MM&K news 2019

  • July 29, 2019

    Government response to BEIS Select Committee

    The Business, Energy and Industrial Strategy Committee of the House of Commons (the BEIS Select Committee) published on 26 March a further report on Executive Rewards.  It contained 16 recommendations to Government.

    The Government’s response to the report (HC2306) was published on 13 June

    The Select Committee comprises six Labour MPs (including the Committee Chair, Rachel Reeves) five Tory MPS and one SNP MP.  Not surprisingly, the Committee’s conclusions and recommendations on executive pay and corporate governance reflect the political balance of its membership. It starts with an acceptance that executive pay is disproportionate and not linked to performance and that differentials are growing; it looks for measures to control and reduce executive pay, particularly using new powers to be given to the new Regulator due to replace the FRC.

    The Government’s response is measured and, whilst it “welcomes” the Committee input, it accepts practically none of the recommendations.  Its position is that a lot of corporate governance changes have been introduced in the past 18 months: a revised UK Code, a new set of corporate governance disclosures including the pay ratio publications; most recently changes to the Directors’ Reporting Regulations to comply with the requirements of the Shareholder Rights Directive II.  In parallel the IA “name and shame” register has been introduced as have the Wates principles for private companies.  It wishes to allow these measures to bed down and be appraised before introducing any new measures.  It also takes the view that the requirements of companies and shareholders vary widely and changes are principally a matter for shareholders, not government prescription.

    MM&K believes this is a sensible response.

    Particular recommendations and responses include the following:

    Further recommendations for change (e.g. on pension contribution alignment and revisions to the Stewardship Code) appear to be already under way.

    For further information, contact Damien Knight.

  • July 29, 2019

    2019 Global Trends in Corporate Governance– progress update

    GECN is a group of independent firms, specialising in advising corporate clients on executive compensation and good governance. GECN member firms have offices in London, Geneva, Zurich, Kiev, Singapore, Melbourne, Sydney, Los Angeles and New York. MM&K has been the UK member firm since 2015

    For a few years now, GECN has conducted annual research on trends in corporate governance and published reports on its findings.

    Our reports address such topics as executive compensation, board structure and composition, and shareholder rights and give a truly global outlook on the trends in corporate governance. The 2018 Report covered 19 countries across six continents and we are aiming just as high this year.

    The 2019 Report will focus on investor perspectives about executive compensation and corporate governance, and on where investors will be directing their attention in 2019 and beyond. GECN member firms have already completed 25 in-depth interviews with leading institutional investors, proxy advisers and investment funds to identify current investor concerns and trends for the future.

    We are preparing the first draft of the 2019 Report and aim to publish the 2019 Global Trends in Corporate Governance Report by the end of August or early September.

    To request a copy of previous Global Trends in Corporate Governance Reports or for further information please contact Margarita Skripina.

  • July 25, 2019

    Green Finance Strategy will increase companies’ disclosure requirements

    On 2 July 2019, the UK Government published its Green Finance Strategy: Transforming Finance for a Greener Future, which is intended to ensure that “our financial system is robust and agile enough to respond to the profound challenges that climate change and the transition to a clean and resilient economy bring with them”.  The paper includes proposals which will increase the requirements for listed companies and pension funds to disclose climate-related risks.

    Climate change presents companies with far-reaching financial risks from physical factors, such as extreme weather events, and transition risks that arise from the adjustment to a low-carbon economy.  There are also great opportunities: the expected transition is estimated to require around $1 trillion of investments a year for the foreseeable future.

    There are already requirements for companies to disclose these risks and opportunities:

    • The UK Corporate Governance Code 2018 requires that a company’s annual report should include a description of its principal risks, what procedures are in place to identify emerging risks, and an explanation of how these are being managed or mitigated.

     • The FRC’s Guidance on the Strategic Report states “an entity should consider the risks and opportunities arising from factors such as climate change and the environment, and where material, discuss in its Strategic Report the effect of these trends on the entity’s future business model and strategy”.

    However, the Task Force on Climate-related Financial Disclosures (TCFD), in its Final Report (June 2017), found that there were inconsistencies in companies’ disclosure practices and warned that inadequate information about risks can lead to a mispricing of assets and misallocation of capital.  The report recommended a new framework for disclosing:

    • The organisation’s governance around climate-related risks and opportunities.

    • The actual and potential impacts of climate-related risks and opportunities on the organization’s businesses, strategy, and financial planning.

    • The processes used by the organization to identify, assess, and manage climate-related risks.

    • The metrics and targets used to assess and manage relevant climate-related risks and opportunities.

    Action against climate change has become more urgent following the publication in October 2018 by the Intergovernmental Panel on Climate Change (IPCC) of its Special Report: Global Warming of 1.5 ºC, which highlighted the potential catastrophic impacts of global warming if it exceeds 1.5°C above pre-industrial levels.  Following considerable political pressure, the UK Government recently legislated to reduce carbon emissions to net zero by 2050.

    In the Green Finance Strategy, the Government set out its expectation for all listed companies and large asset owners to disclose in line with the TCFD recommendations by 2022.  It has established a joint taskforce with UK regulators to “examine the most effective way to approach disclosure, including the appropriateness of mandatory reporting”.

    In addition, from October 2019, occupational pension schemes will be required to publish their policy on financially material considerations, including those arising from climate change.

    Companies will therefore need to demonstrate not only that they have a good understanding of how the risks and opportunities arising from climate change will affect them but also that they have integrated their response to these in their business strategies and governance procedures.  The Government has promised further guidance on these issues.  In the meantime, some companies will find it helpful to participate in initiatives such as CDP (formerly the Carbon Disclosure Project), the Transition Pathway Initiative (TPI) and Science-Based Targets.

    Once companies have fully integrated their plans to deal with climate change and the transition to a low carbon economy within their business strategies, they must ensure that their performance targets for executive incentive arrangements are aligned with them. The Investment Association’s Principles of Remuneration state that “Remuneration committees may consider including non-financial performance criteria in variable remuneration, for example relating to environmental, social and governance (ESG) objectives, or to particular operational or strategic objectives. ESG measures should be material to the business and quantifiable”.

    The Shell Sustainability Report 2018 demonstrates how Royal Dutch Shell has already included climate change targets as part of its executive incentives.

    For further information contact Michael Landon.

  • July 22, 2019

    Competition for Talent in the UK Private Equity Industry is as keen as ever

    There is no doubt that the Private Equity and Venture Capital landscape is becoming even more crowded, with new funds successfully being raised and an almost unbelievable level of “dry powder” available to be invested worldwide.  Apparently, the global figure has recently reached $2.5trn.

    Geographically, the majority of dry powder is still targeting North America, although that proportion has been declining in recent years. However, a steadily increasing proportion of available capital is focused on Asia. Europe-focused dry powder, meanwhile, has remained consistent, accounting for around a quarter of total available capital.  Nonetheless, the amount available in Europe is at a staggeringly high level.  There seems little doubt that the big corporate investors are more attracted to the private ownership model than the listed one in today’s heavily bureaucratic environment.

    From MM&K’s own direct experience, we have seen a healthy number of new clients in London, who are choosing to deploy some of their capital into UK and Continental European markets.  This has involved them deciding to set up brand new offices in London and they are now looking to recruit whole new investment and back office teams from the London market place.

    MM&K conducted a pulse survey earlier this year, seeking to identify what the latest trends were in UK PE and VC compensation levels.  The results indicated that the typical level of increase in salary for investment professionals below Partner level at the most recent pay round (i.e. mainly January 2019) was above 10%.  We see this as an amazingly high figure.

    PE firms that are looking to invest large amounts of money into European deals need to ensure they have a happy and committed workforce, particularly in their front offices.  The last thing they need is to be worrying about investment staff being tempted to look elsewhere by large new salary and bonus offers.

    We are currently marketing our 2019 PE and VC Compensation Survey and are pleased with the high levels of interest we are seeing from participating houses this year.  We have no doubt that firms are recognising the need to know what is happening to PE pay levels right now.

    There seems little doubt that the PE, VC, Infrastructure and Real Estate sectors are entering into a new boom time period in the UK.  A small part of this may be to do with the low value of the £ at the moment making investing in the UK even more attractive, counteracting the uncertainty being caused by the debacle of the Brexit process.  But we are sure the larger part is just simply to do with the wall of money out there just waiting to be invested.  Retaining and keeping motivated the best talent among one’s investment professionals has probably never been quite so important as it is today.

