This presentation looks at the executive compensation provisions (Sections 951-957) and corporate governance provisions (Sections 971-972) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

1. Dodd-Frank Wall Street Reform
and Consumer Protection Act
Executive Compensation and Corporate Governance
Provisions (Sections 951–957 and 971–972)
EXEQUITY June 30, 2010
J 30
Last updated: July 23, 2010
Independent Board and
Management Advisors
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without the approval of Exequity LLP.

2. Background
The following presentation walks through the highlights of the executive compensation provisions contained in the
Dodd Frank
Dodd-Frank Wall Street Reform and Consumer Protection Act This presentation is based on the final version of the bill
Act.
dated July 16, 2010 and posted on the Government Printing Office’s Web page: http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h4173enr.txt.pdf (under Title IX—Investor Protections and
Improvements to the Regulation of Securities Sections 951–957 and 971–972).
Act has passed through both the House and Senate. President Obama signed it into law on July 21.
p g g y
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3. Overview
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has several provisions that
impact executive compensation including:
compensation,
■ A nonbinding shareholder vote on the compensation of executives as disclosed in the proxy (“say on pay vote”) at
least once every 3 years.
■ A nonbinding shareholder vote on the frequency of the say on pay vote at least once every 6 years.
■ A nonbinding shareholder vote on golden parachutes.
■ Requirement for most public companies to have only independent directors on their compensation committees.
■ Requirement for most public companies’ compensation committees to utilize only independent compensation
consultants and other advisors.
■ Mandate for most compensation committees to be given authority to retain a compensation consultant and
independent l
i d d t legal counsel and other advisers, i l di fi
l l d th d i including fiscal authority.
l th it
■ Requirement for companies to disclose more information about executive compensation, including:
Pay versus performance;
Median annual total compensation of all employees;
CEO’s
CEO’ annual total compensation; and
lt t l ti d
Ratio of median annual total compensation of all employees to that of the CEO.
■ Requirement for public companies to implement a clawback policy.
■ Requirement for companies to disclose their policy with respect to executive and director hedging of company
equity securities.
securities
■ Making covered financial institutions subject to enhanced compensation structure reporting and prohibitions.
■ Eliminates broker votes on director elections, executive compensation, or any other significant matter, as
determined by the Securities and Exchange Commission (SEC), for uninstructed shares held by beneficial owners.
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4. Say on Pay Provisions
■ Separate shareholder vote in proxy at least once every 3 years to approve the compensation of executives as disclosed
in the proxy (CD&A, tabular and narrative disclosures), i.e., “say on pay.”
say pay.
■ Separate shareholder vote in proxy at least once every 6 years to determine whether shareholder vote on
compensation will occur every 1, 2, or 3 years.
■ Both the shareholder say on pay vote and the say on pay frequency vote are not binding on the company or the
company’s board of directors.
■ Effective for shareholder meetings occurring more than 6 months after Dodd Frank is enacted
Dodd-Frank enacted.
■ Institutional shareholders will be required to disclose their votes on say on pay and say on pay frequency.
Issues/Concerns
■ Companies will need to present both of the above shareholder votes in their first proxy filed more than 6 months after
the enactment of Dodd-Frank.
Next year will be a banner year for management say on pay proposals.
As currently written, requires “say on pay” vote next year even if previously agreed to biennial or triennial votes and
otherwise not scheduled next year.
■ Both the actual say on pay vote and the frequency vote are not binding Theoretically companies can decide on the
binding. Theoretically,
frequency they’d like to utilize. Practically, if a company chooses a frequency other than what shareholders vote for,
could be in for some shareholder attention. Similarly, ignoring a negative say on pay vote is likely to cause greater
shareholder scrutiny/action.
■ Likely to increase the influence of proxy advisory firms less than if annual say on pay votes had been mandated, but
that might be a moot p
g point if majority p
j y practice remains p providing an annual say on p y vote.
g y pay
■ Say on pay vote is on historic pay that is disclosed in the proxy, not necessarily on the compensation plans and
programs for the upcoming year as is the case in the U.K.
