Fred Whittlesey
Compensation Venture Group, Inc.
Greetings from Seattle, where this month we had snow, sleet, hail, record rainfall, wind, and record low temperatures. These unusual weather patterns caused much of our citizenry to be confused, intimidated, and many just stayed home - after all, we’re accustomed to some rain this time of year but the snow/sleet/hail/wind/cold is a different game. Yesterday it was sunny with a clear blue sky – still cold, but you could see where you were going and get there reasonably safely, with just a little ice on the roads – proceed with caution and you were OK. Today, another storm hit. Of course many are attributing this to global warming which is curiously ironic.
Members of Compensation Committees across the country are feeling a bit like Seattle residents did this week as they experience the equivalent of global warming in the compensation environment – disruption and continual change from the norms of the preceding decades. They were accustomed to an ongoing challenging, but stable, role and then everything changed – accounting, tax, shareholder activism, proxy advisor policies, and then the new SEC disclosure rules. The feeling now is that proceeding with caution will be enough. Yet just as we’ve scraped the ice from the windshield and plowed the roads to get through the new tables, CD&A, and associated requirements for the next proxy statement, here comes another storm: ISS 2007.
Many are unaware that Institutional Shareholder Services (ISS) has already issued their policies for 2007. They have not been this far in front of the calendar in the past. The US, Canada, and International policies total about 45 pages. This issue of the Compensation Committee Adviser summarizes the key points that Compensation Committee members, executives, and compensation professionals need to know.
While admittedly oversimplifying, I’ve organized compensation practices onto Good and Bad lists for quick reading. As I’ve been discussing with my clients over the past few years, the Good and Bad categories keep changing and continue to vary among the various list-makers. We all remember when stock options were Good and restricted stock was Bad; then after Enron and the Breeden Report, among other events, options were Bad and restricted stock was Good. Next, the shareholder advocates chimed in and, at least for executives, options might be OK, restricted stock is Bad, and performance plans are Good.
Here is the new checklist of the Good and the Bad, from the perspective of ISS which – pardon the cinematic reference – is becoming increasingly ugly. Many of the Good are now defined by ISS as “best executive pay practices” and the Bad as “poor pay practices.”
Good
* Burn rates that fall below the level of the mean plus one standard deviation for the industry, with “industry” based on the company’s GICS code. It is critical to ensure that ISS has your company properly classified as misclassification has led to erroneous voting recommendations by ISS
* Employment contracts entered into under limited circumstances with a term of 3 years or less, no automatic renewal, and a specified termination date
Severance provisions “not so appealing that they become incentives for executives to be terminated”
* Severance agreements excluding tax gross-ups (here I say “hurray” to ISS for underscoring the rapacious nature of tax gross-ups)
* Change-in-control payments only based on double-trigger conditions (change-in-control and loss of employment)
* Supplemental Executive Retirement Plans (SERPs) that exclude sweeteners and formulae that include equity awards and variable pay (i.e., annual bonuses)
Bad
* Employment contracts with multi-year guarantees for bonuses and grants
* Excessive severance provisions
* Single-trigger change-in-control provisions that result not only in payments but in full acceleration of stock award and option vesting
* Excessive perks (e.g., tax gross-ups for personal use of corporate aircraft)
* Large bonus payouts with poor performance linkages and/or performance metrics changed during the performance period
* Overly generous new hire packages for CEOs
* Internal pay disparity (i.e., CEO pay more than x times that of direct reports, with “x” not defined)
* Above-market returns or guaranteed minimum returns on deferred compensation amounts
* Anything that does not comply with the characteristics of the Good list
(That last bullet, while perhaps sounding flip, is consistent with the SEC’s approach to defining a “non-equity incentive plan” in the new disclosure rules. They say “A ‘non-equity incentive plan’ is defined as an incentive plan…that is not an equity incentive plan.” I think a sentence like that in graduate school would have drawn a lot of professorial red ink to my paper.)
This Good and Bad list only reflects ISS’s US policy – they have separate policies for Canada, the UK (not yet released), and other International locations. For example, a new view of Matching Share Plans (Sweden, Norway) for 2007 is that they are acceptable with significantly discounted prices for executives (up to an 80% discount), as long as performance criteria are attached. Contrast this to the unilateral hatred of discounted stock options by ISS and virtually all shareholder groups, a view reflected in the 409A rules.
ISS also has changed four key points of their share value transfer methodology (see p. 14 of the linked document). The four changes increase the calculated cost of equity-based compensation plans. Said another way, whatever was done last year just became more “costly” this year, in the eyes of ISS. You may have driven down that road at 45 mph last year, which was the speed limit then, but they just lowered the speed limit to 35 mph so you were speeding last year and here’s your speeding ticket. Yes, that is how the logic works.
In addition, ISS has revised the criteria for the Corporate Governance Quotient (CGQ) ratings model with a focus on two of this year’s hot topics, financial restatements and option backdating.
If your shareholders’ voting habits are not driven by ISS you might conclude that none of this matters which, tactically, may be true. But in this environment of viral spreading of compensation ideas, good and bad, it behooves all to keep this list in mind during the year-end compensation planning – and disclosure – processes.
Some recent cases in point: The Commissioner of the Internal Revenue Service recently put all cash- and stock-based incentives on the Bad list, but only for CFOs, General Counsels, and Non-employee Board Chairs – not that this changes the tax rules but just adds more fuel to the already heated discussion. Similarly, Moody’s put stock options, EPS as a performance measure, and stock buybacks on the Bad (i.e., you’re a credit risk) list, but only if they all three are used together, which is true for the majority of large US companies.
Once a company identifies the relevant policies of other proxy advisory firms (such as Glass Lewis), major institutional shareholders with policies that sometimes contradict and sometimes compliment those of ISS (Fidelity, Dimensional, CalPERS, CalSTRS), and other policy-setters (Moody’s) all the Committee must do is approve the design, amounts, and operation of the company’s executive compensation programs - within the constraints, of course, of FAS123R; IRC 409A, 162(m), and 280G; and all of the tabular disclosure requirements. And then management can write that up for the proxy statement CD&A.
One might notice that ISS’s cumulative policies, over the years, have converged with the SEC’s disclosure agenda. Many of the practices that ISS considers Bad are those that have received the most attention in the SEC’s new disclosure rules. Now that everyone can see it, the logic goes, you’ll have to stop doing it – “it” being pay-for-failure agreements, tax gross-ups, egregious severance deals that provide downside coverage despite the rationale that large equity awards were needed due to the “high-risk high-reward” culture, and so on.
The forecast? Continued evolution of accounting, tax, and securities rules, increasing levels of critique and commentary from increasingly diverse sources, new behavioral and financial theories about Good and Bad pay, academic studies finding answers in mountains of data…and increasing workloads and time commitments for Compensation Committee members. As the heat increases on Compensation Committees, things will continue to get more unpredictable and change will be the only constant - like the weather. But you will find my forecast to be much more accurate than those of meterologists.
Next Issue: UK Policy Creeps into US Practices: Payback Time
