FW Cook Authors
Bindu Culas and Samantha Nussbaum are former practicing lawyers who moved over to the consulting side of executive compensation several years ago. They have launched this blog to keep clients, colleagues, fellow practitioners, and others interested in this area up-to-date on market trends, regulatory developments, and the like. Thank you for reading. Any and all feedback is welcome. We look forward to hearing your thoughts!
SEC Provides Guidance to Investment Advisers on Use of Proxy Advisors
On August 21, 2019, in a 3-2 vote along party lines, the Securities and Exchange Commission (SEC) issued guidance to investment advisers regarding their voting responsibilities, in particular when engaging proxy advisory firms such as Institutional Shareholder Services (ISS) and Glass Lewis.
California Conforms to Section 162(m) of the Federal Tax Code
On July 1, 2019, a new law passed in California (Assembly Bill 91) that selectively conformed the California tax code to some of the federal code changes made by the Tax Cuts and Jobs Act (Tax Act). Notably, the Tax Act eliminated the qualified performance-based compensation exception to the $1 million annual limitation on the deductibility of compensation paid to a covered employee under Section 162(m), except for compensation paid pursuant to grandfathered contracts.
Glass Lewis Initiates Report Feedback Statement Service
Glass Lewis recently announced a new pilot program for the 2019 proxy season intended to facilitate communication among companies, proponents of shareholder proposals and investors. The Report Feedback Statement (“RFS”) is a subscription service that provides public companies and shareholder proponents the opportunity to submit feedback about Glass Lewis’ analysis of their proposals in advance of the voting deadline, and have those comments delivered directly to investors who subscribe to Glass Lewis’ research or voting services.
By Joe Sorrentino, PrincipalRead More
Using Sustainability Metrics in Incentive Plans
The overarching goal of incentive compensation plan design is, of course, to incentivize management to focus on value creation for shareholders. Recent developments concerning corporate “sustainability” suggest that compensation committees of public company boards of directors, as well as human resources executives, should consider the use of metrics developed to measure sustainability in incentive plans.
By Joe Sorrentino, PrincipalRead More
SEC Adopts Final Rules for Disclosure of Hedging Policies
On December 18, 2018, the SEC approved final rules requiring the disclosure of hedging policies in annual proxy statements. The rules, which become effective for fiscal years beginning on or after July 1, 2019, are an implementation of a Dodd-Frank mandate. The rules do not require that companies have a hedging policy or practice in place; rather, the rules relate only to disclosure.
ISS Publishes 2019 Equity Plan FAQs & Updates to Compensation Policy FAQs
Following the recent publication of its U.S. Compensation Policy Frequently Asked Questions (FAQs), ISS just released FAQs containing new and materially updated questions for evaluating equity plans for the 2019 proxy season.
ISS Releases 2019 Compensation Policy FAQs
ISS recently published its U.S. Compensation Policy Frequently Asked Questions (FAQs), which contain significant changes from the prior release of preliminary FAQs issued in November. Most notably, ISS updated its list of problematic practices that will likely result in an adverse say-on-pay (SOP) recommendation. It now includes new or materially amended agreements that provide for “problematic” good reason definitions (and related severance).
By Samantha Nussbaum, PrincipalRead More
ISS Seeks Comment on Draft 2019 Policy Updates
On October 18, 2018, Institutional Shareholder Services (ISS) commenced a two-week consultation period on potential updates to its benchmark voting policy for 2019. There are a total of nine U.S. and international draft policy updates for consideration, of which two relate to U.S. governance matters: Financial Performance Assessment methodology and Board gender diversity.
Major GICS Structure Changes Could Impact Peer Group Construction
Effective September 28, 2018, S&P Dow Jones Indices and MSCI, Inc. will implement major changes to their Global Industry Classification Standard (“GICS”) structure that will primarily impact media and technology companies. While such changes may have implications for the development of comparative peer groups used by companies in competitive analyses of pay levels and practices, they are likely to have a more significant impact on the peer groups developed by proxy advisors such as Institutional Shareholder Services (“ISS”), which are a key factor in their vote recommendations on executive compensation issues.
