Outside director compensation has been on the minds of shareholders and compensation committees after a 2017 court decision and a continuing focus of proxy advisory firms that recommend how institutional investors vote on matters presented to public company stockholders.
In late 2017, the Delaware Supreme Court issued a decision involving claims of excessive nonemployee director compensation at Investors Bancorp, a Short Hills, New Jersey-based bank. In that case, the court applied a higher legal standard to decisions made by directors about their own compensation.
Since the 2017 decision, other cases have been settled involving similar claims against public companies, and more new cases were filed in 2018. The two primary proxy advisory firms have also shown an enhanced focus since the 2017 decision on compensation awarded to outside directors.
With these cases in mind, focus on outside director compensation continues, and public companies especially should review their decision-making processes about discretionary stock equity plans and non-employee director compensation.
Stockholder claims concerning the conduct of directors generally are subject to review under the business judgment rule, where the presumption is that the board acted in good faith, on an informed basis and in the best interests of stockholders.
In cases where the business judgment rule applies, the court will not second-guess a board’s business decision.
Before the Investors Bancorp decision, this was the standard applied to cases challenging director compensation decisions, with a few exceptions. In the cases where the Delaware courts reviewed challenges to director compensation approved by directors themselves, the courts recognized a stockholder ratification defense for director compensation in cases in which stockholders had approved the following:
- An equity plan that provides for fixed awards
- The specific awards made under an equity plan
- An equity plan that includes “self-executing” provisions—awards that are determined based on a formula specified in the plan without further discretion by the directors
- An equity plan that includes “meaningful limits” on director compensation—a cap on the awards that could be made to nonemployee directors
In cases where a company can take advantage of the stockholder ratification defense, the company can seek dismissal of the stockholder claim under the business judgment rule.
In the Investors Bancorp case, the Delaware Supreme Court considered the scope of stockholder ratification of director compensation decisions for the first time in more than 50 years, and in doing so limited the ratification defense when directors make equity awards to themselves under an equity incentive plan.
The Delaware court determined that the more onerous rule—the “entire fairness” test—applies, where a plaintiff can show a majority of the board was interested or lacked independence regarding the decision, or would receive a personal financial benefit from the decision.
For equity grants awarded to directors under the plan, that test requires the board to prove equity incentive awards they grant themselves are fair to the company and its stockholders. The Delaware court found that while the stockholders in the Investors Bancorp case had approved the general parameters of the equity plan that contained a limit on the aggregate amount of stock awards that could be made to directors, they had not ratified the specific awards to directors and, therefore, the business judgment rule did not apply.
The decision therefore calls into question whether the ratification defense is still feasible for plans that contain only “meaningful limits” on director awards. The Delaware Supreme Court sent the case back to the lower court to review under the entire fairness standard, and that case is currently pending.
Boards and compensation committees should consider the following to mitigate potential risks in implementing equity incentive plans or making awards to directors under existing equity incentive plans:
- Careful consideration of peer group selection
- Retention of a compensation consultant experienced in banking
- Whether to include director compensation limits in equity plans
- Ensuring that director compensation decisions are made after a robust process that accounts for market practices and peer group practices
And finally, boards and compensation committees should carefully describe the decision-making process and other key factors for equity awards to nonemployee directors in the company’s annual proxy statement.