The Advisors' Blog

This blog features wisdom from respected compensation consultants and lawyers

April 23, 2015

SEC to Propose Pay-for-Performance Rules on Wednesday

Broc Romanek, CompensationStandards.com

The SEC just calendared an open Commission meeting to finally propose the pay-for-performance rules as required by Dodd-Frank on Wednesday, April 29.

Early bird expires tomorrow. These proposed rules will be among many topics that Corp Fin Director Keith Higgins & other experts will be talking to at our popular Conferences – “Tackling Your 2016 Compensation Disclosures: Proxy Disclosure Conference” & “Say-on-Pay Workshop: 12th Annual Executive Compensation Conference” – to be held October 27-28th in San Diego and via Live Nationwide Video Webcast. Register now. Here are the agendas – 20 panels over two days, including:

– Keith Higgins Speaks: The Latest from the SEC
– Proxy Access: Tackling the Challenges
– Disclosure Effectiveness: What Investors Really Want to See
– Pay Ratio: What Now
– Peer Group Disclosures: The In-House Perspective
– How to Improve Pay-for-Performance Disclosure
– Creating Effective Clawbacks (and Disclosures)
– Pledging & Hedging Disclosures
– The Executive Summary
– The Art of Communication
– Dave & Marty: Smashmouth
– Dealing with the Complexities of Perks
– The Big Kahuna: Your Burning Questions Answered
– The SEC All-Stars: The Bleeding Edge
– The Investors Speak
– Navigating ISS & Glass Lewis
– Hot Topics: 50 Practical Nuggets in 75 Minutes

Early Bird Rates – Act by April 24th: Huge changes are afoot for executive compensation practices with pay ratio disclosures on the horizon. We are doing our part to help you address all these changes – and avoid costly pitfalls – by offering a special early bird discount rate to help you attend these critical conferences (both of the Conferences are bundled together with a single price). So register by April 24th to take advantage of the 33% discount.

April 23, 2015

CD&A Template: CFA Institute Has Its 2.0

Broc Romanek, CompensationStandards.com

Last October, I blogged it was coming – and now it’s here (albeit a bit late for this proxy season). The CFA Institute has updated its CD&A Template, last issued in 2011. Here’s a blog from Matt Orsagh explaining the changes – particularly focusing on how the updated Template supports better pay-for-performance storytelling…

April 21, 2015

Delaware Supreme Court Affirms Dismissal Over Alleged Stock Plan Violation

Broc Romanek, CompensationStandards.com

As noted in this Morris Nichols memo, in an order issued on March 6, 2015 in Friedman v. Khosrowshahi, the Delaware Supreme Court affirmed the Court of Chancery’s dismissal of a breach of fiduciary claim relating to an alleged violation of Expedia’s stock incentive plan. The Supreme Court upheld the Court of Chancery’s finding that the complaint failed to allege any violation of the Plan because (1) the board acted on a reasonable interpretation of the Plan’s terms and (2) to the extent the terms of the Plan were ambiguous, the Plan expressly gave the board authority to resolve any ambiguity.

April 20, 2015

Summary Comp Table: In the News

Broc Romanek, CompensationStandards.com

Here’s news from this Bloomberg article:

Jarden Corp.’s Executive Chairman Martin Franklin is poised to become one of the highest-paid U.S. executives for 2014 thanks to a $74 million performance award that the consumer-brands company granted him last year and recorded as having no value. The grant includes 1.8 million restricted shares that are deemed “improbable” to vest in full because the underlying performance criteria — annual net sales of $10.5 billion and adjusted earnings-per-share of $4 by Dec. 31, 2018 — are unlikely to be achieved, the board’s compensation committee wrote in a March 30 preliminary proxy filing.

The shares, worth $73.9 million on the day they were granted, are listed with Franklin’s other equity awards in the summary compensation table with no value. In a footnote, Jarden cites a Financial Accounting Standards Board rule that advises companies to value performance-based equity grants based on the probability that the targets will be met. “This grant-approach appears to allow a company to skirt the summary compensation table disclosure,” Ron Bottano, a vice president at compensation consultant Farient Advisors LLC, said in an e-mail. “It does not strike me as best practice.” Jarden, based in Boca Raton, Florida, declined to comment on specific questions about its treatment of the grant.

The company, which owns a collection of brands including Yankee Candle, Rawlings baseball gear and Bicycle playing cards, granted Franklin a similar award in 2010 that it also deemed improbable to vest due to its performance criteria, according to filings. It vested in full when the target was met in 2013.