By Cimi Silverberg, Managing Director & Head of Chicago OfficeRead More
Massachusetts Noncompetition Agreement Act Update
On Friday, August 10, Massachusetts Governor Charlie Baker signed a $1.1B economic development bill, which included The Massachusetts Noncompetition Agreement Act. The Act, effective October 1, 2018, limits the use and form of non-compete agreements for employees in Massachusetts (regardless of where the employer is headquartered), and applies to non-competes executed on or after October 1, 2018.
By Dana Etra, Edward SmithRead More
ISS Releases Annual Policy Survey for 2019 Policy Updates
On July 30, ISS released its annual policy survey to solicit market feedback for its 2019 policy updates. Per ISS Corporate Solutions, “The on-line policy survey is designed to gather feedback from a wide range of stakeholders to give ISS guidance on where to set policy in areas that are emerging or unclear.” The two questions covered on the topic of compensation relate to ISS' quantitative pay-for-performance test and non-employee director compensation.
By David Yang, Edward D. GraskampRead More
SEC Relaxes Threshold for Qualifying as a Smaller Reporting Company
The Securities and Exchange Commission (SEC) on Thursday June 28, 2018 voted to ease the thresholds for qualifying for “smaller reporting company” (SRC) status. Under the new rules, SRCs are defined as companies with less than $250 million in publicly traded shares (up from $75 million), or less than $100 million in revenues for the previous fiscal year (up from $50 million) and less than $700 million in publicly traded shares. The SEC estimates that nearly 1,000 companies will meet these relaxed thresholds.
By Thomas M. Haines, Managing DirectorRead More
Banking CEO Pay Ratios
The CEO pay ratio disclosure, enacted in 2010 as part of the Dodd-Frank Act, is the executive compensation item getting the most attention this proxy season. Despite strong opposition on many fronts, the pay ratio lived to see the light of day and is included for the first time in 2018 proxy statements for companies with fiscal years starting on or after January 1, 2017 (Emerging Growth Companies and certain other issuers are exempted from the ratio disclosure). Although the focus of much commentary and analysis, the implications of this new piece of public information remain to be seen.
By Edward D. GraskampRead More
Application of New Corporate Tax Rate to Fiscal Year Companies, Part II
As we previously discussed, under the recently enacted Tax Cuts and Jobs Act, the new 21% corporate tax rate applies on a blended basis to fiscal year companies (i.e., companies whose taxable years do not end on December 31st). The IRS has now issued guidance for how fiscal year companies can calculate the amount of federal income tax they owe.
Considering the Investor Perspective in Shareholder Engagement Efforts
Understanding investor expectations is key to carrying out a successful outreach campaign. In our previous blog post titled "Shareholder Outreach and the Evolving Role of Investor Stewardship" we discussed how investors’ evolving view on stewardship is changing their expectations for ongoing engagement with portfolio companies as they begin to take a more holistic view of their investments. In this second installment of our three-part blog series, we discuss the evolving focus on executive compensation, as well as areas beyond compensation that may arise during shareholder outreach.
Approval of Musk Pay Deal Has Major Potential Implications
Many believe that Elon Musk already has revolutionized automotive technology, rocketry, and solar energy. He now may have done the same to U.S. executive compensation with shareholder approval of his new incentive compensation arrangement at Tesla’s annual shareholder meeting on March 21st. The new incentive compensation arrangement is essentially 12 tranches of performance stock options, each vesting when Tesla’s market-capitalization value grows in $50 billion increments starting from $100 billion for the first option tranche and ending at $650 billion over 10 years.
Shareholder Outreach and the Evolving Role of Investor Stewardship
Investors’ evolving view of their role as fiduciaries is changing their view on engagement with their portfolio companies, governance best practices, and expectations for how companies conduct their shareholder outreach efforts. This blog post is the first of a three-part series discussing these issues, and focuses on institutional investors’ and proxy advisory firms’ view of investor/company engagement. Part two of the series will focus on investors’ hot topics related to governance issues and compensation best practices, while part three will focus on considerations for companies engaging in shareholder outreach efforts.
Section 162(m) and State Conformity to the Federal Tax Code
While the performance-based compensation exception to the $1 million compensation limit under Internal Revenue Code Section 162(m) for “covered employees” is a thing of the past (absent grandfathered contracts) for federal income tax purposes, practitioners are realizing that Section 162(m) may continue to be a consideration for state taxes.
