C-Suite Compensation Center

We host a monthly webinar series on executive compensation. At this upcoming Thursday's webinar (held at 10:00 am Central on March 9, 2023), we are covering compensation designs and market practices associated with compensating key employees of a start-up corporation. Topics discussed include: (i) how to share in the dream without cash outlay, (ii) ideas on timing taxation with cash liquidity, (iii) employment-related considerations, and (iv) tax efficiency considerations. You can sign up HERE. Part 1 of 2 focused on "Founder" compensation designs and that slide deck can be ...

As a follow-up to my post entitled "Thoughts When Linking Public Company Executive Pay to D&I Initiatives,"  I think it is important to share, at least at a high level, the legal framework for diversity, equity and inclusion programs (i.e., it is important to successfully navigate employment laws prior to the Board taking action so that the employer can avoid legal foot faults while trying to do the right thing).  One of my partners, Emily Burkhardt Vicente (co-chair of our Labor & Employment Practice), did just that when she authored an article for Banking Exchange entitled "Enhancing ...

This Post will begin a series of blog entries focused on the topic of linking executive pay to a publicly-traded issuer's diversity and inclusion ("D&I") initiatives.  As background, there has been a recent push to hold executives accountable for the effectiveness of an issuer's D&I initiatives by linking their executive pay to the success of such initiatives.  Pretty straight forward (i.e., the success of the D&I initiative becomes one of the metrics in the issuer's performance-based compensation strategy).

On Wednesday, September 30, 2020, we will be hosting a webinar entitled "The SEC's New Human Capital Rule, Workplace Diversity and Compensation Design: Year-End Disclosures and the Board Agenda 2020".  The purpose of this webinar is to cover the SEC's new Human Capital rule and how such disclosure will interplay and impact any diversity and inclusion ("D&I") initiatives of the issuer.  In particular, the speakers will share thoughts on how top down D&I initiatives could be structured from a compensatory perspective (i.e., top down meaning D&I initiatives are incorporated into ...

We host a monthly webinar series with the intent of teaching a narrow topic deep (as opposed to covering the surface of a wide topic).  Our webinar for the month of July will be held this Thursday (July 9, 2020) at 10:00 Central and is entitled "Public Companies and ESOPs: Check Yes or No" [Sign Up Here].

The purpose of this Post is to highlight some of the administrative issues that should be vetted any time the Compensation Committee of a publicly-traded company effectuates a grant of equity to key employees.  The below list is not exclusive and is listed in no particular order:

Share Counting Provisions

• Verify the Equity Plan's Share Reserve Not Exceeded.  With respect to the upcoming grants, the Company will need to verify that the equity plan's share reserve will not be exceeded.  This has two parts.  First, to the extent the equity plan has liberal share counting, the Company will need ...

The purpose of this Post is to highlight the question of whether, in today's economic environment, deferred compensation monies should be secured with a secular trust.  This Post is Part 7 of a 7-Part series addressing compensation adjustments that Compensation Committees could consider in order to continue to incent and retain their executive officers in today’s economy.

Background

It is well-settled that the assets of non-qualified deferred compensation programs are subject to the claims of the company’s general creditors.  Securing the assets with a Rabbi Trust does nothing to change that answer.

With today's market volatility and many companies struggling to survive, some executives may not value deferred dollars because of the fear that these deferred dollars will be swept by the company's creditors.  And if the executives do not value the program, then the program is not providing the necessary incentive and retention benefits.  So does it make sense to consider a different vehicle or approach?

An executive of a publicly-traded company would not have anticipated today's market volatility and depressed stock price when he or she entered into a 10b5-1 trading plan in 2019.  As a result, this executive will probably want to amend or terminate such trading plan.  The purpose of this Post is to provide a quick reminder of the applicable issues that should be considered.  This Post is Part 6 of a 7-Part series addressing compensation adjustments that Compensation Committees could consider in order to continue to incent and retain their executive officers in today’s economy.