‘Aspirational Targets’

The award was paid out last year and allowed Franklin to take home 2.25 million shares valued at $120 million as of Monday’s close in New York. The company recorded a $33.6 million expense for the 2010 grant, which also included shares for Vice Chairman Ian Ashken and Chief Executive Officer James Lillie, in its 2012 annual report. That’s because the likelihood of achieving the performance goals “was deemed probable” in the fourth quarter of that year, according to a footnote in Jarden’s April 15, 2013 proxy filing. The grant never appeared in any summary compensation tables with a value larger than zero. “Jarden has consistently set long-term aspirational targets to drive performance,” the company said in an e-mailed statement. “The compensation that Mr. Franklin, Mr. Ashken and Mr. Lillie received in 2014 reflects the achievement of this long-term goal.”

‘Relatively Uncommon’

Jarden posted revenue of $8.29 billion and adjusted earnings-per-share of $2.70 last year, according to a regulatory filing. For the new grant to vest in full, the company must meet the revenue and EPS goals detailed in the preliminary proxy. Achieving those goals was considered “improbable” for reporting purposes, according to the March 30 preliminary proxy filing, enabling the company to assign no fair value to the 1.8 million shares in the summary compensation table. “This is relatively uncommon,” Ken Shaw, a professor of accounting at the University of Missouri’s Robert J. Trulaske Sr. College of Business, said by phone. “I would think that a CEO or CFO, all else equal, prefers targets that may be challenging but achievable.” Per-share earnings excluding some items are projected to be $4.14 in fiscal year 2018, according to the average estimate of four analysts surveyed by Bloomberg. Jarden’s brands also include Coleman camping gear, Breville kitchen appliances and Crock-Pot slow cookers.

‘Very Reasonable’

The company’s history of buying well-known consumer brands and quickly improving their profitability makes the revenue and earnings targets seem “very reasonable,” Stephanie Wissink, senior analyst at Piper Jaffray & Co. in Minneapolis, said in a telephone interview. “The interest rate favorability allows them to stretch up into bigger acquisitions,” Wissink said. “They’re actually probably pacing ahead of 2018.”

Jarden is on track to meet both targets even without making any additional deals, Charles Strauzer, senior managing director at White Plains, New York-based CJS Securities Inc., said by phone. CJS has received banking fees from Jarden. “If this kind of growth rate continues, you could easily get there,” Strauzer, who owns shares in the company, said. “If they can find an acquisition or two along the way, you could see that accelerate.” The $73.9 million grant would put Franklin’s total reported pay for 2014 at about $96 million, according to the proxy.

Yankee Candle

Between 2010 and 2014, Jarden’s annual revenue grew by 37 percent, or $2.26 billion, as the company spent more than $3.39 billion of its cash on at least one dozen acquisitions including Rexair Holdings Inc., which makes Rainbow vacuum cleaners, and Yankee Candle Investments LLC. The company has struggled in the past to persuade investors about its executive pay practices. More than 40 percent of voting shareholders have rejected its executive compensation program in two out of its three most recent Say-on-Pay votes held at annual meetings. Approval rates below 70 percent are generally considered “problematic” and should prompt directors to talk with shareholders to understand their concerns with the company’s pay program, said Ann Yerger, executive director at the Council of Institutional Investors.

April 17, 2015

CEO Drastically Cuts Own Pay & Raises Pay of All His Employees

Broc Romanek, CompensationStandards.com

Here’s the intro to this NY Times article that everyone is talking about:

The idea began percolating, said Dan Price, the founder of Gravity Payments, after he read an article on happiness. It showed that, for people who earn less than about $70,000, extra money makes a big difference in their lives.

His idea bubbled into reality on Monday afternoon, when Mr. Price surprised his 120-person staff by announcing that he planned over the next three years to raise the salary of even the lowest-paid clerk, customer service representative and salesman to a minimum of $70,000. “Is anyone else freaking out right now?” Mr. Price asked after the clapping and whooping died down into a few moments of stunned silence. “I’m kind of freaking out.”

If it’s a publicity stunt, it’s a costly one. Mr. Price, who started the Seattle-based credit-card payment processing firm in 2004 at the age of 19, said he would pay for the wage increases by cutting his own salary from nearly $1 million to $70,000 and using 75 to 80 percent of the company’s anticipated $2.2 million in profit this year. The paychecks of about 70 employees will grow, with 30 ultimately doubling their salaries, according to Ryan Pirkle, a company spokesman. The average salary at Gravity is $48,000 a year.