ISS and the Recent Changes to IRC Section 162(m)
On January 12th, ISS Analytics published an interview with ISS’ Head of U.S. Compensation Research intended to provide insight into how ISS will assess changes in compensation practices as a result of the recent legislative modifications to IRC Section 162(m). ISS states it will be closely monitoring the issue, although they did not specify any particular policy changes (yet).
Application of New Corporate Tax Rate to Fiscal Year Taxpayers/New Supplemental Withholding Rates
This blog discusses two issues raised by the tax rate changes in the recently enacted tax bill: (1) how the new corporate tax rate applies to fiscal year (i.e., non-calendar year) corporations and (2) the new individual tax withholding rates on supplemental income. The first topic is particularly important since it turns out the actual rule is different from what many of us expected the rule to be.
By David Gordon, Managing DirectorRead More
Driving Capital Efficiency within the E&P Industry
The exploration and production (E&P) industry is in the midst of a sea-change in investor expectations. Investors have indicated that they are no longer supportive of unprofitable growth, rather they are shifting their focus to financial/investor returns and disciplined capital allocation. Companies should assess whether their executive incentive plans are evolving to support changes in business strategy and investor expectations.
Year-End Executive Compensation Planning
With tax reform now approved and expected to be signed into law prior to December 31, companies are evaluating year-end strategies for 2017 bonuses in light of the reduction in the corporate tax rate beginning next year and changes to the deductibility of compensation provided to certain executive officers. The tax bill and its implications are complex, and the appropriate course of action varies from company to company based on numerous circumstances related to existing policy, governance considerations and the predictability of payouts expected to occur in 2018 that are potentially deductible with respect to the 2017 tax year.
One-Size-Fits-All Executive Compensation Has Exceptions
We recently presented an executive compensation program review to the board compensation committee of a successful, long-standing S&P 500 industrial company. The peer group had 20-or-so comparable companies. A primary conclusion was that after six years of say-on-pay and proxy advisor voting rules, both the pay levels and program structures in the peer group were never more alike.
Tax Bill Update: Where Are We Now?
As readers know, comprehensive tax reform legislation was introduced on November 2, 2017, and is currently working through Congress. The House version was passed on November 16th and the Senate version was passed on December 2nd. Both versions generally align on most executive compensation-related provisions, but the shape of any final legislation remains uncertain as the House and Senate will attempt to reconcile their differences over the next few weeks.
2017 Say-on-Pay Recap as of December 1st
2017 marks the seventh year for “Say-on-Pay” voting. Consistent with prior years, an overwhelming percentage of Russell 3000 companies have obtained majority Say-on-Pay support to date and ISS issued an "Against" vote recommendation on approximately 12% of Say-on-Pay proposals.
By Voytek Sokolowski, ConsultantRead More
ISS Releases Preliminary Compensation FAQs for the 2018 Proxy Season
Today, ISS published preliminary U.S. compensation FAQs, which provide insight to the updated ISS quantitative pay-for-performance screening methodology and its U.S. Equity Plan Scorecard (EPSC) evaluation related to stock plan proposals, each as applicable to public companies with annual shareholder meetings on or after February 1, 2018.
ISS Releases Policy Updates for 2018 Proxy Season
On November 16, ISS released policy updates applicable to public companies with annual shareholder meetings on or after February 1, 2018. The compensation-related policy updates impact say-on-pay proposals in the U.S. and Canada and the re-election of board members in the U.S. In addition, ISS adopted a new U.S. policy regarding shareholder proposals seeking gender pay gap information. Finally, the policy updates do not address the use of “realizable pay” or the CEO pay ratio to evaluate pay-for-performance alignment or excessive compensation practices in 2018.
Tax Bill Alert: Welcome Relief as New Deferred Compensation Rule Also Deleted from Senate Bill
Last night, Senate Finance Committee Chairman Hatch released the first amendments to the Senate’s version of the Tax Cuts and Jobs Act. Amendments related to executive compensation largely mirror changes that were made to the House version of the bill last week. An important change was the deletion of new rules that would have taxed non-qualified deferred compensation (including non-qualified stock options) upon vesting. This means non-qualified stock options will continue to be taxed upon exercise and Section 409A lives on to govern deferred compensation.
Tax Bill Alert: Newly Released Senate Version of Tax Bill Retains Troublesome Deferred Compensation
Yesterday evening, Senate Finance Committee Chairman Hatch released details of the Senate’s version of the Tax Cuts and Jobs Act. The most notable development for executive compensation is that the Senate bill generally contains the same executive compensation related provisions that were included in the first, and now outdated, release of the House bill (H.R. 1).
