Establishing Compensation Programs for Growth in the Cannabis Industry

by | Feb 25, 2019 | Cannabis, Executive Compensation, Governance, Market Trends

Don’t let this opportunity go up in smoke!

It has been two eventful years since the Canadian federal government announced its plans to pass legislation to legalize the recreational use of marijuana. In the U.S., over 80% of the states including California, Colorado, Oregon and Washington have legalized recreational and/or medicinal use of marijuana at the state level.  The California industry alone is projected to hit over $7 billion in a few years. This has led to a growing list of emerging companies in the cannabis space seeking financing through the public markets as they see the opportunity in building up their operations to cater to a significant spike in marijuana use now that it is legalized in Canada and more and more U.S. states are legalizing it in some form or fashion. While listing on exchanges in the United States can still be problematic due to the current U.S. federal ban, Canadian stock exchanges have provided a reputable market for cannabis shares with companies listing on the TSX Venture Exchange and Canadian Securities Exchange (CSE). Certain Canadian listed companies have also been able to dual-list their shares on the NYSE such as Canopy Growth, Aurora Cannabis and Aphria with others such as CannTrust currently in the process of listing in New York. This is providing greater exposure of these stocks to institutional investors and index funds.

This shifting dynamic creates a great opportunity for companies throughout the value chain of the cannabis industry such as research and developers, producers, processors, distributors, wholesalers and retailers to realize significant growth through first mover advantages. However, it also requires that the Boards of Directors of these companies put in place the proper executive compensation structures to attract, retain and motivate its executives to execute on the overall business strategy. Companies must also be aware of the various rules and regulations that come with being a publicly-traded company. For those companies graduating up to major exchanges such as the TSX, greater scrutiny from institutional investors and proxy advisory firms such as Institutional Shareholder Services (ISS) and Glass Lewis on compensation levels and designs can also be expected. With this in mind, here are the top areas boards of publicly-listed and privately-held companies across the spectrum of the cannabis industry must consider when dealing with executive compensation matters as they continue to navigate this exciting time of expansion in 2019.

Top Area of Focus for Executive Compensation

  1. Compensation Philosophy & Peer Group
  2. Executive Compensation Levels
  3. Short-Term Incentive Design
  4. Equity Compensation & Related Documentation
  5. Employment Agreements
  6. Shareholder Engagement 

Compensation Philosophy & Peer Group

A company’s executive compensation philosophy establishes the foundation for its compensation program as it outlines the objectives of the program and the types of compensation to be offered. It also outlines the peer group that will be used to benchmark compensation levels and practices as well as a company’s desired positioning when compared to that peer group. For companies in a rapid growth phase, peers that might have been comparable a year ago from a size and strategic perspective may have become obsolete due to their size or through acquisitions. The peer group for a $100 million market cap company will look a lot different than a $1 billion company! A good rule of thumb is to look for a peer group of companies within 0.5x to 2x the current size of your organization. Then consider other characteristics such as business model, location of operations, product offerings as well as who you would look to recruit from, or who you might lose talent to, within the marketplace. This could include not only cannabis industry peers, but also other pharmaceutical or fast-moving consumer goods companies in regulated industries such as alcohol and tobacco. Companies in high growth mode will also be looking to attract key talent to drive this growth, which may require a philosophy that targets compensation levels closer to the 75th percentile as opposed to the typical peer group median.

Executive Compensation Levels

In the early stages of a business, there tends to be less concern over compensation levels as the majority of compensation is tied to equity compensation that is intended to provide a windfall if and when future share price growth is achieved. As a company matures, the need to attract and retain key talent becomes paramount and requires a better understanding of the compensation provided to similar professionals in a competitive market. In stages of rapid growth and the resulting change of peers (as described above), a competitive Base Salary provided to the CEO in one year might be well below market when compared to a different peer group of larger companies. As a company grows, the need to compete with smaller peers becomes less relevant and the need to compete for talent against larger peers becomes more pronounced. This may require adjustments to executive compensation levels. With this in mind, it is important for companies to take into account the level of growth of their company. In a rapidly changing business environment, the need to review compensation levels on an annual basis is more important to ensure the continued competitiveness of Base Salary and Incentive opportunities against an ever-evolving peer group of companies.

