NATIONAL DIRECTORS INSTITUTE NDI Executive Exchange THE NEW NORMAL An Interactive Exchange About the Future of Governance Executive Compensation Hot Topics NCO-SPONSORS DI IN-KIND SPONSORS Executive Compensation Hot Topics Roundtable November 13, 2013 Institutional Shareholder Services (ISS) Policy Update -2- ©2013 Foley & Lardner LLP 4810-4340-2006 1 Panelists ■ M. Shan Atkins The Pep Boys – Manny Moe & Jack ■ Beth I. Z. Boland Foley & Lardner LLP ■ Curt P. Creely Foley & Lardner LLP ■ Jessica S. Lochmann Allen Foley & Lardner LLP ■ Patrick McGurn Institutional Shareholder Services ■ Nicole Strothman Ideal Image Development, Inc. ■ Chuck T. Yen Aon Hewitt ©2013 Foley & Lardner LLP 4810-4340-2006 ISS 2014 Policy Changes Q 2014 draft policies released for comment in October Q Comment period closed November 4 Q Based on ISS request for comment, U.S. updates are likely to include only one pay-related change: – ISS currently bases its voting recommendations regarding “say on pay” proposals on, in part, a quantitative pay-for- performance screen that considers the “relative degree of alignment” (“RDA”) between the company’s TSR ranking and the CEO’s total pay ranking within a peer group, as measured over one-year and three-year periods – ISS indicated that it is considering eliminating the one-year period from the RDA test in favor of measuring the degree of alignment over only a three-year period Q Final 2014 policy updates expected in November -4- ©2013 Foley & Lardner LLP 4810-4340-2006 2 SEC Rules Update CEO Pay Ratio Disclosure -5- ©2013 Foley & Lardner LLP 4810-4340-2006 Proposed CEO Pay Ratio Disclosure Rules Q Dodd-Frank requires the SEC to issue rules requiring issuers to disclose in their proxy statements a “pay ratio,” described as the following: – The median of the annual total compensation of all employees of the issuer, except the CEO; the annual total compensation of the CEO; and the ratio of those two amounts, with total compensation determined in accordance with Item 402 of Regulation S-K. Q The SEC proposed rules in September 2013 -6- ©2013 Foley & Lardner LLP 4810-4340-2006 3 Proposed CEO Pay Ratio Disclosure Rules Q Under the proposed SEC rules, for purposes of identifying the median employee: – Employee pool would include: Q All employees of the registrant and its subsidiaries on the last day of the most recently completed fiscal year Q All domestic and foreign full-time, part-time, seasonal or temporary workers employed on that day – Companies would be permitted to use their entire employee population or statistical sampling -7- ©2013 Foley & Lardner LLP 4810-4340-2006 Proposed CEO Pay Ratio Disclosure Rules Q Under the proposed SEC rules, for purposes of identifying the median employee with reference to compensation: – Companies would not be required to use the “total compensation,” as defined by the SEC for purposes of the Summary Compensation Table, for their entire employee population or the statistical sample – Instead, may use any compensation measure that is consistently applied to all employees included in the calculation, including amounts derived from payroll or tax records Q Once the median employee has been identified using such a compensation measure, must use the Summary Compensation Table definition of “total compensation” to calculate and disclose the compensation of the median employee and the ratio -8- ©2013 Foley & Lardner LLP 4810-4340-2006 4 Proposed CEO Pay Ratio Disclosure Rules Q Smaller reporting companies, emerging growth companies and foreign private issuers that file annual reports and registration statements on Form 20-F would be exempt from the pay ratio disclosures under the SEC’s proposed rules Q Effective date: – Compliance with the final rules would be required with respect to compensation for the first fiscal year commencing on or after the effective date of the rules Q If the final rules become effective in 2014, a company with a fiscal year ending on December 31 would first be required to disclose the pay ratio in its proxy or information statement for its 2016 annual meeting, based on fiscal year 2015 compensation – Disclosure of the pay ratio would be required with the annual report for that fiscal year or, if filed later, the proxy or information statement for the next annual meeting following the end of that fiscal year (subject to a requirement that the pay ratio be filed within 120 days after the end of the fiscal year) -9- ©2013 Foley & Lardner LLP 4810-4340-2006 Pay for Performance -10- ©2013 Foley & Lardner LLP 4810-4340-2006 5 Proposed CEO Pay Ratio Disclosure Rules ■ Dodd-Frank requires the SEC to issue rules requiring issuers to disclose in their proxy statements a “pay ratio,” described as the following: – The median of the annual total compensation