson survey. The Towers Watson survey found that 60 percent of the 104 U.S. companies polled in September and October conducted a pay-for-performance analysis that compares both the company’s financial performance and pay positioning with those of its peers in the marketplace. Among those companies, nearly two-thirds (63 percent) did not disclose that they conducted an analysis or the results of the analysis in their 2014 proxies. Thirty percent of respondents disclosed the findings of the analysis, while the remaining 7 percent told shareholders they performed the analysis but did not reveal the details, Towers noted in an Oct. 30 statement. In a similar survey two years ago, 44 percent of companies did not tell shareholders that they performed a pay-for-performance analysis.

When asked why they did not disclose the pay-for-performance analysis, just over three-fourths of respondents said they were waiting for forthcoming Securities and Exchange Commission disclosure rules to be issued before doing so, while one-third also said they were concerned about setting a precedent that will require similar disclosure in the future. About two in 10 respondents said the analysis did not yield incrementally valuable information to shareholders, Towers said.

Interestingly, a vast majority of respondents analyze pay-for-performance alignment in ways that may be at odds with what the SEC may require. For example, among companies that conducted a pay-for-performance analysis, nearly all (96 percent) compared their performance to a company-defined peer group. Additionally, the majority of respondents (79 percent) used a three-year period to measure performance. And more than half (60 percent) use a definition of compensation other than that disclosed in the Summary Compensation Table, as required by the SEC.

Companies continued to make changes to their executive pay programs to further strengthen the link between pay and performance, the survey noted. More than four in 10 (43 percent) changed their peer comparison group, while a slightly lower percentage (40 percent) changed the performance measures used to determine incentive payouts. Slightly more than a quarter of the respondents used more demanding performance goals and changed the equity pay mix.