April 16, 2015

Hillary Clinton Blasts CEO Pay in 1st Campaign Stop

Broc Romanek, CompensationStandards.com

Here’s news from this Reuters article:

Hillary Clinton, under pressure from the left wing of her Democratic Party to aggressively campaign against income inequality, voiced concern about the hefty paychecks of some corporate executives in an email to supporters. Striking a populist note, Clinton, who announced on Sunday she was running for president in 2016, said American families were still facing financial hardship at a time “when the average CEO makes about 300 times what the average worker makes.”

In a tightly scripted campaign launch in which there were few surprises, the comments were unexpected, at least by progressives, who saw them as an early sign she may shift away from the centrist economic policies pursued by her husband, former President Bill Clinton. “I definitely see the push from the left wing, which I think is great,” said Jared Milrad, a Clinton supporter who appeared in a video launching her campaign for the presidency.

Milrad said he saw the populist rhetoric as a sign that Clinton “has been listening” to backers such as himself who want her to embrace some of the economic policies pushed by Senator Elizabeth Warren, a hero of liberal Democrats. Warren favors tighter regulation of big banks and a bolstering of the social safety net.

PAY GAP WIDENING

The enthusiasm of some progressives was tempered by the fact that they have yet to see the details of Clinton’s policy proposals. “So far we don’t know very much,” said Zephyr Teachout, a one-time New York gubernatorial candidate. “I hope Clinton clarifies where she stands on these issues.” Leo Gerard, international president for the United Steelworkers union, was also guarded. “I think it’s too early to make any judgments on what I would call the very short opening statement, and we’ll see what happens as we go forward,” Gerard told reporters at a conference of the BlueGreen Alliance, a coalition of large labor unions and environmental groups.

The gap between the pay of chief executives from major corporations has skyrocketed over the past several decades. In 1965, CEOs earned about 20 times what a typical worker brought home, according to research by the Economic Policy Institute, a liberal think tank. In 2013, CEO compensation was nearly 300 times the pay of the average worker, the EPI study said.

Economic inequality has been a top campaign theme for Democrats for the past several years, including for President Barack Obama. While he often talks about the need to address economic inequality, he is frequently cautious about appearing to lash out at corporations and their executives.

In 2009, for example, he bashed “fat cat” Wall Street bankers for accepting big pay packages in the aftermath of the 2007-2009 financial crisis at a time when many Americans were suffering hardship. Faced with a barrage of criticism from Republicans, Obama stressed he was not anti-business.

Obama’s efforts to walk a fine line on economic populism highlight the balancing act that Clinton will face. While such rhetoric stirs enthusiasm on the left, she risks irking wealthy donors, including her backers on Wall Street.

Clinton supporters on Wall Street reacted with equanimity on Monday when asked about her vow to level the playing field for the middle class. “She will address inequality. The mistake would be to just assume that that’s populist,” said Lynn Forester de Rothschild, the CEO of the family investment company E.L. Rothschild and a Clinton supporter. “If rich people are not worried about today’s levels of income inequality, then they are stupid,” she said. Paul Beirne, a principal at Bernstein Global Wealth Management who supports Clinton, said there had been some movement toward better accountability in CEO pay, but more work was needed.

Meanwhile, this article notes how Barney Frank is disappointed in how say-on-pay has not had more influence on changing executive pay, particularly citing fund managers…

April 15, 2015

Study: CEOs Reap $6 Billion More Than Estimated Due to Soaring Stock Market

Broc Romanek, CompensationStandards.com

Here’s an excerpt from this Reuters article:

CEOs at large U.S. companies collectively realized at least $6 billion more in compensation than initially estimated in annual disclosures in the five years after the financial crisis first hit, according to a Reuters analysis. The reason for the windfall: the soaring value of their stock awards. About 300 CEOs who served throughout the 2009-2013 period at S&P 500 companies together realized about $22 billion in compensation in the form of pay, bonuses and share and option grants, or an average of $73 million each, figures provided by executive compensation data firm Equilar show. That compares to about $16 billion initially reported in annual company summary compensation tables, which include estimates for the value of stock grants based on the price of shares at the time of awards.

The comparison does not include pensions and perks such as country club memberships and use of corporate jets for private use. The study also excludes rewards reaped by other top executives, such as chief financial officers and chief operating officers, and compensation for CEOs who did not serve the full five years.

Further gains in share prices in 2014 and so far this year will only have increased the gap between the annual disclosures and the amount actually derived from the awards, with the full picture for last year only becoming clear over the next couple of months. The S&P 500’s total return, including dividends, was 166 percent from the end of 2008 through Monday of this week, according to S&P Dow Jones Indices.