Short-Term Incentive Design

With cash typically at a premium in the early days of a firm, bonuses are traditionally made on a discretionary basis, if paid at all. They might also be provided in one-off situations to secure key talent from a larger competitor or different industry. In either case, there is generally a lack of structure surrounding how bonuses are to be paid on an annual basis. As a company matures, the mix between Salary, Cash Bonus and Long-Term Incentives tends to change with more weight placed on Cash Bonuses, thereby making it more important to place more structure around how bonus payouts are determined. Companies might feel that a Profit Sharing Plan is a good way to structure bonus payouts as many companies use Earnings as one of the key performance metrics to determine cash bonuses. In the cannabis industry, however, accounting rules under International Financial Reporting Standards (IFRS) require companies to value certain inventory on a mark-to-market basis which can greatly impact earnings results, either positively or negatively. This may make earnings less suitable for determining executive performance in a given year. As a result, following the incentive design of a majority of General Industry companies may not be the best way to measure performance. Given many cannabis companies are in a high growth stage, better types of performance metrics might include Revenue Growth, Cash Flow from Operations or specific milestones tied to acquisitions, production levels or Research & Development (R&D). Measuring performance across a variety of metrics (ideally 4 to 5) using a “Balanced Scorecard” design can bring more structure to determining cash bonuses while focusing executives on multiple drivers of future growth for the company. If a company is private and looking to enter the public markets, tying part of their scorecard to achieving their public listing on schedule and at a targeted valuation level can also be considered as well.

Equity Compensation & Related Documentation

The traditional thought process is that any small cap company should conserve as much cash as possible by granting stock options to its executives in order to incent these executives to significantly grow the share price of the company, which will produce wealth for both shareholders and the executives. While this approach makes sense in the early stages of a company, as a company experiences significant growth and investor interest, greater scrutiny is placed on a company’s equity compensation plans. Institutional investors and groups such as ISS and Glass Lewis pay close attention to the level of share dilution allowed under your equity compensation plans. The TSX, for example, limits companies to up to a 10% dilution, while exchanges such as the Nasdaq and TSX Venture Exchange allow up to 20% dilution in certain cases. Those companies graduating to new exchanges should be aware of any changes in the rules governing equity compensation plans as they will greatly impact the allowable room to make future equity grants. No longer can a company run itself with the notion that stock options are “free” as there is a cost associated to them and therefore more structure around how they are granted and who is eligible must be put in place. With the run up in cannabis-related stocks there is also talk of whether a “bubble” is building that is inflating the price of current shares. If the “bubble” were to burst, those executives holding stock options could see the value of their equity fall. Given this possibility, consideration of full value awards such as Restricted Share Units (RSUs) or Performance Share Units (PSUs), that can retain value even in times where share prices may drop, can provide greater retention value for executives in place of stock options. RSUs and PSUs can be less dilutive to equity compensation pools, providing more flexibility to the Board when granting equity to key talent.

Employment Agreements

With the movement from a private to publicly-traded company, or in cases of significant growth and investor interest, greater scrutiny is placed on the employment agreements of your top executives. Shareholders, along with ISS and Glass Lewis, have specific views on severance payments to be made upon a Change of Control of the company (i.e. acquisition of the company) or other termination scenarios. Severance payouts of 3x or 4x eligible compensation (typically Salary Only or Salary + Bonus) were commonly accepted in the past as the cost of doing business. The new acceptable norm is a maximum of 2x for the CEO with multiples of 1x to 1.5x for executives below the CEO, thereby lowering the cost of exiting executives upon a termination scenario. “Single Trigger” Change of Control payments based solely on control of the company changing hands, but not the termination of an executive, have been widely criticized and are being replaced by “Double Trigger” Change of Control provisions – payout is only made to the executive if control of the company changes and they are subsequently terminated from their position within a 12 to 24 month period. Boards of cannabis companies should review the severance provisions being provided to executives under existing employment agreements to ensure they are in-line with new market norms and avoid potential pushback from shareholders.