    For information about MM&K’s advisory services to PE Houses and our 2019 Compensation Survey, please contact Nigel Mills or Margarita Skripina.

  • July 20, 2019

    Loans from EBT – recent HMRC developments on disguised remuneration schemes

    Disguised remuneration schemes include tax avoidance arrangements that seek to avoid Income Tax and National Insurance contributions (NICs) by paying scheme users their income in the form of loans. Typically, the loans will have come from a “third party” such as an Employee Benefit Trust (“EBT”).  In the view of HMRC, the loans were never intended to be repaid and so they are no different to normal income and are taxable.

    These plans became popular in the mid-2000s but have been the subject of HMRC review for a number of years – with settlement terms being issued in November 2017.

    As part of the continued developments in respect of those who have not settled with HMRC a “charge” on any outstanding loans was introduced as from 5 April 2019.  This applies to all loans made since 6 April 1999.

    Importantly, the loans are effectively deemed to be taxable income and will be subject to income tax and NICs.

    Whilst it is likely that any organisation which has made these loans, now or historically, is already dealing with them, anyone who is unsure whether the loans connected to their EBT will be liable for the charge should ensure that it is compliant with the regulations.

    For further information or to discuss any questions you may have, contact Stuart James.

  • July 19, 2019

    All change at the FRC – or is it?

    The Financial Reporting Council (FRC) is embarking on a transition programme to morph into the Audit, Reporting and Governance Authority (“ARGA”) accountable to Parliament, after coming under heavy fire from the Kingman Review and others, including a report by the Competition and Markets Authority (CMA) on competition in the audit sector, which prompted BEIS to launch its own review of audit quality.

    Kingman was scathing, calling the FRC a “ramshackle house, cobbled together with all sorts”.  Key planks in its transition plan are diversity, culture and audit reform, with the last of these attracting much of the attention in light of recent corporate scandals. Also, the CMA has proposed that accounting firms should split their audit and advisory divisions and that FTSE 100 and 250 audits should be carried out by two firms, one of which is not in the “Big 4”.

    Whilst Kingman called for the FRC to have statutory recognition and funding, it remains dependent in part on contributions from audit firms. Not surprisingly, perhaps, responses from some of those firms focus on and raise a number of questions about the FRC’s increased budget proposals for 2019/20.

    The FRC’s transition plan includes the recruitment of 80 additional staff. What will they do? Some of them will be needed to resource the planned increase in the number of corporate reviews it plans to carry out. However, questions have been raised about the FRC’s ability to recruit in large numbers in a period of change and uncertainty. Scottish accountancy body, ICAS, has made the thoughtful observation that FRC has struggled to recruit at senior level and, to operate optimally, needs to address any perceived skills gaps. It should consider whether “existing resources need to be recalibrated”. In other words, does the FRC have the right people? Is it fit-for-purpose?

    Kingman picked-up on the FRC’s methods of recruiting top staff, observing that it did not often employ open advertising or use headhunters and sometimes relied on the alumni networks of the largest audit firms. When the FRC transforms into ARGA, Kingman recommends that there should be limited overlap in senior management. Time will tell if this comes to pass. The FRC has committed to promote transparency, integrity and diversity in business and to reverse a loss of confidence in audit. Success in achieving those noble goals will depend, in part, on there being no perception of double standards for regulator and regulated.

    Whilst audit has grabbed the headlines, the FRC (ARGA in future) also sets the UK corporate governance and stewardship codes. One of the consequences of the transition to ARGA is that the new regulator will have enhanced powers. There is a strong implication that the new regulator will be tougher than the old.

    High standards of corporate governance are essential for a sustainable and successful business community and the UK leads the way. The case for change at the FRC is strong. The adoption of Kingman’s recommendations is evidence of that. Few (neutrals) are likely to disagree that everything practicable should be done to ensure that recent audit scandals are not repeated or that examples of excessive executive pay are not checked. However, care is needed to ensure that the freedom of the majority is not restricted and the burden on them is not increased unnecessarily, through the behaviour of the minority. Political intervention in executive pay, for example, has increased. The risk that this might increase further when the regulator, ARGA, is accountable to Parliament should be resisted strongly insofar as the UK continues to operate a free market society. Quis custodiet ipsos custodes?

    For further information contact Paul Norris.

  • June 27, 2019

    PE/VC Fund Manager Compensation Survey

    MM&K has been running its PE / VC compensation survey for more than 20 years now. Our survey is not just about the numbers, although it does cover that very well.  It also provides invaluable insights into trends and direction of travel in the Private Equity / Venture Capital industry.  Not only do we analyse compensation trends, we look at headcount, revenues, the structure of management fees, carried interest plans and GP commitment levels.

    In terms of some recent remuneration trends, MM&K’s Pulse Report conducted in April showed an average 10% increase in Base Salary across all investment professionals in the latest pay rounds. This is a staggeringly high figure!

    The PE and VC world in the UK and Europe seems to be growing larger and larger.  The competition for talent is increasing all the time as new houses are coming to and opening up in the UK with big chequebooks willing to pay handsomely to recruit the best talent.

    Our PE/VC Compensation Report is only available to participants, so don’t miss out on the opportunity to participate in our 2019 PE/VC Compensation Survey. Our submission deadline is coming soon, so please do contact us now to find out more.

    For more information contact Nigel Mills or Margarita Skripina. Alternatively, please request your questionnaire here.

  • June 27, 2019

    Independent board evaluation: ICSA consultation

    The UK Corporate Governance Code requires, for listed companies, annual evaluation of the performance of the board. The chair should consider having a regular externally facilitated board evaluation.  In FTSE 350 companies this should happen at least every three years.

    The Government Department for Business, Energy and Industrial Strategy (BEIS) received responses on its Insolvency and Corporate Governance consultation paper suggesting that the standards of independent board evaluations vary considerably.  BEIS invited ICSA, the Governance Institute, to convene a group of representatives from investors, governance institutions and corporations to identify ways of improving the quality of board evaluations including the development of a code of practice.

    The group issued a report for consultation in May 2019 and consultation responses are required by Friday 5th July.

    The report begins with defining the purpose of board evaluation.  It then reviews company practice in the FTSE 350. Finally, it offers, for consultation, a draft code for external evaluation providers and a draft set of principles for companies employing them.  Following the consultation, the group will publish a report with recommendations and a revised draft of the code and principles.

    On receipt of the report, BEIS will decide whether and how to act.

    Purpose of board evaluation

    The report defines the purpose as a process of self-improvement by boards rather than providing an assessment of board effectiveness for quality assurance.  The group believes this is more realistic.  It will also demonstrate to shareholders and other stakeholders the board’s commitment to achieving high standards for themselves and the company.

    Analysis of current practice

    The report provides an analysis of current practice in the FTSE 350, using data from 2018.  In that year alone, 35% of FTSE100 and 32% of FTSE 250 companies had an externally facilitated board evaluation.  Over a three-year period nearly all companies are compliant with the UK Corporate Governance Code provision.  This figure is contrasted with only 37.5% of companies in Continental Europe over a three-year period.

    In 2018 FTSE 350 companies received evaluation services from 32 individuals or firms, a consolidation down from 51 in 2012.  Just four organisations undertook 65% of the work.

    There was limited data on the process of selection, although anecdotally it appeared to be getting more rigorous, with less reliance on mates of the chair.  Many boards had self-imposed limits on the number of times they would work with a reviewer (usually two or three times).

    In 2018 only 41% of FTSE 350 companies provided a good explanation of how the evaluation was carried out. This percentage should improve with the new provisions of the 2018 Corporate Governance Code. The same applies to a description of the outcomes and actions resulting from the evaluation.  In 2018 only 47% of companies provided this.

    Suggested actions

    The report emphasises the need for a share responsibility between the company board and the external evaluator.  The evaluator must be prepared to challenge the board’s perception of its own performance; the board in turn must be willing to allow the reviewer to do so.

    The three proposed measures from the report are:

    • A voluntary code of practice for providers of independent board evaluation, who would sign up to the code, in the same way that remuneration consultants (including MM&K) sign up to the Remuneration Consulting Code. An open question for the consultation is whether the code should be underpinned by an accreditation process or a process of oversight.