April 14, 2015

Deadline Ends Soon: 33% Early Bird Discount for Our Executive Pay Conferences

Broc Romanek, CompensationStandards.com

You should register soon for our popular conferences – “Tackling Your 2016 Compensation Disclosures: Proxy Disclosure Conference” & “Say-on-Pay Workshop: 12th Annual Executive Compensation Conference” – to be held October 27-28th in San Diego and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days, including:

– Keith Higgins Speaks: The Latest from the SEC
– Proxy Access: Tackling the Challenges
– Disclosure Effectiveness: What Investors Really Want to See
– Pay Ratio: What Now
– Peer Group Disclosures: The In-House Perspective
– How to Improve Pay-for-Performance Disclosure
– Creating Effective Clawbacks (and Disclosures)
– Pledging & Hedging Disclosures
– The Executive Summary
– The Art of Communication
– Dave & Marty: Smashmouth
– Dealing with the Complexities of Perks
– The Big Kahuna: Your Burning Questions Answered
– The SEC All-Stars: The Bleeding Edge
– The Investors Speak
– Navigating ISS & Glass Lewis
– Hot Topics: 50 Practical Nuggets in 75 Minutes

Early Bird Rates – Act by April 24th: Huge changes are afoot for executive compensation practices with pay ratio disclosures on the horizon. We are doing our part to help you address all these changes – and avoid costly pitfalls – by offering a special early bird discount rate to help you attend these critical conferences (both of the Conferences are bundled together with a single price). So register by April 24th to take advantage of the 33% discount.

April 13, 2015

Pay Ratio: Making the News

Broc Romanek, CompensationStandards.com

With SEC Chair White recently indicating that the pay ratio rules will indeed get moved this year, it’s worth noting this Gretchen Morgenson column from yesterday’s NY Times:

Investors who take the time to wade through corporate reports on what their top executives are paid are all too familiar with the problem of information overload. But no matter how hard they look, there is one figure investors won’t find in the jumble of tables, charts and dollar signs in a proxy filing. And that is a comparison of what the company paid its chief executive with what its typical employee earned.

This piece of the compensation puzzle is known as the C.E.O. pay ratio, and it was supposed to have been included in public company disclosures by now. In 2010, Congress approved the Dodd-Frank law requiring such information to be an element in each year’s pay disclosures. The idea was to expose how wide the gap was between a company’s chief executive and its rank-and-file workers. To meet that requirement, the Securities and Exchange Commission in 2013 proposed a specific pay-ratio rule that companies disclose the median annual total compensation of all their employees — the level at which half of them earn more and half earn less — and compare that figure with the amount awarded to the chief executive.

How much does a C.E.O. make compared with a typical employee? To get a rough idea, the Center for Economic and Policy Research calculated the gap for some highly paid C.E.O.s. From left: Starbucks’s Howard Schultz, Disney’s Robert Iger, and Oracle’s Lawrence Ellison. “The pay ratio was designed to embarrass, but I think it’s actually a pretty good thing,” said Charles Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware. “The C.E.O.’s pay has to have a relationship to the pay scheme of everyone else, and I think it will force companies to rethink how they design their compensation packages.” But the rule ran into a buzz saw of opposition. Deploying the usual arguments — such a rule would be too costly and burdensome to calculate and wouldn’t provide meaningful information to shareholders — corporate lobbyists have so far kept the S.E.C.’s proposal in limbo.

Academic research shows that the worker-to-C.E.O. gulf has been widening. According to a 2014 study by Alyssa Davis and Lawrence Mishel at the Economic Policy Institute, a left-leaning advocacy group in Washington with a reputation for rigorous studies, chief executive pay as a multiple of the typical worker’s pay rocketed from an average of 20 times in 1965 to 295.9 in 2013.

Even though the S.E.C. has not approved the rule, that doesn’t mean we can’t calculate rough estimates for C.E.O. pay ratios. So I asked Dean Baker, co-founder of the liberal Center for Economic and Policy Research, to do just that for a dozen of the highest-paid executives. First, Equilar, the compensation analytics firm in Redwood City, Calif., provided figures on executive compensation in 2014 at a number of the nation’s largest companies. Filings from 64 companies that had submitted their proxies by March 30, 2015, were included in this exercise. Compensation consisted of base salary, cash bonuses, perquisites and the grant-date value of stock and option grants. Equilar found that among these 64 companies, the median C.E.O. pay package was $11.5 million, down 4 percent from last year. (A subsequent analysis, the Equilar 100 C.E.O. Pay Study, using proxies filed by April 3, found the median package was $14.3 million, an almost 5 percent increase from last year.)

