Nature of

  Decision

  Problematic Practice​
RED FONT HIGHLIGHTS PRACTICES THAT ISS IDENTIFIES IN FAQ #44 AS HAVING "SIGNIFICANT WEIGHT" THAT "WILL LIKELY RESULT IN ADVERSE VOTE RECOMMENDATIONS."

• Abnormally large payouts without justifiable performance linkage or proper disclosure.
  
  • ​Includes performance metrics that are changed, canceled, or replaced during the performance period without adequate explanation of the action and the link to performance.
    
  • Includes incentive payouts despite failure to achieve pre-established threshold performance criteria
    
• Multi-year guaranteed awards that are not at-risk due to rigorous performance conditions. [See also FAQ #51]
  
• Significant shifts away from performance-based compensation to discretionary or fixed pay elements.
  
• Investors do not expect boards to reward executives when performance goals are not achieved, whether by lowering or waiving goals (a problematic pay practice) or granting other awards to compensate for the absent incentive payouts. [FAQ #49]
  

Retention Awards​

[FAQ 49]

• Companies that grant special retention awards of cash or equity to executives when regular incentive plan goals are not met should provide clear and compelling rationale in their proxy disclosure.
  
• Such awards should be conservative and should be an isolated/non-routine occurrence.
  
• The awards should also include performance conditions and limitations on termination-related vesting, as these will strengthen alignment of pay and performance going forward and avoid "pay for failure" scenarios if the executive is not retained.  
  

• Perquisites for former and/or retired executives, such as lifetime benefits, car allowances, personal use of corporate aircraft, or other inappropriate arrangements.
  
• Extraordinary relocation benefits (including home buyouts).
  
• Excessive amounts of perquisite compensation, or tax gross-ups.
  

• Dividends or dividend equivalents paid on unvested performance shares or units.
  
• Repricing or replacing of underwater stock options/stock appreciation rights without prior shareholder approval (including cash buyouts, option exchanges, and certain voluntary surrender of underwater options where shares surrendered may subsequently be re-granted).
  
• The automatic full vesting of equity awards upon a CIC (i.e. single trigger) is viewed as a poor practice. Vesting acceleration should require both a CIC and qualifying involuntary termination event (i.e. double-trigger). ISS considers windfall potentials when evaluating equity award treatment upon a CIC. Factors considered include, but are not limited to:[continued in FAQ # 61].
  
• Stock plans with a liberal CIC definition (e.g. low % or occurrence before CIC closing) coupled with single trigger vesting upon the CIC "are likely to receive a negative recommendation" (FAQ #63).
  

Director Compensation (Excessive)

[FAQ 66]

•  ISS may issue adverse vote recommendations for those board members responsible for approving/setting NED pay when there is a recurring pattern of excessive NED pay magnitude without a compelling rationale.
  
• Negative recommendations will be triggered only where a pattern of excessive NED pay is identified in two or more consecutive years.
  
• To determine outlier cases, ISS will compare individual non-employee director pay totals to the median of all non-employee directors at companies in the same index and industry. The purpose is to identify a pattern of extreme outliers, which historically has represented pay figures above the top 2% of all comparable directors. 
  

Amendments

 [FAQs 53-56]

• Agreements that are extended or new will face the highest scrutiny and weight in ISS' analysis.
  
• Material amendments will be considered an opportunity for the board to fix problematic issues, but as part of the holistic analysis.
  
  • Note that if an individual becomes party to a pre-existing arrangement (for example, an umbrella severance plan) as a result of becoming a named executive officer at the company, that arrangement will be considered "new" for that individual and therefore will trigger the policy.
    
• If a problematic pay practice is present in a separate plan or agreement, ISS may view the modification of an employment agreement as involving the opportunity to remove that problematic practice.
  
• ​Automatically renewing/extending agreements (including agreements that do not specify any term) are not considered a best practice, and existence of a problematic practice in such a contract is a concern. However, if an "evergreen" employment agreement is not materially amended, its automatic extension will not on its own result in an adverse vote recommendation.
  
  • An amendment is considered "material" if it involves any change that is not merely administrative or clarifying.
    
• The policy relevant for "new or extended executive agreements" applies to any and all agreements or plans under which the executive whose contract is being entered into or modified is covered. In other words, ISS may view entering into a new executive agreement (or modifying an existing agreement) as also being a modification or extension of the executive's separate arrangement that contains a problematic provision. To avoid triggering the problematic pay practice policy, the new or modified agreement should include a removal of the executive's entitlement to the problematic pay practice under the separate agreement.
  
• If a problematic pay practice provision is included in a new or modified agreement, the company can remove that provision from the agreement and disclose this action in a public filing.
  

• Other pay practices that ISS may deem problematic in a given circumstance, but not covered in the above categories.
  
• Any other provision or practice deemed to be egregious and present a significant risk to investors.
  

Time of ISS Consideration

(actions after fiscal year end)

[FAQ 50]

• For problematic provisions (excise tax gross-ups, single-trigger severance, etc.) contained in a new/materially amended executive agreement, ISS will generally issue an adverse recommendation when such provisions are disclosed by the company, even if the problematic agreement was entered into or amended after the most recent fiscal year end.
  
• For example, if a company with a calendar fiscal year discloses a new problematic agreement entered into in February following the FY end, ISS will generally recommend against the current say-on-pay proposal.