Shareholder Engagement

Annual General Meetings (AGMs) were considered a “rubber stamp” process for approval of general corporate matters such as the re-election of directors, or executive compensation. In the era of shareholder activism and the rise of proxy advisory firms such as ISS and Glass Lewis, AGMs have become forums to voice disdain, directly challenge executive decision-making, and assert the power of all shareholders to hold a board accountable for its actions. If shareholders’ concerns are not met, they will be heard through the AGM vote. With Majority Voting guidelines becoming more the norm in North America, requiring directors to step off the Board if they fail to receive more than 50% of shareholder votes at the AGM, it is becoming increasingly important for Boards to engage with their top institutional and retail shareholders to gauge their views on issues they deem important. Failure to be proactive increases the embarrassing risk of having one of their directors voted off the board. Boards that fail to embrace the latest in technology solutions dedicated to corporate governance, such as SaaS-based shareholder engagement platforms, deny themselves solutions that can greatly assist the board, executive and Investor Relations team with engagement efforts in an increasingly complex environment. These solutions should be examined as they make the process of engaging with an entire shareholder base much more effective and efficient than the traditional way of doing things.

Proper Due Diligence Maximizes Growth

The past couple of years have provided quite an opportunity for companies across the entire value chain in the cannabis industry due to the relaxation of marijuana laws across North America. While this has led to significant growth for many companies in terms of market cap, the higher amount of investor interest puts more pressure on boards to come up with market competitive compensation packages for its executives that are deemed reasonable by shareholders. By focusing on the key executive compensation issues discussed above, companies across the spectrum of the cannabis industry will be able to confidently defend the process they have followed and the decisions they have made to both shareholders and their executives through their engagement efforts. Opportunity knocks, but without the proper board due diligence the opportunity for growth presented in the current environment can quickly go up in smoke.

 

Options for Executive Compensation Disclosure

by | Jan 14, 2019 | Executive Compensation, Governance, Leadership

Understand Your Options

The clock struck midnight on December 31st, ringing in the start of a new year. While most companies work to finalize their audited financial statements in the next month or two, they also need to be aware of other important tasks required in the months ahead. This includes the calculation, review and approval of Annual Incentive payouts for 2018 as well as the review and approval of any adjustments to Base Salary, Target Annual Incentive and Long-Term Incentive opportunities for 2019. Once these approvals are made, companies must figure out how they are going to communicate the executive compensation decisions made for 2018 and potentially what shareholders can expect for compensation in 2019, to shareholders. This information is provided through a company’s Form DEF 14A in the United States or its Canadian equivalent, the Management Information Circular, also referred to as the proxy circular. Specifically, the Compensation Discussion & Analysis (“CD&A”) section is where the majority of information can be found.

Three Key Questions

When providing disclosure to shareholders, companies need to keep in mind three key questions that should be answered through its disclosure on Top 5 Named Executive Officer (“NEO”) compensation:

  • What was paid to executives?
  • How was compensation paid to executives? and
  • Why was compensation paid to executives?

This includes describing each form of compensation that is provided to executives (i.e. Base Salary, Annual Incentive, Long-Term Incentive, Benefits, Pension and Perquisites). It should also provide shareholders with information on the exact level of compensation given to each NEO for each compensation element. Lastly, disclosure should also explain why each of the compensation elements was provided to executives. This can include the purpose of each compensation element and how they link to a company’s strategy and shareholder value. Information on the performance achieved during the year that justifies the level of Bonus or Long-Term Incentive granted to the executive should be included as part of this and also, where possible, disclosure of the specific performance metrics used to determine performance and the level of performance achieved against these metrics.

