The Advisors' Blog

This blog features wisdom from respected compensation consultants and lawyers

February 23, 2012

Survey: Real CEO Compensation at Big Firms Rose 36% in 2010

Broc Romanek, CompensationStandards.com

A few weeks ago, GMI released its annual CEO Pay Survey , which found that total realized compensation for CEOs in the S&P 500 rose by a median 36.5% for fiscal year 2010. Key findings from this year’s survey include:

– Total realized compensation for CEOs in the S&P 500 rose by a median 36.5%.
– Total realized compensation for all CEOs in the survey rose 27% compared to a 13% increase in total annual compensation.
– Three of the 10 highest paid CEOs of 2010 are from the Health Care Providers & Services industry, including the top two.
– Four of the 10 highest paid CEOs of 2010 were retired or terminated executives receiving exit packages.
– Perks in the S&P 500 rose 11% from 2009 to 2010.
– Three of the five highest paid CEOs of 2010 received single year pension and deferred compensation increases of $14 million.
– More than 70 percent of CEOs received a restricted stock award in 2010 while only 53 percent received stock options.

February 22, 2012

Share Utilization in Fortune 500 Companies

Broc Romanek, CompensationStandards.com

As noted in this Towers Watson memo, in fiscal 2009, equity award practices reversed a multiyear trend of decreasing share usage as companies increased the number of shares granted to make up for some — but not all — of the value lost due to declining share prices during the market turmoil. In many ways, 2010 was a return to the norm as share utilization patterns resembled what we would have expected in 2009 without the economic woes that began in the fall of 2008. A preliminary review of grants awarded in 2011 confirms that utilization continued to stabilize last year.

Each year, Towers Watson reviews equity incentive practices at Fortune 500 companies to examine trends in run rate, long-term incentive (LTI) fair value and overhang. Run rate is the total number of shares awarded during a company’s fiscal year as a percentage of average common shares outstanding. LTI fair value is the sum of reported fair value of annual equity awards granted throughout the year as a percentage of average market capitalization. Overhang is the aggregate number of shares reserved for outstanding awards and future grants as a percentage of total common shares outstanding.

February 17, 2012

Our “Best Practice” Disclosure for Say-on-Pay in 2012

Broc Romanek, CompensationStandards.com

We recently mailed the January-February Issue of The Corporate Executive and it includes pieces on:

– Our “Best Practice” Disclosure for Say-on-Pay in 2012
– Model CD&A Disclosure for a Company Receiving Strong Say-on-Pay Support
– Model CD&A Disclosure for a Company that Received Weak Say-on-Pay Support, or Failed to Achieve Majority Support
– When Is a Tax Cut Not a Tax Cut?
– Follow-Up: Modifying Awards in Response to Say-on-Pay
– Trap for the Unwary: Retirement Provisions in Performance Awards
– Cost-Basis Reporting Update

Act Now: If you are not yet a subscriber, get this issue rushed to you when you try a 2012 No-Risk Trial today.

February 16, 2012

Explaining the Upward Spiral in Executive Compensation

Broc Romanek, CompensationStandards.com

Thanks to Eleanor Bloxham and her “Corporate Governance Alliance Digest” for this blog by Tama Copeman, Chair of the Board of Mid Atlantic Diamond Ventures (tama@alcyone7.com):

Rising CEO compensation frustrates many board members and for good reason: setting CEO pay-above-the-50th percentile broadly leads to unbounded growth in pay. (Similar results will occur if a large portion of companies set aggressive increase targets each year.) Although advisory say-on-pay votes now available to shareholders provide a check, the votes provide a weak check on rising pay.

System dynamics is a methodology for understanding the behavior of complex systems which can be applied to understanding the dynamics of executive compensation. Originally developed by Forrester at MIT Sloan in the 1950s to provide insight into corporate and managerial problems, system dynamics is currently being used by the public and private sectors for policy design, environmental change, economic behavior, project management and supply chain analysis.

The basis of the method is the recognition of feedback, interlocking, and time-delayed relationships among components of a system. A system’s feedback structure drives the dynamics of the system. So-called causal loop diagrams provide a visual representation of the feedback loops in a system and enable the creation of mental models for qualitative analysis.

