The Advisors' Blog

– Broc Romanek, CompensationStandards.com

In this article from “Directors & Boards,” Bruce Ellig gives his views on the mix of pay elements that CEOs should be getting…

– Chris Cernich, ISS Contested Meeting Research

In November 2013, ISS reported on an escalating phenomenon of boards adopting a one-size-fits-all bylaw prohibiting any dissident nominees who had received third party compensation for standing as a candidate in a proxy contest–whether or not this compensation would have continued once the nominee was elected to the board–from being seated as a director.

It now appears that many of the boards which adopted this “one-size-fits-all” bylaw have taken these shareholder votes on directors as a referendum on boards’ unilateral adoption of the bylaw, and begun to respond.

Just prior to issuing the proxy statement for its 2014 annual meeting, the board of Schnitzel Steel rescinded the bylaw entirely. The Rockwell Automation board rescinded its bylaw two days after a third of shareholders withheld votes from directors at the 2014 annual meeting. Sixteen other issuers have now followed suit. In aggregate, more than half the companies which adopted this bylaw have rescinded it in the four months since the Provident meeting, while only one additional issuer–CST Brands–has adopted it.

The ability of so many boards to adopt and then quickly rescind the bylaw raises the question whether those boards were, in fact, so firmly committed to the idea in the first place. Interestingly, appeal of the bylaw does not appear to lie in the direct experience of having faced an activist campaign: only nine of the 34 adopters (37 percent) had even faced a public activist campaign over the past six years. Just one–International Game Technology–had gone through a proxy contest, and yet the bylaw, had it been in place, would not have barred any of the three dissident nominees in that contest from service on the IGT board.

[Broc’s note: Earlier this week, CII send this letter to the SEC regarding more disclosure when it comes to 3rd-parties paying directors. Also see my 2-minute video on this topic.]

– Broc Romanek, CompensationStandards.com

Here’s an interesting blog by Steven Kittrell of McGuireWoods (Mike Melbinger has blogged about this too):

There is little guidance about whether and how an executive who has compensation clawed back can take a tax deduction for the amount repaid. A new case reported by BNA today involving an insider trading forfeiture may show one path to a deduction for claw backs too. The case involves Joseph Nacchio, the former CEO of Qwest. After being convicted of insider trading, Nacchio forfeited $44.6 million in 2007 that he had realized from the insider stock sales in 2001. He amended his 2007 return to deduct the $44.6 million under Code Section 165 as a loss and also claimed a credit of $18 million under Code Section 1341 for the taxes originally paid on the stock sales. In denying summary judgment for either side, the Court of Federal Claims held that Nacchio might be entitled to the credit under Code Section 1341 if he subjectively believed that he had a claim of right to the forfeited gain.

Applying Code Section 1341 to a compensation claw back, most executives would have had a subjective belief that the incentive compensation was appropriately payable in the original year of payment. The IRS might challenge that belief in some cases, such as a claw back due to an accounting restatement based on actions by the executive.

The ability to get a credit for taxes paid in an earlier year on income that has been clawed back would soften the blow of the claw back to an executive. This also seems like the right tax result.

– Broc Romanek, CompensationStandards.com

In this 20-second video, Cap’n Cashbags – a CEO – just hanging out with his fellow CEO pals who serve on his board’s compensation committee – talks about enhancing his pay package:

– Broc Romanek, CompensationStandards.com

In her blog about the AgFeed fraud action, Francine McKenna explores what is meant under Section 304 of Sarbanes-Oxley when it comes down to clawbacks under that section, particularly what is the meaning of a “required” restatement under that law…

– Broc Romanek, CompensationStandards.com

Here are the latest survey results about deferred compensation election timing:

1. Do you have a deferred compensation plan, which includes company stock, for outside directors?
– Yes – 77%
– No – 23%

2. Do you have a deferred compensation plan, which includes company stock, for executives?
– Yes – 48%
– No – 52%

3. Our deadline for allowing outside directors to make stock-based elections for the following year, if your fiscal year-end is December 31 is:
– October 1 – October 31 – 11%
– November 1 – November 15 – 5%
– November 15 – November 30 – 16%
– December 1 – December 15 – 21%
– December 15 – December 31 – 37%
– Earlier in year – 11%

4. Our deadline for allowing executives to make stock-based elections for the following year, if your fiscal year-end is December 31 is:
– October 1 – October 31 – 15%
– November 1 – November 15 – 0%
– November 15 – November 30 – 23%
– December 1 – December 15 – 15%
– December 15 – December 31 – 23%
– Earlier in Year – 23%

5. Do you allow your outside directors to make such an election near year-end for the following year, when they likely have access to year-end earnings projections and results?
– Yes – 50%
– No – 50%

6. Do you allow your executives to make such an election near year-end for the following year, when they likely have access to year-end earnings projections and results?
– Yes – 43%
– No – 57%

Please take a moment to anonymously participate in our “Quick Survey on Pay Ratios” and our “Quick Survey on Proxy Drafting Responsibilities & Time Consumed.”

– Broc Romanek, CompensationStandards.com

Here’s analysis from Mike Kesner of Deloitte Consulting: Many of you probably have heard that one of Coca-Cola’s shareholders is opposed to the company’s new stock plan share authorization, as noted in this article. While I disagree with the arguments made by the shareholder, I believe this is a cautionary tale about fungible share requests.

Here are the facts based on Coca-Cola’s latest proxy:

– Coca-Cola is requesting that shareholders approve a 500 million share request.

– The number of shares being requested represents 11.3% of shares outstanding, which is incredibly high compared to most large cap company share requests.

– Coca-Cola explains that they have been granting 60-73 million shares per year the last 3 years, and that the new authorization should last 4 years.

