Say on pay
Say on pay is a slogan for laws that give shareholders of corporations a vote on how much the boards of directors will be remunerated. In the field of
corporate governance, this issue has become increasingly political due to the incessant upward trend of director remuneration. The purpose is to hold directors more accountable for their performance, and tie performance to the pay directors receive.
Laws have already been introduced in Australia and the United Kingdom to allow shareholders a "non-binding", or advisory vote on pay. In the UK, s.439 of the
Companies Act 2006mandates a vote on director pay at the yearly accounts meeting. Directors are expected to have disclosed their remuneration package in a "Remuneration Report" (s.420). Failure to do this leads to fines.
In addition, UK law regulates more tightly a number of elements beyond basic director pay. Employee share schemes that directors have must be approved by ordinary resolution under the
London Stock ExchangeListing Rule 9.4.1. Under the Combined Code, with which all listed companies must comply or explain why they do not, a binding vote on approval of long term investment plans is recommended. [Combined Code B.2.4] Under s.188 of the Companies Act 2006 a shareholder resolution is necessary to approve a director’s contract lasting more than a 2 year term (reduced from approval beyond a 5 year term under the old Companies Act 1985, s.319). Lastly, frivolous categories of compensation are limited under s.215, by prohibiting payments for loss of office (i.e. no golden parachutes), except, under s.220, in respect of damages for existing obligations and pensions.
EU and US proposals
European Unionhas remained tentative about harmonising rules on CEO pay. In the High Level Group of Company Law Experts' "Final Report" in 2002, they stated they would not wish to impose a requirement for voting EU wide, yet.
"Some Member States require, or are considering requiring, a form of mandatory or advisory vote by shareholders on the remuneration policy. We do not believe a shareholder vote on the remuneration policy generally should be an EU requirement, as the effects of such a vote can be different from Member State to Member State. The important thing is that shareholders annually have the opportunity to debate the policy with the board. [High Level Group of Company Law Experts, [http://ec.europa.eu/internal_market/company/docs/modern/report_en.pdf "Final Report"] (2002) p.65; from the EU Commission's [http://ec.europa.eu/internal_market/company/modern/index_en.htm#background website] on company law modernisation.]
However, a different approach is taken to share schemes, which were recommended to be more closely scrutinised.
In the US, there is a renewed push towards passing legislation for shareholders to have a non-binding vote. The first well-publicised case of a company allowing shareholders to vote on director pay was
Aflac. [see, Claudia Deutsch, [http://www.nytimes.com/2008/04/06/business/06say.html?partner=rssnyt&emc=rss 'Say on Pay': A whisper or a shout for shareholders?] , (6.4.2008) "New York Times"] Also, presumptive Democratic Presidential nominee Barack Obamahas been calling for the legislation to be passed as a way to stop directors walking away with large salaries for having done little. [ [http://www.youtube.com/watch?v=GyGitCjosMA "Obama Calls for action on CEO pay"] (11.4.2008) on Youtube] John McCain then jumped on board two months later with the same proposal. ["Business Week", [http://www.businessweek.com/bwdaily/dnflash/content/jun2008/db20080610_480485.htm 'McCain Seeks Shareholders' Say on Pay'] (10.6.2008)]
Examples of shareholder "revolts"
What follows is a list of incidents with large UK companies, where shareholders have "revolted" against the size of pay awards given to board members since the "say on pay" legislation was introduced.
Vodafoneshareholders voted 10% against, and 30% in abstention from £13m in shares for CEO Sir Chris Gent, 25.7.2001.
Royal and Sun Allianceshareholders voted 28% against a £250,000 retention bonus for CFO Julian Hance and £1.44m severance pay for CEO Bob Mendelsohn. The share price had just dropped. 14.5.2003.
GlaxoSmithKlineshareholders voted 50.72% (advisorily) against a £22m bonus salary and stock severance package for CEO Jean-Pierre Garnier, 20.5.2003. Chairman Sir Christopher Hogg said it was just the difference in culture to the US that was holding Britain back and they should accept it. The TUC had been lobbying pension funds.
ITVshareholders were 40% against a £15m (£1.8m cash, rest shares) payoff to Chairman Michael Green. It was justified on the basis that he would have taken legal action were it not paid, because he was removed prior to the Carlton/Grenada merger.
BerkleyManaging Director and founder of the property company had 47% of shareholders vote against his £1.2m (out of a total £4.7m package) under a long term incentive scheme that he had not actually belonged to, 23.8.2003.
Unilever, 24.4.2005, former chairman Niall Fitzgerald got £1.2m after profits fell.
Tescoshareholders voted 15% against an £11.5m bonus on Sir Terry Leahy’s salary as CEO. It was linked to the success of Fresh&Easy in the US. The association of British insurers and Pirc were against. 30.6.2007.
Brian Cheffinsof Cambridge Universityand Prof. Randall Thomas of Vanderbilt Universitypredicted that a 'say on pay' could hold back sudden jumps, but it would not stop the general upward drift in pay rates (‘Should shareholders have a greater say over executive pay?’ (2001) 1 "Journal of Corporate Law Studies" 277).
* Joann Lublin [http://online.wsj.com/article/SB120795932821709333.html?mod=googlenews_wsj 'Candidates Target Executive Pay'] (12.4.2008)
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