    • A set of voluntary principles for companies to apply in managing their board evaluation.

    • Guidance to companies on disclosure of the evaluation process and outcomes, to supplement the guidance issued by the FRC to support the 2018 Corporate Governance Code.

    The report includes a proposed draft for each measure and invites comments on the draft.  It leaves open whether application of the code of practice should be mandated.  It also raises the possibility of including shareholders in the process for appointing the evaluator.

    The code for reviewers

    There are three elements:

    • Competency and capacity – it provides a disclosure framework of activities and attributes against which code signatories have to demonstrate their experience and capability. The group invites view on how prescriptive this framework should be. It also wants advice on establishing processes for accreditation, oversight and monitoring that are rigorous but do no set excessive entry barriers to service provision.  Should the oversight body comprise mainly code signatories or be mainly independent?  What should its role be in:

    • Accreditation

    • Monitoring compliance

    • Operating a client complaints procedure

    • Reviewing the operating of the code and revising it where necessary?

    • Independence and integrity – the code is more prescriptive in this area – eg in dealing with conflicts of interest. The group is particularly interested in receiving advice on how to deal with conflicts of interest.

    • Client engagement – again the code is prescriptive eg in setting the terms of engagement.

    Voluntary principles for listed companies

    • Appointment of the evaluator will be the collective decision of the full board or the nomination committee – not the decision of a single board member.

    • The company will not appoint external reviewers with which it has other current commercial relationships or that have carried out more than two previous evaluations.

    • Terms of engagement will be agreed before the review commences, specifying the objectives and scope of the evaluation and the process to be followed.

    • The company will provide the reviewer with direct access to the board collectively and individually, and to all board and committee papers and to management and other stakeholders as necessary to meet the agreed objectives.

    • The company will provide the reviewer with an opportunity to present their findings to the full board.

    • The company will identify a contact with whom the reviewer can discuss in confidence any concerns about the management of the process (usually on of the independent board members).

    • In the annual report, the company will state whether it has followed these principles and whether the board reviewer is a signatory to the code. The report advises against making it mandatory for companies to employ a code signatory as the reviewer.

    • The reviewer will be asked to confirm the accuracy of the description of the findings and findings in the annual report.

    Draft disclosure guidance for listed companies

    The report also includes what is in effect an elaboration of the guidance provided with the 2018 Corporate Governance Code plus a description of the appointment and terms of reference of the independent reviewer.  It suggests:

    • How the evaluation has been conducted – objectives, scope, who involved, processes.

    • The evaluator, selection process, previous involvement, whether a signatory to the code, whether monitoring implementation of recommendations.

    • The outcomes and actions taken- the guidance recognises the commercial sensitivity of this, but encourages disclosure as far as possible to build trust.

    • How conclusions will affect board composition.

    For further information, contact Damien Knight

  • June 25, 2019

    Could negative bonuses be the future of variable pay for executives?

    Have a discussion about pay, and in particular executive pay, and invariably someone will raise the idea of “negative bonuses”.

    The concept is simple, if bonuses are meant to be a reward for delivering a performance that is above and beyond what is expected, then surely it is only ‘proper’ that an executive should have to pay something back to the company if results are shown to be below what was forecast.

    Tempting as it may be to apply such simple logic, the protection afforded to all employees (including directors) under UK employment law means that such a position would be impossible to introduce without the explicit agreement of the individual (and even then there would probably be cause for constructive dismissal given the relative bargaining powers of the parties).

    However, the core concept of “upside and downside” on bonuses is valid and there are at least two ways in which these might be successfully applied.

    Firstly, there should be nothing stopping a company from introducing this as part of a new package for a new appointment into a role.  From a practical perspective, this could be achieved through an adjustment to a mixture of salary levels and the levels at which bonuses are paid.  The commercial effect would be for someone to be paid less than a predecessor if performance was below agreed target levels.

    The second way in which bonuses could be adjusted downwards would be by using a fractional multiplier on the bonus itself. There are a number of ways this could be done. A method we have seen that is gaining popularity is to use performance management scores – where poor performance translates into a lowering of the bonus amount.

    For further information or to discuss any questions you may have, please do contact Stuart James.

    Please note that this concept of negative bonuses is different from the malus and clawback provisions discussed in a separate article in this newsletter. 

  • June 25, 2019

    Annual Returns for Share Schemes – deadline 6 July 2019

    For the tax year 2018/19, the deadline for filing the share schemes annual returns is 6 July 2019.  The filing obligation applies in relation to any new share schemes implemented as well as existing share schemes.

    HMRC do not send out any reminders. As there are automatic penalties for late-compliance, we recommend filing your online annual return without further delay.

    Please note that new share schemes will need to be registered with HMRC first before returns can be filed. The registration process may take a week or two and therefore it is imperative that the registration process is completed before the 6 July deadline.

    What needs to be done?

    Filings of the annual returns are done using HMRC’s Employment Related Securities (ERS) Online Services which can be accessed through the Employer’s PAYE online account. This can be carried out by the company directly or by any agent authorised to act on its behalf.

    Each employee share scheme requires a separate annual return. For group companies, only one company within the group needs to submit a return, irrespective of other participating group members.

    What needs to be reported?

    Each and every ‘reportable event’ that has occurred in the tax year 2018/19 must be notified to HMRC on the annual return. This includes:

    • the grant of a new option to an employee

    • the exercise of an option by an employee

    • the acquisition of shares (or interest in shares) by an employee

    • adjustment of options

    • the assignment or surrender of options by an employee for consideration

    • changes to the restrictions on shares and disqualifying events

    • any other events which give rise to a tax charge in relation to employment related securities

    If in any doubt as to whether to report a particular event, further advice should be sought.

    For tax-advantaged share schemes, namely, EMI, CSOP, SAYE and SIP schemes, each relevant event also needs to be reported to HMRC. However, each of these schemes has its own form of online annual return which should be filed separately.

    If there has not been any activity in the previous tax year, a ‘nil return’ should be submitted.

    For more information about filing of annual returns, click here.

    For further information contact Michael Landon.


  • December 18, 2018

    Launch of the Wates Principles for large private companies

    As we have already mentioned in our “Executive Remuneration Landscape” article, which was published in our September e-newsletter, 2018 has been one of the most eventful years in terms of remuneration governance in the UK.

    Earlier this year we saw the publication of the 2018 UK Corporate Governance Code, which is applicable to all companies with a premium listing on the London Stock Exchange and states general corporate governance principles for them to comply with.

    Now, as we reach the end of the year, the Wates Principles for large private companies have been launched for companies to adopt for financial years starting on or after 1 January 2019. This new requirement applies to companies that have either or both of the following characteristics, and will cover about 1,700 private businesses:

    • more than 2,000 employees;

    • a turnover of more than £200m, and a balance sheet of more than £2bn.

    The companies that adopt the Wates Principles as a suitable framework are expected to apply them fully and provide a supporting statement explaining how the Principles have been applied to create good corporate governance.

    Ahead of the Launch of the Principles, the FRC organised a consultation, which closed on the 7 September 2018. As a result of this, we can see that a lot of respondents support the initiative; however, some expressed a concern about the ambiguity of the Principles.

    We, in MM&K, support the initiative of the Wates Principles; the proposed Principles are short, logical points that map out the way towards a transparent corporate governance practice. The companies that apply the Principles will be able to develop/improve all aspects of their corporate governance. We also think that application of the Principles will generate a positive change in the relationship with stakeholders.

    Without a doubt, the “BHS scandal” was a trigger to the formalisation of corporate governance practices in the UK for private companies. It is unlikely that the Principles would have prevented the scandal from happening; however, there is hope that it would have made the board aware of the damaging effect of their actions for other stakeholders. And this is one of the purposes behind the Principles – to bring awareness into the boardroom.

    An especially remarkable aspect of the Principles, in MM&K’s view, is their “apply and explain” nature. It highlights the point that one size doesn’t fit all. Private companies have an opportunity to apply the Wates Principles the way they see fit. The freedom of interpretation makes the Principles appealing for a larger number of companies.

    On 12 December, the FRC held a launch event for the Wates Principles, which yet again affirmed that the Principles are welcomed by the attendees, as many large businesses already have similar corporate governance policies in place; the Principles are viewed as a guideline to consistent reporting practice. The discussion panel saw additional value created for companies that adopt the Principles, and view it as a competitive advantage.