How Information is Presented in the Proxy Circular

While certain forms of disclosure, such as the Summary Compensation Table outlining the value of compensation granted to a company’s Top 5 NEOs or the Outstanding Share-Based and Option-Based Awards table for NEOs, are mandated by regulators to be disclosed, companies have a variety of alternatives to choose from in terms of how much they want to present within the proxy circular. Companies typically will fall into one of three buckets in how they choose to present information:

  • Minimum Compliance
  • Minimum Compliance Plus
  • Award Seekers

Minimum Compliance

This bucket is where many Small and Micro Cap companies fall into as they have limited resources available to them in order to complete the annual proxy circular. The task is typically performed by the company’s Chief Financial Officer, Corporate Secretary (if they have one) or outsourced to outside legal counsel with the mandate to provide only what is required by the regulators in order to stay in compliance. This keeps preparation costs and the time required to complete the exercise at a low level. Minimum Compliance disclosures often do not provide information on a company’s practices in a clear and easy-to-read manner, ending up with a lot of text and little to no graphs and tables to help present information in a more readable format for shareholders. A company’s compensation practices are often not as robust as larger companies, with executives typically receiving only a Base Salary and Stock Option grants with Annual Incentives paid on more of a one-off and discretionary basis with little structure in how they are determined. This means that the company often has little to no formal process to disclose to shareholders and therefore keeps the level of disclosure at a minimum. These companies also tend to have more of a Retail shareholder base and in many cases, although not always, will face less scrutiny on their compensation practices from shareholder advisory groups, such as ISS and Glass Lewis, to improve upon their compensation disclosure practices. They can get away with providing limited information until they grow and more of an Institutional shareholder base begins to enter the stock and requires clearer information from the company.

Minimum Compliance Plus

This bucket is where the majority of companies find themselves in the market (often at Mid Cap and growing Small Cap companies) as they seek to meet the minimum required standards, but also want to improve upon that disclosure by adding in more graphs and tables to tell a better compensation story to shareholders. These companies tend to have slightly more internal resources available to them in order to complete this task and will often have a Human Resources representative work with the Corporate Secretary as well as a company’s independent compensation advisor to draft and review the annual disclosure and improve upon past practices. While they don’t necessarily want to be on the leading-edge of compensation disclosure, they better understand the value that improved compensation disclosure can bring when communicating with shareholders. Often at this stage, in a company’s life cycle, they begin to implement a more structured strategy to determine how they make annual Base Salary adjustments, determine Annual Incentive payouts and grant Long-Term Incentives to executives. Because of this added structure, a company now has a more formalized process to share with shareholders and is in a better position to disclose how it goes about determining compensation on an annual basis. Given the company’s size, they tend to have more Institutional shareholders in the stock and therefore the opinions of ISS, Glass Lewis and their Top Institutional shareholders start to have a larger impact on voting results at their Annual General Meeting. These groups demand better disclosure from companies and will ensure that their voices are heard if they do not receive the expected disclosure.

Award Seekers

This bucket is where many Large Cap companies find themselves as they seek to go well beyond the required disclosure to provide a clear, but comprehensive story to shareholders on the process followed to determine executive compensation on an annual basis. These companies have a much higher level of internal resources available to them and will put together a team made up of their Human Resources, Legal and Finance divisions to work on the annual disclosure. They will also work with their independent compensation advisor and other outside parties to produce a document that not only provides great information, but also is much more visually appealing to the reader than the typical proxy circular. These companies fully understand the value that plain language and easy-to-read material can bring when communicating with shareholders. They have had a formal compensation design in place for many years, when determining executive compensation, so the objective of disclosure is not just to provide readers with information on the structure of pay, but to provide shareholders with a better sense of a company’s annual process and any compensation improvements they have made in the past year, based on the feedback they have heard from shareholders. Given the company’s size, they have a majority of Institutional shareholders in the stock and therefore the opinions of ISS, Glass Lewis and their Top Institutional shareholders have a direct impact on the voting results at their Annual General Meeting. As an example, a negative vote recommendation from ISS, Glass Lewis or group of top shareholders has the potential to lead to a failed Say on Pay vote, which is embarrassing for the company and its Compensation Committee. Once a solid disclosure format is put in place, “award seekers” are always looking to improve upon the proxy circular, making annual disclosure an ever-evolving process as they are never satisfied.