In a system dynamic of growth, loops with all positive links are self-reinforcing and produce unbounded growth. Balancing loops provide self-correction in the system. They are created when there are an odd number of negative links and are self correcting. John D. Sterman (“Business Dynamics – Systems Thinking and Modeling for a Complex World”, McGraw Hill, 2000) provides many examples of applications of causal loop diagrams.

As a CEO’s compensation is set above the 50th percentile within the peer group, the average of the peer group rises correspondingly. The causal loop model in Figure 1 illustrates self-reinforcing compensation behavior. If the majority of boards employ above 50th percentile pay positioning, the peer-group compensation increases with the rate of growth dependent on the fraction of companies using this strategy. If the majority of boards employ below 50th percentile pay positioning, the peer-group compensation decreases. The latter case is, naturally, less likely. Conversely, as CEO pay increases, say-on-pay concern also increases with a corresponding push to reduce pay. The causal loop model illustrates self-correcting say-on-pay behavior. Within a corporation, the internal “say on pay” is far stronger than the advisory shareholder vote, as senior management, human resources and budgetary factors weigh in.

275-sop-chart.jpg

Figure 1. Causal Loop Model applied to CEO compensation

The above cycles occur on a one-year basis; however other balancing factors can enter throughout the cycle. The Wall Street Journal (June 30, 2011) reported: “Companies may not have to abide by shareholder advisory say-on-pay votes mandated under the Dodd-Frank Act, but lawyers specialized in securities class action suits have already brought a half dozen suits against directors and executives for ignoring their results. A number of firms have tried to settle the claims quickly.”

Peer benchmarking has been a powerful tool in compensation. System dynamics provides a simple perspective to understand the dynamics at work. Unless there are changes to the current systems-dynamics for CEO pay, CEO compensation will continue to spiral upward.

February 15, 2012

Section 12(g): Corp Fin Grants Global No-Action Relief for RSUs at Pre-IPO Companies

Broc Romanek, CompensationStandards.com

On Monday, Corp Fin granted this no-action relief to Fenwick & West regarding the use of restricted stock units for employees at pre-IPO companies under certain conditions without the company needing to register the securities under Section 12(g) of the ’34 Act (generally, the conditions are similar to those in Rule 12h-1(f) for options). By granting the letter to a law firm – and not a specific company – this no-action letter serves as broad relief for those pre-IPO companies hoping not to be forced to go public before they are ready, a hot topic as it has even attracted attention on Capitol Hill where proposed legislation is afoot to raise the 12(g) thresholds, etc. Previously, Corp Fin had been granting relief in this area on a case-by-case basis (egs. Twitter, Facebook – see this blog).

February 14, 2012

Corp Fin’s New CDI: How to Present Say-on-Pay on Proxy Cards/VIFs

Broc Romanek, CompensationStandards.com

Yesterday, Corp Fin issued new ’34 Act CDI 169.07 to provide clarity about how companies should be listing their say-on-pay proposals on proxy cards and voting instruction forms. The CDI lists four examples that the Staff believes is consistent with Rule 14a-21 – and one example that the Staff believes is not consistent (ie. “To hold an advisory vote on executive compensation”). I believe many companies are going to need to make a tweak to their proxy cards and VIFs as they used the “inconsistent” language last year…

I’m not sure what to make of this NY Post article noting that a whistleblower – someone at an unnamed proxy solicitor – is claiming that a mid-level employee in ISS’s Boston office has been exchanging confidential voting data for gifts or cash from solicitors. Allegedly, the whistleblower has complained to the SEC – but whomever it is wouldn’t respond to questions from the NY Post reporter. We’ll see if this develops or is an urban myth. Among the odd things, it seems like the information could be valuable to arbitragers in a merger vote, but really not worth that much to companies (and their agents). Here’s today’s WSJ article on the topic…

February 10, 2012

Recent Articles on Executive Pay Stress Excesses

Broc Romanek, CompensationStandards.com

Cydney Posner of Cooley recently wrote this alert::

You might be interested in this Special Report from the Washington Post entitled “Breakaway Wealth.” Although it’s been known for quite some time that the gap between rich and poor has been widening in the U.S., what accounted for the spectacular increase was not well known. The speculation was that most of it was going to folks like LeBron, Shaquille and Brangelina. Not so, according to a number of recent studies cited in the Post’s Report. Recent significant research into this topic attributes a substantial component of the rising income disparity to hikes in executive pay: “The largest single chunk of the highest-income earners, it turns out, are executives and other managers in firms, according to a landmark analysis of tax returns by economists Jon Bakija, Adam Cole and Bradley T. Heim. These are not just executives from Wall Street, either, but from companies in even relatively mundane fields such as the milk business.”