    One of the points raised, as a part of a discussion at the launch even, was an adoption of a “Name and Fame” practice for monitoring purposes by the FRC. As a result, the FRC hopes to provide an illustrative guide on the good examples of the Principles’ adoption or of good corporate governance in general.

    The Wates Principles were not designed for companies to “tick the boxes”, but to provide guidance towards a healthy corporate governance environment. The Principles are designed to help companies of all sizes and types to understand the good leadership and performance essential for a successful business.

    For further information contact Margarita Skripina.

  • December 18, 2018

    The Investment Association’s new principles of remuneration for 2019

    Introduction

    On 22 November 2018, the Investment Association (“IA”), wrote to the chairmen of the remuneration committees of FTSE 350 companies attaching its updated Principles of Remuneration.

    These changes to the IA guidelines have been made against the backdrop of the new remuneration provisions in the UK Corporate Governance Code and the changes to the reporting of directors’ remuneration which is due to come into force for accounting periods beginning on or after 1 January 2019.

    However, it appears that many of these principles are aimed at reducing the risk of “excessive” pay or increasing the justifiability of pay.

    Main areas in respect of the principles of remuneration

    The main policy areas for the new principles are as follows:

    Levels of Remuneration

    It was noted that levels of remuneration must reflect corporate performance and pay should be no more than necessary and linked to long term value creation.

    The remuneration committee should seek points of reference against which appropriateness and quantum of pay is judged. Useful reference points are:

    • prescribed policy that links remuneration to overall corporate performance

    • the remuneration policy of the company as a whole

    • fairly constructed peer universe

    • remuneration paid to groups of employees including the median, upper and lower quartile through the use of pay ratios

    Discretion

    The IA observed that the discretion of the remuneration committee can assist in ensuring that executive pay schemes properly reflect overall corporate performance and value creation. It also observed that payment of variable remuneration to executive directors should be discouraged even if specific targets are met where the business suffers a negative effect and in such circumstances shareholders should be consulted.

    The IA recommends that:

    • the remuneration committee should be accountable for the way in which discretion is used and should have sufficient legal power to exercise discretion

    • discretion should be used diligently, aligned with shareholders’ interest

    • discretion to be exercised within policy boundaries

    • use of discretion should be clearly disclosed

    Pay for Employees below Board Level

    The IA recommended that:

    • the remuneration committee should have a role in pay for senior management and review workforce remuneration especially where the levels of pay or the risks associated with the activities are material to the overall performance

    • the remuneration committee should fully explain why the pay figures are appropriate where they are reported and disclose any action necessary to rectify issues

    Shareholder Consultation

    IA expressed its concern that shareholder consultation is being used as a validation of decisions taken by the remuneration committee rather than taking and understanding shareholders’ views.

    IA recommends that:

    • consultation needs to focus on major strategic remuneration issues

    • details of whole remuneration structure should be put forward so that the investors are provided with a full picture and sufficient information so that they can make an informed voting decision

    • shareholders’ feedback and response should be listened to by companies

    • remuneration committee should understand the voting policies of the shareholders

    • after the end of the consultation process and before finalising details in the remuneration report, the remuneration committee should review policies taking into account subsequent events occurring in between so that the proposal remain appropriate

    Malus and clawback

    The IA observed that the current standard trigger events (gross conduct or misstatement of results) for malus and clawback are rarely used in practice. Moreover, even if a trigger occurs, it is difficult to relate the same to an individual director. It therefore recommends a significant strengthening of these provisions.

    The new principles recommend that:

    • a “more substantial” list of specific circumstances should be established when malus and clawback could apply and they should also be disclosed to the shareholders

    • the malus and clawback terms are set out clearly and accepted by the executive (executives should sign a form of acceptance at the time of the award)

    • LTIP rules, allied documentation and communications materials are consistent in relation to the scope and application of malus and clawback provisions

    • remuneration committees should develop clear processes for assessing whether malus or clawback is triggered and how and when they will exercise a discretion to apply the such provision; the process and decision must be clearly documented

    Shareholding requirement

    The new principles include a recommendation that:

    • executive directors and senior executives should build up a significant shareholding

    • executives are encouraged to purchase shares out of their own resources to align their interests with the other shareholders

    • remuneration committees should set out minimum shareholding levels and the time period in which to reach them for executives and also the consequences for non-compliance

    • shares only count towards an executive’s shareholding if vesting is not subject to any further performance conditions; unvested shares not subject to performance conditions can count on a net of tax basis; vested shares subject to a holding period or clawback count towards the shareholding requirement

    • shareholding used in hedging arrangements or as collateral for loans should be fully disclosed

    Post-employment shareholdings

    The new principles include a recommendation that:

    • companies should set up post-termination shareholding requirement for a period of at least two years and at a level equal to the lower of the company’s shareholding requirement in force immediately before leaving or the executive’s actual shareholding on leaving

    • remuneration committee should determine the structure and processes (which might involve using an employee benefit trust or nominee arrangements) to ensure compliance with the post-employment shareholding requirement

    • the post-termination shareholding requirement should be introduced for all new and existing executive directors as soon as possible and by the next remuneration policy vote at the latest.

    Pensions

    The new principles include a recommendation that:

    • pension contribution rates for executives should be aligned with those available to the majority of the workforce

    • new executive directors and directors whose roles are being changed should be appointed on the new pension contribution level

    • contribution rates for existing directors should be reduced over time to comply with this requirement. Clearly this reduction cannot be made without the agreement of the director concerned

    Restricted Share Awards

    Restricted shares (in the UK) are awards of shares (or nil cost options) which vest to the relevant director based on time only and not according to main performance conditions. The new principles include detailed recommendation on the awards of restricted shares, including:

    • restricted share awards may be appropriate depending on the sector and situations such as turnaround situations; they should be assessed on a case-by-case basis, considering the context and the strategic rationale

    • remuneration committees should have the ability to exercise discretion on vesting outcomes to ensure there is an appropriate connection between pay and performance and non-payment on failure; some investors have expressed a preference for a quantitative underpinning condition to be achieved prior to vesting

    • vesting periods for restricted share awards should be at least five years; in addition, the post-employment shareholding rules should also apply

    • if there is a proposal to switch to restricted share awards, investors will consider the company’s previous approach to remuneration, comparing the proposed award levels, performance and vesting criteria with previous award levels and performance conditions

    • if the company moves from an LTIP to a restricted share awards, the remuneration committee should consider the appropriate discount to award levels; the discount should be at least 50% and grant levels should be held without gradual increase.

    Leaver provisions

    A new ‘leaver provision’ has been added with a recommendation that:

    • individuals who are not ‘good leavers’ should be regarded as ‘bad leavers’; in other words there should not be any ‘intermediate leaver’ category

    • for ‘good leavers’, only a portion of the award may vest based on time in service and achievement of the original performance conditions; however, if the award needs to vest early, for example on death, awards should vest by reference to performance criteria achieved over the shorter period

    • deferred bonus and LTIP awards should continue to be satisfied in shares and subject to appropriate performance conditions

    • appropriate mitigation clauses should be included in awards to deal with individuals retiring as a good leaver to take up further executive roles

    For further information contact Michael Landon.

  • December 13, 2018

    MM&K Annual Survey shows positive trends for Venture Capital Firms but a slowdown for Private Equity Firms

    MM&K has published its 2018 PE/VC Compensation Report. The Report, published annually, provides participating houses with comprehensive and incisive up-to-date information and data on both the quantum and structure of remuneration paid to individuals working in and for PE & VC fund management entities in the UK and continental Europe.

    2018 Outlook

    The outlook for 2018 is now becoming clearer and in terms of deal activity, the statistics show a rather mixed picture.

    European Private Equity (“PE”) activity, as measured by deal count, declined throughout the first three quarters of 2018. At the end of Q3, annual deal flow throughout Europe is showing a 15% decrease in the number of deals compared to the same period in 2017. Deal Value is also down by some 15%, suggesting perhaps that the uncertainty over Brexit is having an effect.

    In contrast to PE, the Venture Capital (“VC”) industry appears to be booming with European VCs deploying capital at a record pace. However, the number of deals is slightly down on the same period as last year.