■ Say on pay vote likely to become a “check-the-box” exercise in compliance.
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5. Golden Parachute Votes
■ In any proxy for a meeting where shareholders will be asked to approve an acquisition, merger, consolidation, or
proposed sale or other disposition of all or substantially all the assets of an issuer (CIC) the following must be
(CIC),
disclosed and a separate, nonbinding shareholder vote must be held to approve:
Any agreements or understandings with named executive officers concerning any type of compensation that is
based on or otherwise relates to the acquisition, merger, consolidation, sale, or other disposition of all or
substantially all the assets of the issuer (“CIC Compensation”);
The
Th aggregate total of all such compensation th t may ( d th conditions upon which it may) b paid or
t t t l f ll h ti that (and the diti hi h ) be id
become payable to or on behalf of such executive officer; and
■ Effective for shareholder meetings occurring more than 6 months after Dodd-Frank is enacted.
■ This vote is not required if agreements or understandings were previously subject to a say on pay vote.
Issues/Concerns
■ Broad definition of CIC Compensation; seems to include vesting of prior awards like IRC Section 280G. Thus,
disclosure and vote seems expansive.
■ The rules specifically provide that no vote is necessary if previously approved in say on pay vote. If no design
changes occur, will a prior vote eliminate need t h
h ill i t li i t d to have vote i merger proxy? C th “
t in ? Can the “aggregate t t l” b
t total” be
adequately disclosed and approved in a prior proxy?
■ How (if at all) will this relate to the termination disclosures for named executive officers in proxies? Will this change
the current form of disclosure, either by rule or practice?
■ What happens if the board has authorized CIC Compensation and contractually bound the company but
shareholders don’t agree? The shareholder vote is nonbinding—what will the practical consequence be? Can or
will companies guard against such a scenario, e.g., will contracts contain shareholder approval contingency
clauses?
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6. Compensation Committee Independence
■ Companies will not be permitted to be publicly listed unless their compensation committees are composed entirely
of independent directors.
directors
■ Definition of “independence” will be issued by the national securities exchanges and associations, taking into
consideration relevant factors, including:
The source of compensation of a director, including any consulting, advisory, or other compensatory fee paid
by the company to such director; and
Whether the director is affiliated with the company, a subsidiary, or an affiliate of a subsidiary.
■ The SEC shall permit national securities exchanges and associations to exempt a particular relationship from the
above requirements, taking into consideration the size of the company and any other relevant factors.
Issues/Concerns
■ We expect the definition of independence to be largely the existing definitions used by the national securities
exchanges and associations for audit committee members, tailored to members of the compensation committee.
■ This requirement will put a final nail in the coffin of having nonindependent directors sit on a compensation
committee (which is now only a minor practice).
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7. Independence of Compensation Consultants and
Other Compensation Committee Advisers
■ Compensation committees of public companies may only select a compensation consultant, legal counsel, or other
adviser (“advisers”) after taking into consideration the factors identified by the SEC.
( advisers ) SEC
■ The SEC must identify factors that affect the independence of an adviser.
Such factors shall be competitively neutral among categories of advisers and preserve the ability of
compensation committees to retain the services of members of any such category, and shall include:
► The provisions of other services to the company by the person that employs the adviser;
► The amount of fees received from the company by the person that employs the adviser, as a percentage of
the total revenue of the person that employs the adviser;
► The policies and procedures of the person that employs the adviser that are designed to prevent conflicts of
interest;
► Any business or personal relationship of the adviser with a member of the compensation committee; and
► Any stock of the company owned by the adviser.
■ The compensation committee, at its discretion, may retain the services of an adviser. However, this does not:
Require the compensation committee to implement or act consistently with the advice or recommendations of the
adviser; or
Affect the ability or obligation of a compensation committee to exercise its own judgment in fulfillment of the
duties of the compensation committee.