Closing Thoughts

As you can tell, a company has a variety of ways in which it can choose to provide annual disclosure on executive compensation, which is often predicated on the exact circumstances facing the company. Does the company have a high Retail or Institutional shareholder base? Has the company received negative feedback from ISS, Glass Lewis or a Top shareholder in the past? What stage of life cycle is the company in and what kind of structure is currently in place to determine executive compensation? What resources does the company have available to it to prepare disclosure? These questions should all be asked when determining the type of disclosure, the company can provide to shareholders. However, no matter which level of disclosure a company chooses to provide, it should always remember to answer the three main questions that all shareholders want to know as it relates to compensation:

  • What was paid to executives?
  • How was compensation paid to executives? and
  • Why was compensation paid to executives?

Without answers to these three questions, a company will face scrutiny on its executive compensation disclosure practices.

Effective Board Member Orientation Pays Off

by | Jan 7, 2019 | Board Dynamics, Governance, Leadership, Productivity

Effectively Preparing New Board Members

Boards spend an unbelievable amount of time, energy and financial resources trying to find the right nominees/candidates that can add value and enhance governance oversight, but for many boards, the momentum ends once the vacancy is filled or when the infamous “orientation binder” is sent to a newly elected board member. In practical terms, this is like an Olympic marathon runner training for years and then deciding to walk their race on the day of their Olympic event – ultimately, they are not utilizing or benefiting from the hard work they put in upfront.

By not following up with a strong orientation program, boards are not preparing their new members to become true board contributors from day one, which means that they will take roughly their first year to catch up and self-learn as much as they can. Alternatively, boards can be proactive and do their best to prepare new board members upfront and help ensure they hit the ground running and are contributing on day one.

Orientation Packages

As a bare minimum, your board should have an updated orientation package ready for new members the day they are elected. Ideally, this should be kept in an electronic format, updated regularly, and perpetually available to all members. Overall, this should include:

  • A short historical overview of the organization including its mission, vision and values;
  • A year-to-date list of organizational accomplishments;
  • Staff organizational chart;
  • Charter/articles of incorporation;
  • Bylaws and committee mandates;
  • Most recent financial statements (quarterly and audited annual);
  • Most recent strategic plan and approved budget;
  • Approved minutes from the last 3 to 6 meetings;
  • Current board member bios and photos;
  • A list of links to all overarching legislation;
  • All applicable governance policies including the board’s code of conduct;
  • A copy of the director’s & officers liability insurance policy;
  • Yearly calendar of all upcoming board meetings, committee meetings and important events.

Orientation Session

As well, a general orientation session should be offered as soon as possible to help review the high-level elements of the aforementioned documents and to review the board and management’s roles and responsibilities. Understandably, it is the chair and committee chairs that attend and present at this session, but it is also a best practice to make these sessions open to all board members that can attend because it will not only provide a great opportunity for the new members to get to know the board, but also provide a discrete refresher for any board members who may feel that they could benefit but are afraid to ask. Also, in attendance should be key executive staff members who can walk participants through their roles and specific area of responsibility. As an alternative, if a general session is impossible to establish, the second-best option is to set up a day or two of individual meetings with the board chair, each of the committee chairs, and key executives.