    Looking at exits, it appears that there has been a 24% decrease in the number of PE exits in the first three quarters compared to the same period last year. This is in contrast to Venture, which has seen European exit activity at a four year high. The value of VC exits in the first nine months has exceeded their value in the whole of 2017.

    But on another downbeat note for PE, LPs have so far committed €56bn to European funds that closed in the first nine months of the year, a noticeable decrease in committed capital compared to the same time period last year.

    What all this will mean for PE and VC compensation next year is difficult to predict, although it suggests that the VC community will for once be seeing better rewards (relatively) than the PE houses. We would expect though that the industry’s focus on ensuring that the middle ranking investment roles are well rewarded (and therefore able to be retained within their current firms), will continue.

    Whether these trends will affect the remuneration structures of both VC and PE portfolio companies, is another question…

    If you are interested in finding out what else our 2018 Survey has to say, or are already thinking ahead to remuneration in 2019, please contact Nigel Mills or Margarita Skripina for further details.

     

  • December 5, 2018

    New Investor Remuneration Guidelines

    As we move into 2019, the investor institutions and proxy agencies have been busy, producing their revised remuneration guidelines.  After a very active year in corporate governance there are, not surprisingly, a lot of changes.

    Starting with Glass Lewis: this major voting advisory agency has just issued its 2019 Proxy Guidelines specifically for the UK .  It is really worth reading, not least because the document provides the best summary we have seen of all the UK corporate governance regulations and other initiatives from 2018, put together in one place.

    Their new guidelines focus particularly on the capability and evaluation of the board and its committees and the guidelines on remuneration itself are generally modest. One curious rule is that target bonuses should not exceed 50% of the bonus maximum.  MM&K considers that that this is misguided. The right relationship between the maximum bonus and the on-target bonus is not a matter to be dictated by rules.  It depends on the dynamics of the business, the extent to which out-performance is possible or likely and the sensitivity of forecasting.  There are businesses where target and maximum should be the same and others where 50% is fully justifiable.

    On 22 November, The Investment Association (IA) issued its new Principles of Remuneration,  with a letter to Remuneration Committee Chairs from Andrew Ninian, its Director of Stewardship and Corporate Governance.

    The new principles generally tighten up remuneration governance along the lines that the IA has been advocating since its Working Group reported in July 2016.  The circumstances and requirements for describing Malus and Clawback have been clarified further; further guidelines around the use of restricted shares have been introduced; and tougher requirements for directors’ shareholding are stipulated, including the need for a post-retirement shareholding period of at least two years.

    It is clear that the IA sees reduction in the levels of executive remuneration as a legitimate goal.  For example, it mandates that, as soon as it is achievable within the limits of existing contracts, directors’ pension contributions should be aligned with those available to the workforce.  This rule, of course, is there to meet the requirement of Provision 38 in the 2018 UK Corporate Governance Code which comes into force from 1 January.  But it is also evident that IA members are coming under pressure from their clients to keep a ceiling on pay in “issuing companies” and curbing pensions is a gesture in this direction as well as appearing to be a move to reduce the gap between executive and general employee remuneration.  The IA press release says that “investors  will expect companies to pay pension contributions to Directors in line with the rate given to the majority of the rest of the workforce, rather than giving higher payments as a mechanism for increasing total remuneration.” In fact, the level of directors’ contribution has never been used as such a mechanism.   It has its roots in history, when all directors were on final salary schemes and the level of contribution was dictated by much higher final salary directors earned.  The DC contributions have been coming down over time as they could never be sustained at a level to match the old DB benefits. In any case, it is all rather academic as the HMRC Annual Allowance reduction of contributions to £10,000 a year means that most executives will receive cash in lieu and over time we expect that to become part of salary.

    The IA is turning up the gas on corporate governance compliance. On 5 December it wrote to 32 companies in the FTSE All-Share which have appeared on the Public Register for both years. The letter expresses concern that these companies are on the Public Register for the exact same resolution in 2017 and 2018, suggesting that they did not respond sufficiently to investor views and in doing so are risking more shareholder dissent in the future. 15 of these are for Remuneration Report resolutions.

    MM&K will be writing a fuller article on the new IA guidelines for our December Newsletter. Click here to subscribe to our monthly e-newsletter.

    The new IA guidelines are reflected in new house guidelines from Legal and General Investment Managers (LGIM), who updated their Principles on Executive Remuneration on 28 November.

    The largest proxy agency, ISS, updated its 2019 Proxy Voting Guidelines for Europe, the Middle East and Africa on 19 November.  Changes include the criteria for voting down a director and a requirement for remuneration committees to develop a formal policy for post employment shareholding.  Like Glass Lewis, they say that the target bonus should typically be set at no more than 50% of the maximum bonus potential, with a demand for a robust explanation for any payments above target.  The intention behind this is to stop excessive payments for mediocre performance.  But we consider it is a blunt instrument.

    ISS have sharpened up the guidelines on LTIP performance measurement and shareholding periods. They encourage performance periods longer than three years and a total holding period of five years. They suggest that on-target vesting for LTIPs should be less than 25% if the total grant is a large multiple of salary.

    If a company’s share price has materially declined, the guidelines say, committees should consider reducing the size of LTIP grants.  ISS are trying to avoid the situation where the number of shares covered by the grant is increased in order to preserve the face value of the grant.  This can lead to excessive reward if the share price bounces back.

    Finally they advise dilution limits in line with the IA guidelines.

    The various guidelines can be downloaded by clicking on the links.  For further information contact Damien Knight.

  • November 27, 2018

    Valuation of share-based remuneration:  importance of underlying assumptions

    There are particular circumstances when a company needs to calculate a fair value of share options or performance share awards.  As the majority of performance shares in the UK are structured as nil-cost options this article refers throughout to options only. The most common circumstances are:

    1. To recognise an accounting expense under IFRS2 or FRS102 (the Finance Director’s nightmare)

    2. To agree the taxable value of the grant with HMRC – this can be needed, for example, to determine the taxable value (if any) on the acquisition of restricted securities, including growth shares or JSOP interests.

    3. To ‘benchmark’ share-based rewards against competitive practice more precisely than would be possible using the ‘face value’ of the shares involved, for example where there are different performance conditions for the company’s own share-based rewards and for those of a comparator company.

    4. To compare the value of share-based incentives with other parts of the remuneration package, where a trade-off between elements is being considered: such as a choice between share-based incentives and cash payments, or between different forms of long-term incentive.

    In each case, another party has to be satisfied that the resulting fair value is indeed fair – the auditor on behalf of the shareholders, HMRC, the remuneration committee and the executives receiving the grants.  Executives frequently prove to be the hardest to convince.

    Nevertheless, it is probable that very few of these parties really understand the mathematics involved, and most take the calculation on trust or apply some standard formula.  In fact, the final value is surprisingly sensitive to the valuation assumptions, such as share price volatility and the expected period before an option-holder chooses to exercise (“option life”).

    Volatility is the key to calculating the value of share options and performance share awards with market-based vesting hurdles.  The future pay-off from an option is a positive value or zero, depending on whether the share price at the time of exercise is higher than the exercise price (which is usually, but not necessarily, the share price at grant).  There are two components to the price increase: the underlying drift of the share price (a function of market expectations) and the extent to which the seemingly random daily changes add up to produce a resultant increase or decrease. If a share price experiences large daily fluctuations, we say that it has high volatility.  With a more volatile share price there is more chance of a high gain at exercise.  There is also more chance of a low downside in the share price, but because the pay-off cannot be less than zero (the option holder just would not exercise), this does not cancel out the extra value from the possibility of a high upside.

    Before we consider how different volatility assumptions affect the value of a share option, we need to find a workable definition of volatility.  To calculate the daily volatility, we look at the standard deviation of the logarithm of the ratio of each day’s share price to that of the previous day. We then multiple this daily volatility by the square root of the number of trading days in the year to get the annualised volatility, which is the measure used in valuing options. We take the natural logarithm because it results in a normal “bell curve” for compounding returns – which makes it possible, later in the valuation process, to model future outcomes randomly in our valuation model. A key assumption in share price forecasting is that returns are normally distributed.

    Not surprisingly, the value of a share option is highly sensitive to the assumption about share price volatility.  The graph below shows how the fair value of an option varies with volatility in a typical company. For clarity, we have expressed the fair value as a percentage of the face value of the shares under option.