■ Required disclosures—for any shareholder meeting occurring on or after the 1-year anniversary of the date of
enactment of Dodd-Frank, public companies will be required to disclose in their proxies whether:
The compensation committee retained or obtained the advice of a compensation consultant; and
The work of the compensation consultant has raised any conflict of interest and, if so, the nature of the conflict
and how it is being addressed.
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8. Independence of Compensation Consultants and
Other Compensation Committee Advisers (Continued)
■ Companies that fail to comply with the requirements of this section of Dodd-Frank will be prohibited from being
publicly listed; those failing to comply will be given a “reasonable opportunity to cure any defects before their listing
reasonable defects”
is prohibited.
■ SEC will permit the national securities exchanges and associations to exempt a category of issuers from the
compensation committee independence and independent adviser requirements.
Shall take into account the potential impact on smaller reporting companies.
Controlled companies shall be exempt from these requirements.
► Controlled company is a company that is listed on a national securities exchange or association and holds
an election for the board of directors in which more than 50% of the voting power is held by an individual, a
group, or another company.
■ The SEC must conduct a study and review of the use of compensation consultants and the effects of such use and
submit a report to Congress within 2 years after enactment of Dodd-Frank on the results of such study and review.
Issues/Concerns
■ The language does permit compensation committees to engage any adviser they like so long as they at least
consider the f t
id th factors t b promulgated b th SEC
to be l t d by the SEC.
■ However, consistent with current trends, these requirements will likely persuade a majority of companies to engage
independent advisers to advise their compensation committees.
■ Unclear just how the factors mentioned in Dodd-Frank will be applied by the SEC.
■ The SEC regulations are unlikely to outright prohibit the consultant from providing any other services to the
company, but this may in practice become a compensation committee requirement. Note, this also applies to other
advisors such as legal counsel; this could result in committees engaging different legal counsel than the counsel
involved in other corporate matters.
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9. Executive Compensation Disclosures
■ Pay vs. Performance—SEC must require each company to disclose in any proxy for an annual meeting a clear
description of any compensation required to be disclosed under the proxy disclosure rules, including:
rules
Information that shows the relationship between executive compensation actually paid and the financial
performance of the company, taking into account any change in the value of shares of stock and dividends and
any distributions; this disclosure may include a graphic.
■ Additional Disclosures—SEC shall require companies to disclose in any filing which requires disclosure regarding
the compensation of a company s named executive officers:
company’s
The median of the annual total compensation of all employees, except the CEO (Median Employee Annual
Compensation);
The annual total compensation of the CEO (CEO Annual Compensation); and
The ratio of the Median Employee Annual Compensation to the CEO Annual Compensation.
► Total compensation is defined as it is for purposes of the Total Compensation column in the Summary
Compensation Table.
Issues/Concerns
■ Determining the Median Employee Annual Compensation will take a significant amount of work for companies with
large employee bases and/or operations in multiple countries. For example, total compensation includes annual
pension increases which can significantly increase the disclosure burden.
■ Since ratios will almost always be a sizeable multiple, it is likely to spark shareholder ire where company performance
is subpar. Note, again, that this ratio is done largely based on pay opportunity rather than actual pay realized,
p
particularly with respect to equity incentives.
y p q y
■ This pay ratio concept has historically been used to compare executive pay across various countries. However, it is
unlikely to guide future pay decisions nor allow for solid comparisons across companies. For example, outsourcing
decisions can have a material impact on the calculation.
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10. Clawback Provision—Recovery of Erroneously Awarded
Compensation Policy
■ Public companies can only be listed if they comply with the following requirements:
Each
E h company shall:
h ll
► Disclose its policy on incentive-based compensation that is based on financial information required to be
reported under the securities laws; and
► In the event that the company is required to prepare an accounting restatement due to the material
noncompliance of the company with any financial reporting requirement under the securities laws, recover
from any current or former executive officer who received incentive-based compensation (including stock
options awarded as compensation) during the 3-year period preceding the date on which the company is
required to prepare an accounting restatement, based on the erroneous data, in excess of what would
have been paid to the executive officer under the accounting restatement.