Timely Onboarding is Key

Ideally, all of this needs to happen well in advance of the new members’ first board meeting because, by doing so, there will be a higher probability of them participating and/or contributing at an impactful level right from the very beginning. They know that there was a lot of thought put into their election onto your board and that comes with an expectation that they are bringing value to your board. If you don’t help them build momentum from the very beginning, you diminish their potential and full capacity that your board has in effectively overseeing your organization.

5 Trends for Executive Compensation in 2019

by | Dec 17, 2018 | Executive Compensation, Governance, Market Trends

USMCA, Cannabis, Energy Sector, Government, Say on Pay All Have an Impact

Several developments over the last year will have an impact on trends in executive compensation for 2019, including the North American Free Trade Agreement (NAFTA) revamp — upgraded to the United StatesMexico-Canada Agreement (USMCA) — increased scrutiny of cannabis companies, “say-on-pay” adoption, and a downturn in the energy sector.

High-sector growth will also drive additional upward pressure on talent and compensation into 2019, which will have a retention impact on the pharmaceutical, fast-moving consumer goods and tech sectors.

Tariffs and USMCA

While the full effect of U.S.-imposed tariffs on aluminum and steel and the new USMCA remain unclear, they could have an impact on how executive compensation is structured for 2019. In late 2018 and early 2019, compensation committees will be working with their advisers and CEO to determine key performance objectives for 2019 for the C-suite. This will include discussions around performance expectations for 2019 to achieve “target,” “threshold” and “superior” performance as part of finalizing the annual performance scorecard used to determine 2019 short-term incentive payouts. With U.S. tariffs and the new trade deal threatening certain Canadian companies, committees are expected to take this threat into account and set performance expectations accordingly. An emphasis on measures such as earnings or revenue may be lowered, with more put on maintaining market share, developing new markets for products or cost-cutting measures to deal with trade concerns.

Cannabis Sector

2018 has seen the continued rise in share prices of cannabis companies, leading up to the legalization of recreational cannabis use as of Oct. 17. Many of these employers have witnessed such rapid growth that their compensation programs have been unable to keep up. They have been playing catch-up by trying to implement more formalized compensation structures for executives and staff. This has forced companies to review the dilution of current equity incentive plans (for many companies, stock options only) which have been highly diluted by equity grants made to attract key executives and staff at much lower share prices. This means current equity pools have little room left to make future grants for new hires heading into 2019. Companies are forced to review who has and has not received equity grants in the past year, and also the share price these grants were made at, to determine who is in most need of a grant to keep them engaged, as well as allow for the equity pool to eventually be replenished and provide the right pay-for-performance balance.

Aside from the cannabis sector, it’s expected companies across Canada (especially small- to mid-cap companies) will review the dilution level in current equity plans when developing 2019 recommendations. For companies looking for shareholder approval of equity plans at the annual general meeting in 2019, conducting this review against Institutional Shareholder Services (ISS) and Glass Lewis guidelines will be imperative to ensure they receive positive vote recommendations and have their plans approved. In addition to equity plans, more structure is expected through the development of balanced scorecards identifying five to seven key corporate and individual performance measures for 2019 to be put in place for cannabis companies to measure 2019 performance and determine 2019 short-term incentive payouts at the end of the year. This trend is expected to grow in prevalence across Canada for all industries as ISS, Glass Lewis and shareholders demand more rigor and structure be put in place to align executive pay with performance — both on an annual and long-term basis.

Downturn in energy sector

The Canadian energy sector has witnessed another downturn in share prices, especially in the energy equipment and services industry. In 2019, energy companies are expected to review executive compensation levels and determine whether downward adjustments (similar to earlier this decade) are required to send a message to shareholders that executives are feeling the pain, too. Companies are expected to review whether short-term incentives should be paid for 2018 at all, or whether deferral into a long-term incentive grant to preserve liquidity for the business and tie executives more to the company’s long-term performance makes more sense. Employers will also face dilution concerns due to lower share prices, so they need to be diligent in ensuring they do not overly dilute their equity pools and restrict their ability to make grants in future years. Focus on the retention of critical talent and high-potentials will be imperative in 2019.