    At 10% volatility, the fair value is 15% of the face value of the share. At 40% volatility, the fair value is 43% of the face value, with close to a straight line relationship in between.   The fair value per share is almost three times as much at 40% volatility as it is at 10% volatility.

    We can see that this variation matters when we make assumptions about likely future volatilities.    The reality is we do not know what the future volatility will be or how it will vary.  Most companies rely on the past as a predictor of the future.  If the company issues traded options, we can work out the implied volatility (ie the volatility assumed by market makers) but this will not apply for most smaller companies.

    The situation is even more difficult if we are dealing with a private company. The company is probably valued once a year for tax purposes or for internal share transfers.  The valuation methodology typically uses a profit multiple, or maybe a projection of future profits.  In this circumstance, there is no measurable “wiggle” in the share price.  The company has to estimate its volatility, for example by using an average of the observed volatilities of listed peer companies in its sector to provide a proxy.

    The table below shows how the volatility of one listed company’s shares has fluctuated, depending on the quarter over which it is measured.  The volatility varied by a factor of three, depending on the period chosen, ie Q1 2017 vs Q2 2015.  Neither historical period has a superior claim to representing the future.  There may be industry characteristics for 2017 which suggest that figure is a better predictor because it is more recent, but it depends largely on judgement.  As shown in the graph above, the volatility assumption has a crucial impact on the value of an option or performance share award.

    Conclusion

    Depending on the purpose of valuation, the company has a lot of opportunity to choose volatility assumptions which suit its own purpose, provided it can persuade the interested parties, HMRC, shareholders or executives, that the final result is reasonable – one might say “fair”. This persuasion/ negotiation is more important than the mathematical result.  It could well be easier to take a rule of thumb of, say, 30% of face value (MM&K uses 30% of face value for share options in surveys and this is often talked about as a market norm) and agree with the relevant parties that that is a fair figure for the particular purpose in hand.  Unfortunately HMRC is currently insisting that a Black-Scholes or similar option-pricing model is used for valuation of growth shares and JSOP interests, which therefore requires the use of a volatility assumption, even though we have shown this is effectively arbitrary.

    Volatility is not the only assumption that introduces a large degree of imprecision.  We also have to decide the likely behaviour of participants in exercising their options – in order to determine the option life (grant to exercise period).  The graph below shows the impact of different option lives for the value of the option in a typical company.  This is yet another reason for agreeing a rule of thumb.

    For further information contact Harry McCreddie

  • November 26, 2018

    Changes announced in the Budget to the rules for entrepreneurs’ relief

    Introduction

    While there had been concerns whether entrepreneurs’ relief (which reduces the rate of capital gains tax for higher and additional rate taxpayers from 20% to 10% on the first £10 million of an individual’s qualifying lifetime gains) would be significantly reduced, or even abolished, in the Autumn budget, the Chancellor has confirmed that the relief will be retained, albeit with a couple of changes.

    Until 28 October 2018, entrepreneurs’ relief was available on the disposal of shares in a trading company (or shares in a parent company of a trading group) by an employee shareholder provided that throughout the period of one year ending with the date of disposal (the ‘qualifying holding period’):

    (a) the company is the individual’s ‘personal company’, and

    (b) the individual is an officer or employee of the company (or, if the company is the parent company of a trading group, of a group member).

    For a company to be a ‘personal company’, the individual is required to hold at least:

    • 5% of the issued ordinary share capital of the company and

    • 5% of the voting rights of the company.

    Changes effective from 29 October 2018

    The first change to entrepreneurs’ relief is that, with effect from 29 October 2018, a company only qualifies as a ‘personal company’ if, in addition to the requirements relating to share capital and voting rights, the individual is also beneficially entitled to at least:

    • 5% of the company’s distributable profits, and

    • 5% of its assets available for distribution to equity holders on a winding up.

    How does this change affect employee incentives?

    There is no immediate effect on EMI Option holders, including holders of EMI Options over ‘growth shares’ (i.e. a special class of shares which gives the holder the right to share in the growth in value of the company in excess of a pre-determined hurdle). EMI Option holders continue to enjoy the benefits of entrepreneurs’ relief on the disposal of their qualifying shares.

    However, other employee shareholders who typically only hold 5% or more of a class of ‘growth shares’ with voting rights will be adversely affected. With effect from 29 October 2018, their rate of capital gains tax on disposal of their shares will increase from 10% to 20%, because they will not meet the two additional requirements of having a beneficial entitlement to 5% of the company’s assets and distributable profits.

    These changes have been brought in to counter incentive structures that the Government considers to be tax avoidance, where the incentive arrangement has been designed to comply with the letter but not the spirit of the conditions for entrepreneurs’ relief.

    Changes effective from 6 April 2019

    The second change to the entrepreneurs’ relief is that, for disposals on or after 6 April 2019, the ‘qualifying holding period’ (see above) has been increased from one year to two years.

    In other words,  entrepreneurs’ relief will only be available on the disposal of shares in a trading company (or shares in a parent company of a trading group) by an employee shareholder provided that throughout the period of two years ending with the date of disposal (the ‘qualifying holding period’):

    (a) the company is the individual’s ‘personal company’ and

    (b) the individual is an officer or employee of the company (or, if the company is the parent company of a trading group, of a group member).

    How does this change affect employee incentives?

    Practically speaking, this extension to two years is unlikely to have much impact on the majority of employee shareholders (who are otherwise eligible for entrepreneurs’ relief including EMI Option holders). The press release suggests that 95% of disposals already meet the two year qualifying holding period.  To qualify for the relief, an EMI Option holder must not dispose of the shares acquired through the option until at least two years after the option grant date.

    Dilution protection

    Legislation will also be introduced from 6 April 2019 to protect an individual’s entrepreneurs’ relief entitlement up to the point that the individual’s shareholding is diluted below the 5% qualifying requirement as a result of funds raised for commercial purposes by the issue of new shares.

    A new provision will apply where a company has issued shares for cash consideration for genuine commercial purposes, which has caused an individual’s shareholding to fall below the 5% personal company threshold. If gains on share disposals prior to the issue would have qualified for entrepreneurs’ relief, individuals may elect to be treated as having sold and reacquired their shares at market value immediately prior to the dilution, giving rise to a chargeable gain on which they can claim entrepreneurs’ relief.

    There will also be a provision for a second election to defer the gain until an actual disposal of (or of interests in) the shares or securities.

    For further information contact Michael Landon

  • November 26, 2018

    Largest AIM companies stick with UK Corporate Governance Code

    AIM companies are required to adopt a recognised corporate governance code – which one do they choose? One of the main attractions of listing on the AIM market is the reduced regulatory requirements compared to a main market listing, but do the biggest AIM companies take advantage of this, or do they stick with the UK Corporate Governance Code?

    This summer we saw a number of significant changes in light of the UK Government’s wider corporate governance agenda. Alongside the introduction of a new UK Corporate Governance Code and an updated QCA Corporate Governance Code, the amendment to AIM Rule 26 requires all AIM companies to select a corporate governance code.

    Under this rule, as of 28 September 2018, every AIM quoted company must state on its website which recognised corporate governance code it has decided to apply and to explain how it complies with that code. They also need to provide an explanation of any departures from that code.

    Many AIM quoted companies previously stated that they complied with the UK Corporate Governance Code or QCA Code “so far as appropriate for a company of this size” or something similar, i.e. that they do not comply in full (a qualified compliance statement). Such terminology is no longer acceptable and substantive disclosure is expected.

    MM&K has investigated the corporate governance statements of the 20 largest AIM quoted companies (by market capitalisation).

    11 of these companies have adopted the UK Corporate Governance Code, eight have chosen to comply with the QCA Code and one, Burford Capital, reports against the Guernsey Finance Sector Code of Corporate Governance. Research by the QCA itself into the practice of all AIM listed companies (over 900 companies) shows that 89% have adopted the QCA Code rather than the UK Corporate Governance Code. It is clear that the dominance of the UK Corporate Governance Code among the top AIM quoted companies is a feature of company size.

