Director Engagement on Executive Pay

Since the implementation of the mandatory advisory vote on executive compensation, shareholder engagement has become an increasingly important part of the corporate landscape. In light of this development, many companies are struggling to determine whether, when and how corporate directors should engage with shareholders on issues of executive compensation. Set forth below are considerations for companies grappling with these issues.

As a general matter, the chief executive officer of the company should be the corporation’s primary spokesperson. Having the chief executive officer speak with investors and other constituencies helps ensure that the company has a consistent message expressed by its primary architect. However, engaging on executive pay may be different than engaging on other topics for several reasons. Executive pay in general, and CEO pay in particular, is ultimately approved by the board and, accordingly, board members may be best suited to discuss it. In addition, investors sometimes perceive chief executives as being interested in issues of executive compensation. By engaging with shareholders, board members can help add credibility to, and show support for, the company’s programs and can demonstrate to investors that they are exercising their key oversight function. For these reasons, depending on the corporation’s particular facts and circumstances, board members may be best suited to engage with shareholders on issues of executive compensation.

Companies should take into account the following factors in determining whether a board member is the appropriate spokesperson on matters of executive pay:

• Knowledge of the Pay Programs: The single most important consideration is whether a director has a strong command of the matters at issue. The purpose of shareholder engagement is to enhance credibility and build trust. These goals are best achieved by the selection of a spokesperson who understands the company’s executive pay program and communicates most effectively the rationale behind it.
• Subject Matter to be Addressed: Discussions of CEO pay or similar matters may militate in favor of having a director speak with investors. If, however, the discussions are expected to focus on general compensation policy, other representatives may be better suited to the task.
• Preference of the Shareholder: Different shareholders may prefer to speak with different company representatives. Some shareholders may prefer to speak with compensation committee members, while others may not wish to engage with the board at all. Understanding the desires of the investor base and accommodating those desires, where possible, is key to successful shareholder engagement.
• Relationship of Individual with Shareholder: It is generally the case that either the lead director/independent chairman or a member of the compensation committee will be the spokesperson for the board on matters of executive pay. While the compensation committee chair might seem like the most logical choice for pay discussions because the compensation committee approves executive pay, selecting a lead director who is engaging with shareholders on other issues may help ensure consistency of message and messenger. A lead director/independent chairman who is also a member of the compensation committee may be an ideal choice.

If a corporation decides to have director engagement on matters of executive pay, such discussions should be integrated into the corporation’s overall communications strategy. Many companies have established a formal protocol for circumstances under which directors receive shareholder inquiries where requests for engagement are routed through the corporate secretary, or if the company has one, the company’s director of corporate governance. In addition, there should be a clear and fully developed understanding between management and the board regarding the nature of the topics to be discussed. Discussions should be limited to agenda items and directors should generally avoid allowing investors to move the conversation into matters of corporate strategy and financial performance unless expressly agreed in advance. Management should ensure that (1) it is fully aware of board engagement activities and (2) directors have appropriate information to respond to investor questions and deliver messages that are consistent with other corporate communications.

Companies should consider whether members of management should be present for the meetings with investors. Under most circumstances this is advisable to ensure that management is informed of the nature of the dialogue. The most likely candidates for attendance at such meetings are the general counsel, director of corporate governance, human resources executives and the head of investor relations. Whether or not these individuals attend, directors engaging with investors should provide the management team with investor feedback received during engagement so that the benefits of engagement may be fully realized. Finally, directors engaging with shareholders should be familiar with Regulation F-D so that information is not revealed to individual investors at a time that it is not disclosed to other market participants in a manner that violates the securities laws.

Shareholder outreach has for many companies become a year-round endeavor. Engaging with investors outside of the regular proxy season enables companies to establish relationships with shareholders before a crisis erupts at a time when investors are not inundated with requests for meetings. Year-round dialogue between directors and shareholders under appropriate circumstances can help a company build credibility, foster investor relations, enhance transparency and avoid surprises during proxy season when it may be too late to change investor sentiment.