Tax Bill Alert: Section 409A Deferred Compensation is Preserved Under House Amendment
Today, House Ways and Means Committee Chairman Brady released an amendment that impacts several provisions of H.R. 1. Most notably for executive compensation, the amendment strikes Section 3801 of H.R. 1 (which introduced a new “Section 409B”), thereby preserving the current-law tax treatment of nonqualified deferred compensation.
Executive Compensation Landscape Could Change Dramatically Under Proposed Tax Bill
On November 2, 2017, the House Ways and Means Committee released the “Tax Cuts and Jobs Act” (H.R. 1). The bill designates several executive compensation items for amendment or repeal. If enacted as proposed, H.R. 1 would result in sweeping changes in the design and taxation of executive compensation including: elimination of non-qualified deferred compensation arrangements, elimination of non-qualified stock options as a long-term incentive vehicle, and elimination of deduction for performance-based compensation under I.R.C. §162(m).
ISS Seeks Comment on Draft 2018 Policy Updates
On October 27, 2017, Institutional Shareholder Services (ISS) commenced a two-week consultation period on potential updates to its benchmark voting policy for 2018. There are a total of 13 U.S. and international draft policy updates for consideration, of which two relate to U.S. compensation matters: non-employee director (NED) pay and gender pay gap proposals.
SEC Issues Significant Guidance on Pay Ratio Disclosure Rules
On September 21, the SEC released several documents interpreting the pay ratio disclosure rules required under Dodd-Frank. In addition to implicitly confirming the widespread perception that the SEC plans to take no steps to modify the final regulations or delay implementation of the rule, the guidance provided some liberalization with respect to the procedures companies could use to compute the pay ratio and to make compliance less onerous. Notably, the SEC reversed its controversial position that, at least in some circumstances, independent contractors and leased workers had to be counted in computing the pay ratio.
FW Cook Publishes 2017 Aggregate Share-Based Compensation Report
FW Cook recently released the 5th edition of its report on aggregate share-based compensation practices, which covers company-wide equity grant levels and practices at 300 U.S. based companies for the period 2014 – 2016.
By Steven Knotz, PrincipalRead More
FW Cook Publishes 45th Edition of Annual Top 250 Report
In its 45th year of publication, FW Cook's annual Top 250 Report details the long-term incentive practices and trends of the 250 largest companies by market cap value in the Standard & Poors ("S&P") 500. The survey is intended to provide information to assist boards of directors and compensation professionals in designing and implementing effective long-term incentive programs that promote long-term success for their companies.
2017 Mid-Year Equity Plan Voting Results Update
Among Russell 3000 companies, there were a total of 412 proposals seeking shareholder approval of equity plan amendments and 191 proposals requesting shareholder approval of new equity plans. With the exception of three proposals, all received majority shareholder support.
A Slimmed-Down SEC Agenda is Missing Executive Compensation Rulemaking
On July 20th, the SEC released its rulemaking agenda, and the list is much shorter than it was last year at this time. The list purports to reflect the rulemaking initiatives for the coming year, and several remaining Dodd-Frank executive compensation items are not on the agenda.
New ISS Policy Survey (Including Pay Ratio and Non-Employee Director Compensation Questions) Available for Input
ISS recently launched two surveys - the Governance Principles Survey and the Policy Application Survey - soliciting market feedback for its 2018 policy updates. ISS is seeking feedback on several issues, including one related to the “Pay Ratio Between Senior Executives and Employees” and another related to “Non-Employee Director Pay.” The surveys will be open until August 31st and October 6th, respectively.
Key Reasons for ISS “Against” Say-on-Pay Vote Recommendations
While an ISS recommendation is not per se determinative of the final Say-on-Pay vote result, a “For” recommendation significantly increases the likelihood of securing a positive outcome, and an “Against” vote recommendation typically requires companies to engage in substantial investor outreach.
2017 Say-on-Pay Recap to Date
2017 marks the seventh year for “Say-on-Pay” voting. Consistent with prior years, an overwhelming percentage of Russell 3000 companies have obtained majority Say-on-Pay support to date and ISS issued an "Against" vote recommendation on approximately 11% of Say-on-Pay proposals.