According to the Report, 41% of the top 0.1% of earners -those making about $1.7 million or more, including capital gains — were executives, managers and supervisors at non-financial companies, and an additional 18% were managers at financial firms or financial professionals at other firms. In total, almost 60% of all top 0.1% of earners were one of those two categories. It turns out that pay for media and sports figures represented only 3% of the total, hardly the significant proportion of very high-income earners that many believed.

Other recent research highlights the data underlying the growth in income disparity. This data shows that executive compensation at the nation’s largest firms has roughly quadrupled in real terms since the 1970s, while pay for the remaining 90% has remained flat or even declined. Anecdotally, the Post reports that, for one milk producer, “[o]ver the period from the ’70s until today, while pay for [the company’s] chief executives was rising 10 times over, wages for the unionized workers actually declined slightly. The hourly wage rate for the people who process, pasteurize and package the milk at the company’s dairies declined by 9 percent in real terms, according to union contract records. It is now about $23 an hour.”

The statistics show that in 1975, the top 0.1% of earners — roughly 140,000 earners — earned about 2.5% of U.S. income, including capital gains, according to data collected by UC economist Emmanuel Saez. By 2008, the top 0.1% earned 10.4%, more than four times the percentage in 1975. Over the same period, the share earned by the top 0.01% — representing about 15,000 families — rose from 0.85% to 5.03%, approximately $27M each on average. According to the Post, that data puts the U.S. in league, not with Europe, the UK and other developed countries, but rather with countries like Cameroon, Ivory Coast, Uganda and Jamaica.

Some commentators have attributed the rise in executive pay to the increase in the size and complexity of companies. However, the Post reports, recent research by economists from MIT and the Federal Reserve shows “that while executive pay at the largest U.S. companies was relatively flat in the ’50s and ’60s, it began a rapid ascent sometime in the ’70s.

“As it happens, this was about the same time that income inequality began to widen in the United States, according to the Saez figures. “More importantly, however, the finding that executive pay was flat in the ’50s and ’60s, when firms were growing, appears to contradict the idea that executive pay should naturally rise when companies grow.”

Instead, the Post reports, some economists are now suggesting a possible alternative explanation for the rise in executive pay: “changes in the social norms that once reined in executive pay have disappeared.” The argument is that norms that would at one time have called into question excessive executive pay increases as unseemly or potentially harmful to employee morale no longer hold the same sway.

A similar theme regarding executive pay excesses is reflected in this column by Gretchen Morgensen in yesterday’s New York Times. The column suggests that the failure to provide stockholders with more context when describing executive pay may account for the overwhelming proportion of favorable say-on-pay votes. Describing recent research, the author suggests that total executive pay should be compared to overall labor costs or disclosed as a percentage of marketing or R&D expenditures, depending on the drivers of the company’s business. Citing recent studies, the column reports that there were 24 companies last year where cash compensation –just salary and bonus – was equivalent to 2% or more of the company’s net income from continuing operations. Similarly, 11 companies analyzed in the study gave top executives a combined pay package amounting to 1% or more of the companies’ average market value over the course of the year. The column notes that “[t]otal 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….[an amount that] is almost equal to the gross domestic product of Tajikistan, which has a population of more than 7 million.”

These articles appear as the SEC begins to mull rules implementing executive pay-ratio disclosure and some members of Congress consider, in light of complaints from corporate lobbyists and trade associations, whether to water down provisions of Dodd-Frank. Whether articles like these will have any impact on legislation or regulations remains to be seen.

February 9, 2012

Goldman and Morgan Stanley Negotiate Withdrawal of Clawback Proposal

Broc Romanek, CompensationStandards.com

As noted on Mark Poerio’s “ExecutiveLoyalty.org“, the WSJ ran this article noting that Goldman Sachs and Morgan Stanley have altered their clawback policies for employees due to negotiating the withdrawal of shareholder proposals related to their policies. The proponent was the Comptroller of the City of New York. The WSJ reports that the main clawback changes involve the following:

– permit recovery of compensation for failure to appropriately supervise or manage an employee;
– cover actions or omissions; and
– remove the term “material” regarding losses as a trigger for recovery.