The purpose of this Post is remind publicly-traded companies to revisit their stock ownership policies to determine whether a temporary waiver of the policy requirements is advisable.  This Post is Part 5 of a 7-Part series addressing compensation adjustments that Compensation Committees could consider in order to continue to incent and retain their executive officers in today’s economy.

Stock Ownership Policies Typically Denominated in Dollars

Equity ownership goals within stock ownership policies are typically denominated in shares or dollars (the latter being a fixed ...

The purpose of this Post is to highlight whether Compensation Committees should be offering retention packages to their executive officers to discourage their being poached by another company.  This Post is Part 4 of a 7-Part series addressing compensation adjustments that Compensation Committees could consider in order to continue to incent and retain their executive officers in today’s economy.

Background

Many executives are suffering from depressed realizable pay levels.  This makes sense because a performance-driven compensation model would weight most of an ...

This post is part of a 7-part series addressing compensation adjustments that Compensation Committees could consider in order to continue to incent and retain their executive officers in today’s economy.  The titles of each of the 7-parts in this series are listed at the bottom of this post.   This Part 3 is entitled “Address Outstanding Performance-Based Equity Awards," and provides some alternatives that Compensation Committees could consider with respect to outstanding performance-based equity awards that have currently unachievable performance goals.  Such alternatives include (listed in no particular order, and not an exhaustive list):

This post is part of a 7-part series addressing compensation adjustments that Compensation Committees could consider in order to continue to incent and retain their executive officers in today's economy.  The titles of each of the 7-parts in this series are listed at the bottom of this post.   This Part 2 is entitled "Consider Changes to Increase Cash Flow," and provides some ideas that a Compensation Committee could implement that could work to increase the company's cash flow and produce positive proxy disclosure.  Such ideas are (listed in no particular order, and not an exhaustive list):

Today’s economic environment has resulted in substantial loss of value to many shareholders and executives of publicly traded companies (i.e., the latter losing substantial value in their stock holdings, and too, losing prospective realizable pay as a result of unattainable performance goals within their outstanding performance-based awards).  In most situations, the shareholders and the executives are aligned in such loss.  But a problem is that substantial loss at the executive level could increase undesired poaching and turnover of key executives at a time when executives should be focused on navigating the company through a reopening of the United States economy.  To overcome this problem, compensation committees of publicly traded companies ("Compensation Committees") will likely need to consider adjustments to the company’s compensation framework in order to continue to incent and retain executives.  To that end, this Part 1 (of a 7-part series) provides thoughts that the Compensation Committee should consider with respect to upcoming equity grants.

Join us on April 9, 2020 from 10:00 am to 11:00 am Central for our FREE monthly webinar on "Executive Compensation Considerations in Light of Market Volatility, Stock Prices and the Unknown," where we will discuss compensatory issues to consider as a result of failed (or failing) performance-based compensation metrics and lost value to the issuer's long-term shareholders, including:

• Considerations with respect to annual incentives for 2020;
• Thoughts with respect to outstanding performance-based equity awards where the performance conditions are not likely to be attained ...

Many publicly-traded issuers in today’s environment have outstanding equity awards with performance goals that are unlikely to be achieved.  In response, Compensation Committees of such issuers will need to strike a balance between incentivizing/retaining executives and dealing with the stark reality that shareholders have lost substantial value.  To that end, Compensation Committees are likely to discuss whether it makes sense to revise performance metrics for outstanding equity awards.  The purpose of this Post is to highlight that revising performance metrics of ...

This is a just a quick note that proposed Treasury regulations were issued under Section 162(m) that reverses a series of private letter rulings previously granted to UPREITs.  Under the proposed Treasury regulations, the $1mm deduction limitation under Section 162(m) would apply with respect to compensation that a publicly-traded REIT's covered employee receives from an operating partnership for services he or she provided on behalf of such operating partnership.  The proposed Treasury regulation is applied by potentially disallowing a REIT's distributive share of any ...