of all employees of the issuer, except the CEO; the annual total compensation of the CEO; and the ratio of those two amounts, with total compensation determined in accordance with Item 402 of Regulation S-K. ■ The SEC proposed rules in September 2013 -11- ©2013 Foley & Lardner LLP 4810-4340-2006 Proposed CEO Pay Ratio Disclosure Rules ■ Under the proposed SEC rules, for purposes of identifying the median employee: – Employee pool would include: ■ All employees of the registrant and its subsidiaries on the last day of the most recently completed fiscal year ■ All domestic and foreign full-time, part-time, seasonal or temporary workers employed on that day – Companies would be permitted to use their entire employee population or statistical sampling -12- ©2013 Foley & Lardner LLP 4810-4340-2006 6 Proposed CEO Pay Ratio Disclosure Rules ■ Under the proposed SEC rules, for purposes of identifying the median employee with reference to compensation: – Companies would not be required to use the “total compensation,” as defined by the SEC for purposes of the Summary Compensation Table, for their entire employee population or the statistical sample – Instead, may use any compensation measure that is consistently applied to all employees included in the calculation, including amounts derived from payroll or tax records ■ Once the median employee has been identified using such a compensation measure, must use the Summary Compensation Table definition of “total compensation” to calculate and disclose the compensation of the median employee and the ratio -13- ©2013 Foley & Lardner LLP 4810-4340-2006 Proposed CEO Pay Ratio Disclosure Rules ■ Smaller reporting companies, emerging growth companies and foreign private issuers that file annual reports and registration statements on Form 20-F would be exempt from the pay ratio disclosures under the SEC’s proposed rules ■ Effective date: – Compliance with the final rules would be required with respect to compensation for the first fiscal year commencing on or after the effective date of the rules ■ if the final rules become effective in 2014, a company with a fiscal year ending on December 31 would first be required to disclose the pay ratio in its proxy or information statement for its 2016 annual meeting, based on fiscal year 2015 compensation. – Disclosure of the pay ratio would be required with the annual report for that fiscal year or, if filed later, the proxy or information statement for the next annual meeting following the end of that fiscal year (subject to a requirement that the pay ratio be filed within 120 days after the end of the fiscal year) -14- ©2013 Foley & Lardner LLP 4810-4340-2006 7 Pay for Performance -15- ©2013 Foley & Lardner LLP 4810-4340-2006 Pay for Performance ■ What Does “Pay for Performance” Really Mean in Practice? – Measuring pay ■ “Real” or “realizable” pay versus Summary Compensation Table ■ Relative – selection of peers – Measuring performance ■ Total shareholder return ■ Financial measures used for incentive compensation ■ Other measures ■ Relative – selection of peers -16- ©2013 Foley & Lardner LLP 4810-4340-2006 8 Pay for Performance ■ How should “pay for performance” be presented to shareholders (CD&A)? – Use of charts or other graphics – Location in proxy statement – Establishing workable precedent – SEC requirements: ■ GAAP presentation or reconciliation ■ Not materially misleading (balance) -17- ©2013 Foley & Lardner LLP 4810-4340-2006 Say on Pay -18- ©2013 Foley & Lardner LLP 4810-4340-2006 9 Say on Pay – 2013 Proxy Season Results ■ Overall results similar to 2012, although the results for individual companies varied – The vast majority of companies received majority shareholder support for their “say on pay” votes – According to a report published in July 2013, nearly 1/4 of the companies who received less than 70% support in 2013 received 90% or greater support in 2012 ■ See Georgeson, Facts Behind 2013 Failed Say on Pay Votes (July 29, 2013) ■ There was a correlation between failed “say on pay” votes and negative vote recommendations from proxy advisory services ■ Leading factor contributing to failed “say on pay” votes in 2013 was a perceived disconnect between pay and performance -19- ©2013 Foley & Lardner LLP 4810-4340-2006 Say on Pay – Consequences of a Failed Vote ■ The consequences of a failed “say on pay” vote include the following: – Although all companies will be required to address the “say on pay” vote and any responsive actions in CD&A, this disclosure takes on greater importance for companies with failed “say on pay” votes – Proxy advisory services may recommend withholding votes from directors if remedial measures not satisfactory – Potential for litigation -20- ©2013 Foley & Lardner LLP 4810-4340-2006 10 Say on Pay