    In terms of level of detail, the corporate governance statements are generally similar. Companies following the UK Corporate Governance Code give a broad explanation of how they comply with its five main principles under the following headings:

    1. Leadership

    2. Effectiveness

    3. Accountability

    4. Remuneration

    5. Relations with shareholders

    Those following the QCA Code provide a broad explanation of how they comply with its 10 principles, which are:

    1. Establish a strategy and business model which promote long-term value for shareholders;

    2. Seek to understand and meet shareholders’ needs and expectations

    3. Take into account wider stakeholder and social responsibilities and their implications for long-term success

    4. Embed effective risk management, considering both opportunities and threats, throughout the organisation

    5. Maintain the board as a well-functioning, balanced team led by the chairman

    6. Ensure that, between them, the directors have the necessary up-to-date experience, skills and capabilities

    7. Evaluate board performance based on clear and relevant objectives, seeking continuous improvement

    8. Promote a corporate culture that is based on ethical values and behaviours

    9. Maintain governance structures and processes that are fit for purpose and support good decision-making by the board

    10. Communicate how the company is governed and is performing by maintaining a dialogue with shareholders and other relevant stakeholders

    The majority of companies make references in their website statement to their Annual Report, for example by providing a link to the Remuneration Report for further details on the committee’s activities. Several also point the reader towards the corporate governance statement in their Annual Report.

    At the beginning of their statement, some companies clarify whether they believe they have complied fully with the code. For example, Fevertree Drinks plc’s statement includes “Given our stage of development there are certain provisions of the Code which we do not feel are appropriate for the Group at this point in time and therefore do not fully comply, further details on which are set out below”. However, only five companies include a statement similar to Fevertree’s, with a further four proclaiming they have not departed from the code in any way. For example, Secure Income REIT plc state “As of 6 September 2018 the Board does not consider there to be any areas relevant to the Company where it does not comply with The Code”. The remaining 11 companies are less explicit on departures from their chosen code.

    The five companies referred to above are clear in explaining how and why they have not complied; a common departure was from provision B.1.2 of the UK Corporate Governance Code, which states that, except for smaller companies, at least half the board, excluding the chairman, should comprise non-executive directors determined by the board to be independent. The reason typically given is that despite non-compliance, the board has an appropriate balance of skills, knowledge and experience to enable it to discharge its duties and responsibilities effectively.

    Another trend is the inclusion of an introduction outlining the company’s beliefs and philosophy surrounding corporate governance. ASOS plc, for example, included the following one by the Chairman:

    “For ASOS Plc, ‘Doing the Right Thing’ is pivotal to every part of the business model and good corporate governance is a key part of this. As an AIM listed company with a significant market capitalisation, we recognise the need for ensuring that an effective governance framework is in place to give our external investor community and our employees and suppliers, the confidence that the business is effectively run”.

    Seven companies divulge their corporate governance philosophy (in six cases it is in the form of a chairman’s introduction).

    Hurricane Energy plc provides an interesting example of switching from the QCA to the UK Corporate Governance Code. In 2017, the Board decided to change due to the company’s size (Hurricane’s market capitalisation rose from under £65m at the start of 2016 to a peak of over £800m in 2017). Still, company size is not the only factor in deciding which code to follow, both Boohoo Group plc and RWS Holdings plc follow the QCA Code and have larger market capitalisations than Hurricane (£1.3bn and £2.4bn respectively).

    The requirement of AIM Rule 26 is very recent. The test of any code and disclosure under it is whether it provides shareholders with the information they need to exercise their stewardship or make decisions on their own behalf in the case of beneficial shareholders. We would expect shareholders to assess over the coming year whether companies are providing this information and to influence companies to change code if necessary. It will be interesting to see if the higher “outcome focus” rather than procedural focus in the QCA Code will lead some shareholders to prefer the AIM companies they invest in to use the QCA Code.

    For further information contact Harry McCreddie or Margarita Skripina

  • November 25, 2018

    Remuneration Consultants Group (“RCG”) Recruitment of New Chairman

    The Remuneration Consultants Group comprises the 11 UK consultancies that advise the remuneration committees of larger companies. The RCG manages the voluntary Code of Conduct (‘the Code’) that sets out the role of executive remuneration consultants and the professional standards by which they advise their clients. It was formed following the Walker Report in November 2009.

    The Board is looking to appoint an independent Chair to replace the current chairman who is stepping down after 8 years in the role. The Chair provides strategic direction to the Board – gained by prior experience as a senior NED able to demonstrate a clear understanding of the operation of remuneration committees (ideally as Chair of such a committee at a FTSE350 company). The time commitment is in the region of 10 days each year.

    In addition to attending Board meetings, the Chairman will be required to lead the Board in the review of the Code and of its effectiveness which may include interviews with representatives of institutional shareholders and chairs of remuneration committees on an annual basis. The Chair is responsible for leading on the appropriate communication strategy for of the Code. To date this has included occasional press interviews.

    The appointment will normally be for an initial term of three years commencing on or shortly following 1 January 2019.  Fees are currently £40,000 for this role.

    To obtain full details of the role and how to apply, please contact Damien Knight

  • October 30, 2018

    Changes announced in the Budget to the rules for entrepreneurs’ relief and their impact on employee incentives

    Entrepreneurs’ relief reduces the rate of capital gains tax from 20% to 10% on the first £10 million of an individual’s qualifying lifetime gains. It is available on the disposal of shares in a trading company (or shares in a parent company of a trading group) by an employee shareholder provided that throughout the period of one year* (see below) ending with the date of disposal:

    (a) the company is the individual’s ‘personal company’ and

    (b) the individual is an officer or employee of the company (or, if the company is the parent company of a trading group, of a group member).

    Until 28 October 2018, for a company to be a ‘personal company’, the individual was required to hold at least:

    • 5% of the issued ordinary share capital of the company and

    • 5% of the voting rights of the company.

    Changes effective from 29 October 2018

    With effect from 29 October 2018, a company will qualify as a ‘personal company’ if, in addition to the requirements relating to share capital and voting rights, the individual is also beneficially entitled to at least:

    • 5% of the company’s distributable profits and

    • 5% of its assets available for distribution to equity holders on a winding up.

    How does this change affect employee incentives?

    There is no immediate effect on EMI Option holders, including holders of EMI Options over ‘growth shares’ (i.e. a special class of shares which gives the holder the right to share in the growth in value of the company in excess of a pre-determined hurdle). EMI Option holders continue to enjoy the benefits of entrepreneurs’ relief on the disposal of their qualifying shares.

    However, other employee shareholders who typically only hold 5% or more of a class of ‘growth shares’ with voting rights will be affected as, with effect from 29 October 2018, their rate of capital gains tax on disposal of their shares will increase from 10% to 20%, because they will not meet the other two requirements re having a beneficial entitlement to 5% of the company’s assets or distributable profits.

    These changes have been brought in to counter incentive structures that the Government considers to be tax avoidance, where the incentive arrangement has been designed to comply with the letter but not the spirit of the conditions for entrepreneurs’ relief.

    Note also that the Government has announced proposals to introduce new legislation, applicable to disposals after 5 April 2019, increasing from one to two years the holding period that must be met. This change will affect holders of EMI options, who after 5 April 2019 will need to have held their EMI options (or shares) for at least two years before their disposal for Entrepreneur’s Relief to be available.

    * Also for disposals after 5 April 2019 the requirements that need to be met throughout the period of one year* ending with the date of disposal (referred to in the Introduction above) will need to be met for a period of two years ending with the date of disposal.

    For further information contact Stuart James

  • October 24, 2018

    Are chief executives overpaid?

    In October 2018, Deborah Hargreaves published a new book, under the title “Are Chief Executives Overpaid?”. The question, of course, is rhetorical.

    Hargreaves is an ex Guardian business editor and FT journalist who has made it her life’s work to attack fat cat pay, which she believes is having a corrosive effect on the cohesion of our society and is putting liberal capitalism at risk.

    Hargreaves has been most effective at creating visibility in this area, although I suspect she fans the flames of discord rather than dampening them down. She was the original Director of the High Pay Commission in 2009 which was founded and funded by Compass, the centre-left pressure group, aligned with the Labour Party.  Compass’ mission was to get the Labour Party re-elected, and they figured that dissent over executive pay was a good lever for winning votes.  Mirroring the name of an existing official body, the Low Pay Commission, was a clever ploy.  It gave the High Pay Commission immediate credibility and a quasi-official status.

    In 2012, Hargreaves set up The High Pay Centre (the HPC), its successor organisation.  She describes it as an independent think tank, not aligned with any political party, although its spiritual affiliation to the Labour party is evident.