The purpose of this Post is to help issuers prepare for the upcoming 2020 proxy season by providing a non-exhaustive list of certain compensatory issues/topics to consider.  To that end (listed in no particular order):

ADOPT AN ANNUAL GRANT POLICY

• Background.  It is common for Compensation Committees to initially denominate an equity award as a dollar amount, and then convert such dollar amount into a number of shares immediately prior to the date the equity is granted (e.g., executive is to receive a number of shares equal to 20% of his/her base salary).  This approach could create ...

If an issuer is looking for a primer or introductory course on Employee Stock Purchase Plans ("ESPPs"), then check out the detailed slide deck that our David Branham put together for our monthly webinar series.  The slide deck is entitled Employee Stock Purchase Plans - The Introductory Course (November 2019 Webinar) and covers the following:

• Requirements under the tax law,
• Must have document requirements,
• Tax consequences to employees and to employers,
• Compliance requirements with respect to federal securities laws, and
• International workforce considerations.

The slide ...

It is common for a key employee to be offered an opportunity to purchase equity of the employer.  Often the key employee can personally finance such purchase.   And sometimes the employer will help the key employee finance the purchase by providing him or her with a loan equal to the purchase price.  The purpose of this Tip of the Week is to remind readers that a substantial part of the loan should be recourse.

• Risk Associated with 100% Non-Recourse Note - Key Employee Received an Option.   If the loan is 100% non-recourse (meaning the key employee has no personal assets at risk other than the ...

Compensation governance is a front-and-center topic with a continued focus on stock ownership and clawback policies (in part due to the voting guidelines of institutional investors, proxy advisory firms and the Dodd-Frank Act).  At 10:00 am Central on Thursday, October 10, 2019, in a webinar entitled "Stock Ownership Policies & Clawback Policies: Design Pointers," our Emily Cabrera will be providing a complete overview of stock ownership policies and clawback policies, including a deep dive into their related design choices, prevalence, best practices and disclosure ...

The purpose of this post is to discuss whether incentive stock option (“ISO”) awards should be designed to destroy ISO treatment with respect to terminated employees, thereby preserving the compensatory deduction to the corporation and increasing shareholder value.

As a follow-on to last month's webinar, please join us this Thursday (July 11, 2019) for our FREE webinar entitled "Multi-Disciplinary Facets to Net Withholding: It Ain't Boring".   The purpose of this presentation is to discuss administrative and design considerations when effectuating net withholding with respect to equity awards, including whether to increase the net withholding rate from the minimum statutory rate (i.e., the supplemental rate) to the maximum individual rate.   Sign up at the above link if interested ...

Please join us tomorrow morning at 10:00 Central for our free monthly webinar series.  Tomorrow's topic, "Tips to Increase the Longevity of the Equity Plan's Share Reserve," will discuss ideas on how a publicly-traded company can lengthen the longevity of its equity plan's share reserve, with the hopeful result of the company less frequently seeking shareholder approval to increase such share reserve.  More information can be found at the above hyperlink!

Employment agreements between publicly-traded issuers and their executive officers often contain severance pay provisions that are heavily negotiated at the time of entering into the agreements.  The purpose of this post is to consider whether the amount of contractually-provided severance pay could, over the employment term, be reduced proportionate to the increase in the executive's wealth accumulation over the same time period (i.e., an inversely proportional relationship between the amount of severance pay and the amount of wealth accumulation by the executive over the employment term).

It is difficult for publicly-traded issuers to solve the problems associated with outstanding stock options that are "underwater" (i.e., underwater because the exercise price of the stock option is greater than the fair market value of the underlying shares).  None of the typical solutions are attractive to publicly-traded issuers.  As a result, the underwater stock options continue to exist for 10 years from the date they were granted, and continue to decrease the life expectancy of the equity plan's share reserve.  But what if a compensatory design existed that, if implemented on the front end, could negate the possible future existence of outstanding stock options that are substantially underwater?  Would such a design be attractive to an issuer so long as the design did not destroy the retention value otherwise inherent in the stock option?  Could a stock-price forfeiture provision be a solution to the foregoing problem?  Discussing a stock-price forfeiture provision as a possible solution to negate substantially underwater stock options is this "Tip of the Week."