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More on the Administration?s Compensation Guidelines

By Harvard Law School Program on Corporate Governance

(Editor’s Note: The Administration’s compensation guidelines are available here, and a valuable outline of the guidelines by Davis Polk & Wardwell is available here. Earlier posts on the compensation guidelines on this blog are available here and here.)

Related to the recent op-ed piece from Professor Bebchuk regarding the new Treasury executive guidelines, here are key fixes to those new guidelines recommended by Jesse Brill, Chair of CompensationStandards.com:

One key aspect of the Obama Adminstration?s new $500,000 cap that has not gotten sufficient attention is the unlimited amount of restricted stock and stock options that still can be granted under the latest ?restrictions.? Equity compensation is the pay component that has gotten most out-of-line over the past 20 years. It (as well as severance/retirement/ golden parachutes) has caused the greatest disparity between CEO compensation and that of the next tier of executives (and employees generally).

The new $500,000 cap provision does prevent executives from realizing the gains in their equity compensation until after the government is paid back. But there are two major problems with how this applies:

1. It does not apply to past equity compensation. Warren Buffet imposed a similar cap on Goldman Sachs’ executives, but his restriction applies to all the equity held by the top executives. It is not limited just to future grants, as is the case with the new government restriction. So Buffett?s provision wisely requires that the key decision-makers keep all their “skin in the game” until he gets paid off.

2. Although it may help protect the government?s investment, it is short-sighted and fails to protect the shareholders? best long term interests. The holding period should be the longer of age 65 or two years following retirement. That will ensure that the key executives make decisions that truly are in the long-term best interests of the company (as opposed to decisions aimed at a shorter period - after which an executive could depart, taking all his marbles with him).Note that holding-through-retirement also addresses the major concern about top executives? unnecessary risk taking.

Holding equity compensation through retirement is perhaps the single most important?and fundamental - fix to getting executive compensation back on track because it also addresses all the past outstanding excessive option and restricted stock grants. And, by requiring CEOs to keep their skin in the game for the long term, it will go a long way to restoring public trust in our companies and our market, which is so important to restoring stability to the markets.

Needless to say, the fundamental hold-through-retirement fix should apply to all companies - not just TARP financial institutions?and can be adopted at the same time that Congress adopts say-on-pay legislation (which everyone assumes will happen in the coming weeks. It will have much greater impact and do more good than say-on-pay. This November-December 2008 issue of The Corporate Executive (which we have posted on CompensationStandards.com on a complimentary basis) explains why - and how - to implement hold-through-retirement.

Here are three additional points about the $500,000 cap:

1. Just as the $1 million cap was a major cause for the runaway increase in equity compensation over the past decade, the new unlimited opening for restricted stock will further exacerbate the problem. As an example, the typical time vested restricted stock grant does not qualify for the $1 million cap ?performance-based? compensation exemption, thus more companies and shareholders will suffer the cost of the lost tax deductions as these very large amounts vest. (So, once again the top executives will benefit at the expense of shareholders.)

2. One reasonable fix to the tax deductibility problem would be to require real performance conditions (in addition to time vesting) upon the vesting of the equity.

3. To address the ?unlimited ? new grants problem, do not permit additional grants in situations where the CEO?s total accumulated equity grants exceed the company?s own historic internal pay equity ratios compared to the next tiers of executives within the company.

Full post as published by The Harvard Law School Corporate Governance Blog on February 07, 2009 (boomark / email).