What they did not explain clearly is that based on a fungible share ratio of 5:1, and the current mix of options and RSUs, a grant of 60 million shares is the equivalent of around 156 million shares (given the higher stock price, they will probably grant less than 60 million shares). They could have also explained the total shares expected to be awarded will be closer to 240 million shares (or 5%-5.5% of shares outstanding, which is much more reasonable). The 500 million shares is a fiction – it assumes all LTI awards are granted as options, which is highly unlikely.

The fungible share idea works well when dealing with ISS’ Shareholder Value Transfer methodology, but some institutional shareholders only look at simple dilution when evaluating the reasonableness of a new share request.

Thus, Coca-Cola retained the flexibility to switch their LTI awards to 100% stock options and may have inadvertently alarmed shareholders that they intend on granting 11.3% of shares to employees, when in fact that is not the case. Instead, they could have asked for 240 million shares (with a sub-limit on restricted shares of 40% or 96 million shares) without setting off alarm bells about excessive dilution.

– Broc Romanek, CompensationStandards.com

Following the theme of my wildly popular videos of “Cool Things in This ’14 Proxy Statement” (see this Prudential one, GE one & Coke one), Equilar sent along this

from Verizon focused on their use of a graphic to demonstrate the payout of their incentive award depending on their performance against their peer group. They’ve used this disclosure before, but it is certainly an interesting way for a company to showcase the payout amounts.

– Broc Romanek, CompensationStandards.com

We have posted the transcript for the recent webcast: “The Top Compensation Consultants Speak.”

Meanwhile, the fine executive compensation lawyers at Winston & Strawn in Chicago – Mike Melbinger & his gang – play homage to the old Hasbro TV commercial in this 40-second video:

– Liz Williams, US Compensation Research, & Natalia Weaver, ISS Corporate Services

The concept of “pay disparity” took a step forward in 2013 when the SEC proposed a new rule, as mandated by Dodd-Frank, which will require most U.S. public companies to disclose the ratio between the “actual” compensation paid to their CEOs as a multiple of the median level of compensation paid to all other employees. Although the proposed rule incorporates considerable flexibility for companies to determine “all employees” median pay, it did not quell debate about the value of pay disparity measures to investors and the public. Academic research continues to be mixed on the issue, including the value of other disparity measures, such as the ratio between pay to the CEO versus the next highest paid executive or the average of all other named executive officers (NEOs).

Initial disclosures of the new pay disparity ratio will likely begin in proxy statements published in 2016, but both investors and issuers have already begun to give it serious consideration. To help investors anticipate how the new pay disparity measure might look, ISS undertook an analysis using data from the Bureau of Labor Statistics (BLS) Current Employment Survey, which contains the monthly and annual average hourly wage for all US employees by sub-industry, industry and sector (not seasonally adjusted). The BLS data classifies industries using the North American Industry Classification System (NAICS); ISS estimated average employee wages by industry and applied these to comparable Global Industry Classification System (GICS) categories in order to compare them to disclosed CEO pay data for S&P 1500 companies and project how the future pay disparity ratios may appear. Additionally, ISS analyzed CEO and NEO pay data within the S&P 1500 universe, to pinpoint ratios between the top executive and other NEOs.

Our research identifies several key findings:

– Based on BLS data, the median ratio of CEO-to-average-employee pay rose significantly during the study period, from 64.3 in 2009 to 87.7 in 2012; however the median in 2009 likely reflects a temporary decline in CEO pay in the wake of the financial crisis, and the ratio climbed more modestly (from about 80 to 88) after that.

– The escalating ratio stems from increases in CEO pay. Median reported pay for S&P 1500 CEOs rose about 30 percent from 2009 to 2012, compared with an increase of less than 6 percent for average annualized employee wages generally. As noted, the biggest jump in CEO pay occurred from 2009 to 2010 (about 21.3 percent), following some decline in 2009; the largest increases in annual employee wages came between 2010 and 2012 (2 percent each year).

– Across all industries, the bottom 50 percent of ratios are notably more concentrated than the upper half, indicating much more variation in CEO-to-average-employee ratios for companies with higher pay disparity.

– There is clear disparity in both the distribution of ratios and median ratios among different industries: Software & Services and Semiconductors, for example, demonstrate both relatively low median ratios as well as lowest overall ranges of CEO-to-employee-pay ratios. Conversely, companies in industries such as Retailing, Food, Beverage & Tobacco, and Household & Personal Products exhibit both relatively high median ratios and some of the highest ratios across all industries.

– While most industries maintained fairly stable median ratios over the period, a few (e.g., Food & Staples Retailing and Consumer Services) experienced significant increases from 2009 to 2012.

– In contrast, median ratios between CEOs and the next highest paid named executive officers (NEOs) across all S&P 1500 companies showed steady albeit limited growth from 2009 to 2012 (from 1.9 to 2.06), with the same trend in all indexes (S&P 500, Midcap, and Smallcap).

– There is also much less variation seen across industries for CEO-to-next-highest-paid-NEO pay disparity than exists with respect to CEO-to-average-employee pay, and generally more even distribution of ratios within industries according to this analysis. In this case, Diversified Financials had the lowest median ratio in 2012 (1.47), while the Materials industry had the highest (2.44)

– Similar results are found when comparing the ratio of CEO pay to the average other NEOs’ pay levels.

Based on the BLS data used in our analysis as a proxy for company-specific pay ratios that will emerge when the new rule takes effect, investors will need to view the ratios in appropriate context within industries, and may find it most useful to monitor changes at the company level or within close peer groups, rather than across firms generally or even within the same broad industry. Notably, concerns raised by both academics and investors in recent years regarding companies’ use of peer benchmarking to set top executives’ pay may intensify if the gap between CEO and median-employee pay continues to outpace changes in disparity between CEO pay and that of other NEOs.