Government intervention

Government scrutiny of executive compensation has received much attention in recent years. During 2018, the Doug Ford government in Ontario rallied against executive compensation at Hydro One which led to the removal of many executives and board members. In Alberta, the NDP government has also shown a willingness to intervene to control executive compensation at universities, colleges, agencies, boards and commissions. With less than one year before an election, will the NDP government implement more rules on executive compensation in Alberta? And will Ford look to intervene in other quasi-public sector organizations? Only time will tell.

Say-on-pay adoption

Say-on-pay failures continued in 2018 with Crescent Point Energy, IMAX and Maxar Technologies each receiving less than 50 per cent approval. While say-on-pay adoption has stagnated of late, the recent announcement by Alimentation Couche-Tard that a say-on-pay vote will be held at its 2019 annual meeting sparked hope that other companies will follow. In looking at Canada’s top 100 companies, close to 30 have yet to adopt such a vote, according to Global Governance Advisors, including corporate titans such as Power Corporation of Canada, Rogers Communications, Canadian Tire and Loblaw.

Will Alimentation Couche-Tard’s decision influence these companies or will these companies continue to lag behind other large companies in Canada? With all these developments, companies are rethinking the structure of their executive compensation programs in terms of the type of compensation offered and metrics used to measure performance. And with the changing economic outlook, they are also determining how to best attract and retain the key talent needed to successfully handle the new reality.

Paul Gryglewicz is a senior partner and Peter Landers is a partner at Global Governance Advisors in Toronto, a human capital management firm providing boards of directors and senior management teams with advisory and technology solutions. For more information, visit www.ggainc.com.

Effective Performance Planning

by | Dec 3, 2018 | Board Dynamics, Executive Compensation, Governance, Leadership

All About Motivating the Right Behaviour

There’s been a lot of talk in the market place today about the value of performance plans. The naysayers claim that they are not driving performance in the way they were originally intended, and the supporters argue that all compensation should not be a guarantee. A point of intersection is the fact that everyone agrees that employees should be recognized for the contributions they make and the performance they deliver.

Open the Conversation

Organizations are notoriously bad at having “hard conversations” which are discussions on performance, behavior, or anything that can be interpreted as judgmental in any way. This is a problem because all organizations need to deal with negative activities when they arise and, more importantly, inspire the lion share of their employees to perform at their highest level. By doing so, they can maximize outcomes (sales, profits, etc.) and keep stakeholders happy. When it comes to compensation and governance, stakeholders are relatively quiet when organizations are successful and driving higher returns, but when things go south, board pressures increase because stakeholders tend to place more scrutiny on things such as compensation plans and demand changes to corporate governance.

Establish a Schedule

To properly drive performance, organizations need to first establish a schedule and stick to it! You’d be surprised how many boards get around to first discussing annual performance objectives half way through or at the end of the first quarter. This would be like betting on a horse race after the horses are out of the gates and sprinting toward the finish line. Two things happen here, staff feel that first quarter performance is not considered important and agreed targets are easier to hit. If you want employees to perform for the entire fiscal year, logically you need to agree on the performance objectives and targets before the fiscal year begins.

Implement SMARTER Objectives

A reasonable set of SMARTER objectives; Clarity and focus are other elements that help to set an organization up for success. Laundry lists of objectives do little to keep employees focus on essential outcomes and instead, have them struggle with prioritizing their time between multiple objectives that will have minimal impact on their overall incentive reward. Therefore, to help to keep employees focused and driven concise one-page scorecards are ideal and should clearly outline:

  1. Clear performance target expectations; and
  2. All rewards associated with each objective.

Once the performance cycle properly begins, hard discussions should be replaced with proactive coaching conversations focused around the scorecards where employees go into every meeting with absolute clarity on their performance and can engage in win-win conversations in overcoming barriers and/or achieving higher performance levels. Moving away from judgmental conversations and focusing discussions on performance improvement, helps engage employees on a higher level and affirms that everyone wants the same thing – higher performance.