Issues/Concerns
■ How will compensation that is based on or related to the movement in the company’s stock price be treated under
this required clawback policy? In other words, with respect to such awards, how can a company determine what
“excess amount” was paid if the stock price reflected the market’s understanding of the financial reporting
information that was restated?
■ Will shareholders have the right to bring a derivative action under this provision if a company does not?
■ How will this clawback provision interact with any mandatory holding periods a company has imposed on
company securities received by executives or directors, especially where the amounts held relate to a period prior
to the 3-year period prior to any required restatement?
■ Can the “appropriate” clawback amount b d fi d or must thi by it nature require significant di
C th “ i t ” l b k t be defined t this b its t i i ifi t discretion?
ti ?
■ How will other legal challenges be addressed (e.g., wage laws), if at all?
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11. Disclosure Regarding Employee and Director Hedging
■ SEC shall require companies to disclose in any proxy for an annual meeting whether any employee or member of
the board of directors or any designee of such employee or director is permitted to purchase financial instruments
directors, director,
(including prepaid variable forward contracts, equity swaps, collars, and exchange funds) that are designed to
hedge or offset any decrease in the market value of equity securities:
Granted to the employee or director by the company as part of his compensation; or
Held, directly or indirectly, by the employee or director.
Issues/Concerns
■ Given the Section 16 insider trading rules, hedging activities by officers and directors were not prevalent practice.
■ However, this will cause companies to formalize an anti-hedging policy (if they have not already done so) and apply
the policy to all employees
employees.
■ To the extent any employee or director is hedging, and the company is concerned about disclosing such
transactions, they may wish to undo these transactions prior to the filing of their next proxy.
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12. Enhanced Compensation Structure Reporting for Financial
Companies
■ Covered financial institutions will be subject to new rules and regulations to be promulgated by the appropriate
Federal regulators within 9 months after enactment of Dodd-Frank
Dodd Frank.
■ These regulations will require each covered financial institution to disclose to the appropriate Federal regulator the
structures of all incentive-based compensation arrangements offered by such covered financial institutions
sufficient to determine whether the compensation structure:
Provides an executive officer, employee, director, or principal shareholder with excessive compensation, fees,
or b
benefits; or
fit
Could lead to material financial loss to the covered financial institution.
■ Covered financial institutions with less than $1 billion of assets will be exempt from these requirements.
Issues/Concerns
■ Based on the review conducted by the Federal Reserve of large, complex banking organizations, it is safe to
assume that the appropriate Federal regulators will be looking to make significant changes with respect to
compensation, including requiring:
Mandatory holding periods;
A significant portion of compensation to be deferred; and
Introducing an absolute metric governing payouts of any performance-based compensation subject to relative
performance measures, e.g., relative total shareholder returns.
■ We believe compensation at covered financial institutions will be transformed as a result of this provision and the
Federal Reserve’s recent review. It remains to be seen how compensation programs will be changed and the
Reserve s review
impact this may have on financial institutions’ ability to attract, motivate, and retain key talent.
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13. Voting by Brokers
■ Dodd-Frank prohibits brokers from voting securities unless the beneficial owner has instructed the broker how to
vote the proxy on the following matters:
Election of directors;
Executive compensation; or
Any other significant matter, as determined by the SEC.
But does not include the uncontested election of directors of any investment company
company.
■ Dodd-Frank specifically does not prohibit a national securities exchange from promulgating rules that would expand
the list of such matters regarding which brokers are prohibited from voting without instructions from the beneficial
owner.
Issues/Concerns
■ This provision will apply to the new mandatory say on pay votes regarding executive compensation, which will have
a negative impact on vote outcomes and likely will force companies to evaluate whether a proxy solicitation
campaign targeted at retail beneficial owners is warranted.