Using the March 30 figures, Mr. Baker, an expert in labor economics, worked with Nicholas Buffie, a research assistant, focusing on the 12 highest-paid executives in the group. They estimated the median wage for all the other employees of each company and compared that with the corresponding C.E.O.’s total 2014 compensation. These are imprecise and rough estimates. Given the absence of detail companies provide about their work force — such as how many employees work in the United States versus abroad — it is impossible for any outsider to nail down a precise number.

Nevertheless, Mr. Baker said he felt comfortable with the median wage estimates, which were based on figures from Occupational Employment Statistics, a program of the Bureau of Labor Statistics, or from Payscale, a compensation analytics firm in Seattle. “Clearly the big winners in the economy over the last three to four decades have been those at the top,” Mr. Baker said. “This is one way to illustrate that.”

Several of the companies objected to the figures when asked to comment on them. But only one, Honeywell, provided a precise median wage figure of its own: $58,000, versus the $31,000 that Mr. Baker calculated. Some companies also argued that stock and option grants are paid out over time, not all in one year, skewing pay figures higher for their chief executive.

The company with the widest pay gap on the list was Walt Disney, whose chief executive, Robert Iger, received $43.7 million last year. Given Mr. Baker’s estimate that Disney’s median worker received $19,530 last year, that translates to a C.E.O. multiple of 2,238 to one. A Disney spokesman said that 92 percent of Mr. Iger’s compensation was based on the company’s financial performance, which was outstanding in 2014.

Second on the list was Satya Nadella, Microsoft’s chief. His pay package of $84.3 million last year placed him at 2,012 times the estimate of $41,900 for the median employee’s earnings at Microsoft. A Microsoft spokesman disputed the calculation, saying that a typical employee at the company earned “well north of $100,000,” and that much of Mr. Nadella’s pay would be realized only in coming years — if the company performed well. He contended that a better measure of Mr. Nadella’s pay for 2014 was $22.75 million. Using Microsoft’s figures, Mr. Nadella’s pay ratio would still be at least 150 to one.

Oracle’s founder, Lawrence J. Ellison, ranks third on the pay gap list: 1,183 to one by Mr. Baker’s calculations. Oracle’s spokeswoman declined to comment.

Next up was Steven M. Mollenkopf, chief executive of Qualcomm, whose $60.7 million in compensation puts him at 1,111 times the median worker estimate at the San Diego company, which makes wireless telecommunication equipment and software. A Qualcomm spokeswoman said only $28.7 million of Mr. Mollenkopf’s package should be used for a pay comparison. This would lower his ratio to 526 to 1.

Howard D. Schultz, founder and chief executive of Starbucks, ranked fifth. He received $21.5 million last year, or 1,073 times the typical barista’s salary. A company spokeswoman said its executive compensation was linked to company performance, “and our board has determined that Howard Schultz’s pay reflects both competitive considerations and value to the company.” She added that lower-level workers receive a wide array of benefits in addition to their salaries.

After Mr. Schultz, the pay gaps fall to 682 for Richard D. Fairbank at Capital One; 396 for David M. Cote at Honeywell, using its number; 340 for Rupert Murdoch at 21st Century Fox; 316 for Meg Whitman at Hewlett-Packard; 296 for W. James McNerney Jr. at Boeing; 291 for AT&T’s chief executive, Randall L. Stephenson, and 284 for Alex Gorsky, chief executive of Johnson & Johnson. A Honeywell spokesman said “more than 90 percent of our C.E.O.’s pay is variable, at-risk and long term,” emphasizing profit growth and stock appreciation.

An AT&T spokesman said 92 percent of the C.E.O.’s target compensation was tied to company performance, including stock price. Officials at the other companies declined to comment or didn’t return calls.

Again, these are rough estimates. But without an S.E.C. rule, the public companies that reveal their chief executives’ pay over the next few months will not have to account for the pay ratio comparison with their workers. That’s too bad. “These C.E.O.s are smart, hard-working people,” Mr. Baker said. “But there is no basis for believing that if companies don’t pay $84 million they won’t attract top talent. You go back 40 years and they had smart, hard-working people too. They were well-paid, but not like they are today.”

April 10, 2015

Amalgamated Announces More Agreements to Limit Parachute Payments

Broc Romanek, CompensationStandards.com

Last week, Amalgamated Bank announced that five major energy companies have agreed to new measures that will limit potential golden parachutes for executives in the event of a merger or other change of company control. Amalgamated has negotiated several similar agreements with major companies since pioneering the first shareholder resolution on the topic in 2011 and this announcement coincides with news that CII has approved a new policy to urge the same policies at companies across the market.