Performance management plan naysayers most likely develop their opinion on experiences and aspects associated with poorly executed and unclear plans that do little to motivate employees. Implementing simple things such as a schedule, scorecards, and win-win coaching conversations go a long way and help ensure that performance remains a priority and that stakeholder expectations are being met.

Glass Lewis Releases 2019 Clarifying Amendments

by | Nov 21, 2018 | Glass Lewis, Governance, Regulations, United States

Summary of Policy Updates

While Glass Lewis has not changed its current approach in the following areas, it has codified certain policies in the United States:

  1. Auditor Ratification Proposals at Business Development Companies (“BDCS”)
  2. Director Recommendations on the Basis of Company Performance
  3. NOL Protective Amendments
  4. OTC-Listed Companies
  5. Quorum Requirements

Auditor Ratification Proposals at Business Development Companies (“BDCS”)

Glass Lewis clarified why they do not recommend voting against members of the audit committees of business development companies for failing to include auditor ratification on the ballot alongside a proposal to issue shares below Net Asset Value.

Director Recommendations on the Basis of Company Performance

With regards to Glass Lewis’ voting recommendations based on company performance, they have clarified that in addition to a company’s share price performance, they will consider the overall corporate governance, pay-for-performance alignment and responsiveness to shareholders. This means that their recommendation is not based solely on share price performance falling in the bottom quartile of the company’s industry sector.

NOL Protective Amendments

Previously, when companies proposed the adoption of a NOL Poison Pill, in addition to a separate proposal seeking approval of “protective amendments” to restrict certain share transfers, Glass Lewis would generally support adoption of the NOL Pill while opposing the protective amendment, on the grounds that the pill itself would be sufficiently restrictive to protect the company’s deferred tax assets. Given that it is common practice in the United States to seek approval of both proposals simultaneously in order to appropriately protect such assets, Glass Lewis has clarified that in cases where companies propose adoption of both a NOL Poison Pill and an additional bylaw amendment restricting certain share transfers, they may support both proposals as long as they find the terms to be reasonable.

OTC-Listed Companies

Glass Lewis has added a section clarifying their approach to analyzing OTC-listed companies and their recommendations relating to a lack of enough disclosure. They have clarified that in cases where shareholders are not provided with information regarding the composition of the board, its key committees or other basic governance practices, Glass Lewis will generally hold the chair of the board’s governance committee responsible, or the chair of the board in cases where no governance committee is disclosed.

Quorum Requirements

Glass Lewis has also added a section clarifying their approach to analyzing quorum requirements for shareholder meetings. Glass Lewis generally believes that a company’s quorum requirement should be set at a level high enough to ensure that a broad range of shareholders is represented in person or by proxy, but low enough that the company can deal with necessary business during the meeting. They generally believe that having a majority of the company’s outstanding shares entitled to vote is an appropriate quorum for the transaction of business at shareholder meetings. However, should a company seek shareholder approval of a lower quorum requirement, Glass Lewis will generally support a reduced quorum of at least one-third of the shares entitled to vote, either in person or by proxy. When evaluating such proposals, Glass Lewis will also consider the specific facts and circumstances of the company such as their size and shareholder base.

Global Governance Advisors (“GGA”) continues to monitor the evolving proxy voting guidelines on a regular basis and will be reporting any changes coming out of ISS in the coming weeks as they emerge. Companies should be reviewing their compensation and governance practices against these updated guidelines to ensure that their current designs align to the updated guidelines as we move into the 2019 proxy season.

For an overview of the Glass Lewis’ 2019 proxy voting guidelines for the United States and Canada, please click here.