■ Likely will increase the influence of proxy advisory firms as the broker votes are not counted on the above issues.
y p y y
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14. Corporate Governance
■ Proxy access
Requires: (1) companies t i l d a shareholder nominee t serve on th b d of di t
R i i to include h h ld i to the board f directors, and
d
(2) companies to follow a certain procedure with respect to the solicitation of proxies.
► SEC may issue rules permitting shareholders to use proxy solicitation materials supplied by an issuer for
the purpose of nominating directors, under such terms and conditions as the SEC determines are “in the
interests of shareholders and for the protection of investors.”
► SEC may exempt an issuer or class of issuers from these requirements, taking into account whether the
requirement disproportionately burdens small issuers.
■ Disclosures regarding chairman and CEO
Not later than 180 days after enactment of the Dodd-Frank Act, the SEC shall issue rules that require issuers
to disclose in their annual proxy sent to investors the reasons why the issuer has chosen:
► The same person to serve as chairman of the board and CEO; or
► Different individuals to serve as chairman of the board and CEO.
Issues/Concerns
■ Proxy access has been a lightning rod for the SEC. The SEC has been reviewing this topic for several years and
has stopped short of implementing this in the past. It should be interesting to see how the SEC goes about
implementing these requirements. For example, will shareholders that want to gain access to the proxy have to
hold a minimum amount of stock for a specified period of time in order to be able to do so?
■ As for the disclosures regarding chairman and CEO public companies were already subject to similar requirements
CEO,
imposed by the SEC in its December 2009 proxy disclosure amendments. So as a practical matter, these
requirements don’t add anything substantially new to companies’ disclosures.
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15. About the Speaker
Edward Hauder—Senior Executive Compensation Advisor
■ S i advisor and practical thought leader: Ed i k
Senior d i d ti l th ht l d is known i d t
industry-wide as a l di advisor on executive
id leading d i ti
compensation matters. He maintains long-term relationships with numerous companies, serves on the
CompensationStandards.com Executive Compensation Task Force, maintains his acclaimed Equity Compensation
Blog, edwardhauder.com, and is a practical thought leader on compensation matters.
■ Experience across a range of industries: Ed has consulted with hundreds of companies in multiple industries on
all aspects of executive and di t compensation. Ed f
ll t f ti d director ti focuses on h l i companies d i compensation
helping i design ti
programs that help them achieve their strategic goals and objectives, while at the same time keeping them out of
the penalty box with shareholders and the media. Ed also helps companies understand and find practical solutions
for technical matters impacting compensation, e.g., financial accounting, securities, tax, and corporate governance
issues. His expertise includes RiskMetrics Group (a.k.a. ISS) compensation modeling and policies, which enabled
him to create the Flexible Share Authorization to maximize equity plan flexibility
flexibility.
■ Articles and quotes on compensation issues: Ed has recently written articles that have appeared in The
Corporate Board, workspan Weekly, BNA’s Executive Compensation Library, and Tax Management Compensation
Planning Journal. He has been quoted in such publications as BNA’s Pension & Benefits Daily, Business Finance,
Forbes, HR Magazine, and The NASPP Advisor.
■ Background and education: Before joining Exequity Ed was employed as a Principal at Buck Consultants where
Exequity,
he managed the Technical Solutions and Innovation Team. Prior to that, Ed was a member of Hewitt Associates’
Executive Compensation Center of Technical Excellence. Ed received a B.A. in International Relations from
Juniata College, a J.D., cum laude, from Seattle University School of Law, and an LL.M. (Tax), with honors, from
IIT-Chicago-Kent College of Law.
■ Contact information: edward hauder@exqty com or (847) 996 3990
edward.hauder@exqty.com 996-3990
Ed’s Equity Compensation Plan Blog: www.edwardhauder.com
Twitter: www.twitter.com/ExeCompAdvisor
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