    Hargreaves has very firm beliefs on executive remuneration.  She believes it is a manifestation of human greed and is escalating far beyond the pay of the average worker and in a way that bears no relation to company performance.  Current pay differentials are essentially unfair. Chief executives are not worth anything like the amounts they are paid.  She is more sympathetic to entrepreneurs who are people creating wealth through their energy and ideas.  But “captains of industry” are essentially bureaucrats – they administer a system someone else has created. This refusal to believe they add so much more value than the average worker leads Hargreaves to use such ploys as “a captain of industry in the UK take 129 times the annual income of someone on average wages” and the more dramatic statement that before the end of the first week in January they will have “notched up” more income than the average annual wage.

    In keeping with those beliefs, Hargreaves’ language is heavily value-laden.  Executives “pocket” their pay. She talks about “late-stage capitalism”. Remuneration governance is a “religious cult”.  Thatcherism was intended to free the “supposed” entrepreneurial spirits in people.

    In her criticism of the conspiracy of excessive executive pay Hargreaves takes a swipe at pretty much everyone. US business schools take a lot of stick – principal-agent theory “doing the rounds of US business schools”.  Head-hunters are a “coterie” drawing from the same pool of usual suspects.  Institutional shareholders are too self-interested to act as effective policemen for executive excess. They provide “weak oversight”.  Government crumbles in the face of corporate UK and US. Remuneration committees are afraid of the executives. Former civil servants (in nationalised industries) were “pitched into the premier pay league”.  Remuneration consultants, the “high priests of the religion”, work to create high pay through benchmarking, chasing the upper quartile and opaque and complex incentive design.  Tony Blair and New Labour sought a cosy relationship with big business. Even Joe Public comes in for criticism: “The modern economy has succeeded in turning peoples’ needs (the basic material goods required to achieve a secure standard of living) into wants which are never-ending.”  The puritanical nature of these views indicate an aversion to people earning “loads-a-money” and a desire to produce any argument as to why they do not deserve it.

    You can feel sympathy for Hargreaves’ view point.  But what disturbs me is her careless use of statistics to support her case and the willingness of business editors and politicians of all parties to accept these statistics without question.  One notorious piece of earlier HPC “research” served up again by Hargreaves is the report of October 2014, Performance-related pay is nothing of the sort, produced for HPC by the now defunct Incomes Data Services. This was an appalling piece of sophistry: a fishing expedition which showed no real understanding of statistics or maths.  It was full of errors, but one notorious example will suffice here.  IDS plotted executive bonuses against company profit for 350 companies on one chart.  They showed there was virtually no correlation between profits and bonuses on their graph, and their conclusion was there was no relationship between pay and performance. But this was just nonsense maths. I will demonstrate why. Let us say you paid a CEO a share of profits in his or her company and nothing else, there will be a 100% correlation between his or her bonus and his or her performance.  If you accept profit as the measure of performance, his or her pay is perfectly related to performance.  Now If you do the same thing for CEOs in five companies – all paid on a profit share, but with a different profit percentage, the correlation for each company is still 100%, but the overall picture become blurred and the overall correlation falls dramatically.  Graphically, the points are all over the place because the percentage share varies by company.

    In fact IDS did this exercise not for five, but for 350 companies, the FTSE 100 and FTSE 250 combined, again making the assumption that profit was a good performance measure. Not surprisingly they found the correlation to be vanishingly small for the sample as a whole.  Does this mean that bonuses bore no relation to profit for these companies?  Of course not: you have to look at the correlation company by company, not the market as a whole– but that is what the IDS study concluded.  They then went on to do the same thing with long-term incentives and relative TSR.  Same conclusion: no relationship to performance.  At the report launch meeting, John Plender, the FT financial journalist sighed with relief “I always suspected this was the case” and heads all around the room nodded.  Since then the canard has been repeated time and again.  David Davis, the right wing Tory MP wrote an essay for the High Pay Centre in which he said “CEO pay has massively outpaced anything with which it can even remotely be correlated”.

    Rachel Reeves, chair of the Commons BEIS select committee told the Mail on Sunday the committee is going after the fat cats again later this Autumn.  Their April 2017 report said “executive pay is increasing at a rate that vastly exceeds increases for ordinary employees and which seemingly is at odds with the value created in the company”.  This statement is wrong on both counts – Minerva (formerly Manifest) data shows that, since 2010, CEO salary increases have fallen to a level much in line with the 2%-3% increases in the general workforce and this is has been the case for the past eight or so years.  What have gone up are the earnings from long-term incentives but this is precisely due to share price increases and consequent shareholder returns ie “the value created in the company”.

    Does this inaccurate propaganda matter?  Well yes it does.  It becomes accepted as fact and it affects Government policy and inflames public disenchantment with business.

    Hargreaves takes another swipe at non-executive boards, who she thinks are not doing their jobs effectively. Then she adds “ remuneration committee members are well-paid too.  Average pay for a remuneration committee member was £441,383 in 2015 (remember they are part-time jobs), 16 times the average for a UK employee”. This suspiciously precise figure is in fact dangerous rubbish.  The proxy agency Minerva produced an analysis for the MM&K Chairman and Non-Executive Director survey covering 2015.  The average total fees for a FTSE 100 NED was £115,386 (median £94,000).

    These figures are accepted by journalists and politicians simply because they want to believe them.

    This is from Margaret Hefferman in the FT on 1 October 2018:

    “Hargreaves amasses devastating data to prove that performance-related pay massively outpaces all rational measures, and that rewarding failure is routine”.

    Powerful stuff, except it is not true.  People want to believe it because they resent the pay for top executives in a way they do not, for example, resent pay for international football stars (Ronaldo and Messi each earn about £40m gross per annum at Real Madrid).

    Hargreaves devotes quite a lot of the book to arguing that companies introducing performance related pay fail to understand human motivation.  Executives do not need all this money.  But this misses the point. By blaming executive greed, Hargreaves’s book does not follow through on the real economic issue, which is low pay for the average worker. She blames low wage growth on low investment which in turn she blames on executive incentives with a short-term focus.  She would rather pay the money directly to the workers than increase investment.  She claims to believe in free markets, but doesn’t like it when the market decides some people are worth a lot of money and pays them accordingly.  This jars with her puritanical viewpoint.  Hargreaves ends her book with a menu of actions that could be taken to pull down the share of wealth taken out by top executives:

    • Put up top taxes for executives and corporations.  Block loopholes.

    • Publish tax returns on-line like Sweden does (the “shaming” approach).

    • Move corporate focus away from achieving returns for shareholders towards achieving benefits for stakeholders, especially workers so as to create a new corporate ethos. She (wrongly) claims that the legislation for requiring the delivery of benefits to wider stakeholders already exists in Section 172 of the Companies Act.  (In fact Section 172 requires boards to have due regard for the interests of these other groups, but shareholder interests clearly have primacy.)

    • Give the workers a say in bosses’ pay – by a worker representative on the remuneration committee or board (“to inject some common sense”) or even by having a worker’s vote on the remuneration policy.

    • Improve companies’ consultation with workers.  Introduce a structure of councils.

    • Give the FRC the power to investigate and prosecute company directors for poor corporate governance. Create new statutory bodies in the UK and US focused purely on corporate governance, with new enforceable guidelines.

    • Phase out LTIPs.

    • Make any bonuses a pure profit share only.

    • Pay cash only – no shares.  Executives should buy their own shares.

    • Have a binding vote once the non-binding vote falls below 75%.

    • Reduce salaries to a reasonable level – all stakeholders to decide what is “reasonable”.

    She summarises by saying “a critique of the self-serving justification is often attacked for relying on the wrong data, a misunderstanding of the way companies work and plain old envy.  But if capitalism is not seen to be fair by much of the public there will be moves for something more drastic to replace it.  It is time for the business sector to listen to the moderate voices for reform or reap the consequences of growing inequality, anti-business sentiment and possibly more dramatic clashes. If it does not rise to the challenge, the fundamental trust that makes a liberal market democracy function could be damaged beyond repair.

    In fact there are only a few companies with the excessive pay arrangements this book is railing against.  Hargreaves’ proposals would result in a regime which would restrict legitimate reward and damage companies generally, without helping in any way to address the key problem, which is low wages.

    For further information contact damien.knight@mm-k.com