December 20, 2010
In the past three years, international regulatory focus on remuneration has gripped the globe. The heart of the debate which arose in the context of remuneration structures in investment banking and their contribution to global financial crisis has extended past this into remuneration across a broad range of industries. This past year has seen a number of developments which have intensified in both the UK and Europe as we draw close to the year end. We look back at the year and consider where regulation and industry guidelines have emerged in the context of pay structures and recent developments in the area of transparency and taxation. We also provide a comprehensive review of the hugely anticipated new remuneration code the final version of which was published by the Financial Services Authority last Friday.
Changes to Remuneration Structures
CAPITAL REQUIREMENTS DIRECTIVE (2006/48/EC AND 2006/49/EC) (CRD3)
The Capital Requirements Directive (2006/48/EC) (CRD) was adopted in 2006 and set out the capital requirements for credit institutions and investment firms to ensure consistent application within the European Union (EU) of the international prudential framework for capital requirements, known as Basel II. Since adoption, there have been a series of proposals to amend the CRD including more recently changes to protect the interests of creditors and improve financial stability. On 7 July 2010, the European Parliament approved the text of the new EU Directive to amend CRD (CRD3) and this revised directive included the introduction of a new requirement for certain firms, to adopt remuneration policies and practices which take account of several principles covering the structure, amount and timing of bonus payments. The CRD3 measures which the European Parliament announced at the time of publication contains “some of the strictest rules in the world on bankers’ bonuses” and are required to be implemented by firms by 1 January 2011. The Council of the European Union adopted CRD3 on 11 October 2010 and the final text was published and came into force only days ago, on 14 December 2010. The Committee of European Banking Supervisors (CEBS) is tasked under CRD3 to issue guidelines to assist firms in complying with and implementing the remuneration principles. Draft guidelines were published in October 2010 and the final and revised version was released on 10 December 2010 (CEBS Guidelines).
REVISED REMUNERATION CODE
The UK Financial Services Authority (FSA) published on 17 December 2010 its Policy Statement (PS10/20) setting out feedback to its July 2010 consultation paper (CP 10/19) adopting a new Remuneration Code (Code) which comes into force on 1 January 2011. The timing of publication of the Code and its effective date leave very little time for firms impacted by the changes to comply but the delay was unavoidable due to the delay in the publication of the final versions of CRD3 and the CEBS guidelines.
A quick reminder: The first version of the FSA’s Remuneration Code was published in February 2009 as a direct response to the global financial crisis and the desire to discourage excessive risk-taking. At that time, the application of the code was directed at just under 50 FSA regulated banks, broker-dealers and building societies although the FSA did indicate that extension of the scope of the code to a broader range of market participants was under consideration. In fact, the final version of the code (which came into force almost one year ago, on 1 January 2010) applied only to half that number of FSA regulated firms. In July 2010 however following publication of CRD3, the FSA published CP 10/19 to consult on a revised version of the Code which would extend the application of the Code to almost 2,500 firms and introduce twelve new remuneration principles. This extension was confirmed in PS10/20 and the FSA calculates that now almost 2,700 firms will fall within the scope of the Code.
Who is Impacted?: (i) Firms – CRD3 significantly increased the scope of the firms to which the Code applies to extend to all banks and building societies covered by the definition of credit institution in Article 4(1) Banking Consolidation Directive, all investment firms to which the Market in Financial Instruments Directive (MiFID) applies and to all UK branches of firms whose home state is outside the EEA (collectively, Code Firms). The extension to MiFID investment firms will mean certain hedge fund managers and Undertakings for Collective Investments in Transferable Securities (UCITS) investment firms, as well as some firms that engage in corporate finance, venture capital and the provision of financial advice, and stockbrokers, will now be covered by the Code. UK branches of firms whose home state is within the EEA are not required to apply the Code as their home state will be required to apply equivalent provisions under CRD3. Where the revised Code applies to a UK firm, it will also apply to the remuneration of employees and directors of all of the UK firm’s group entities worldwide. A UK firm’s overseas operations will therefore fall within the scope of the revised Code. UK subsidiaries of non-EEA country groups will be obliged to apply the revised Code in relation to all the entities within the sub-group which undertake investment activities that are regulated by the MiFID, including entities based outside the UK. (ii) Code Staff – The Code is based upon twelve Remuneration Principles which apply primarily to Code Staff. This comprises “categories of staff, including senior management, risk takers, control functions and any employee receiving total remuneration that takes them into the same remuneration bracket as senior management and risk takers, whose professional activities have a material impact on the firm’s risk profile” (subject to a de minimis threshold – see further below). It is incumbent upon firms to compile a list of Code Staff ahead of bonus allocation period and to notify staff who will be potentially subject to the Code’s rules, including the voiding provisions (see below). To ensure a more consistent approach between firms as to who falls within the pool of Code Staff, the FSA have provided a set of non-exhaustive examples of the key positions they would expect to be classified as Code Staff. In line with CEBS Guidelines, the Code requires provisions on guaranteed bonuses (see (vi) below) to be applied on a firm-wide basis and not just to Code Staff.
Key Features of the Code:
(i) General Rule & Approach – Code Firms must “establish, implement and maintain remuneration policies, procedures and practices that are consistent with and promote sound and effective risk management”. In applying the Code, the FSA also encourages firms to have regard to applicable good practice on remuneration and corporate governance such as guidelines produced by the National Association of Pension Funds (see Annex 2, Section D below). In support of one of the central pillars in CRD3, the FSA has recognized that the policies put in place by firms should be proportionate to the nature, scale and complexity of its activities (the Proportionality Principle) and the Proportionality Principle should also be applied in assessing the pool of Code Staff. In respect of firms, the FSA has devised a high-level, four tier proportionality framework and has provided guidance on which of the principles and rules in the Code should be applied by firms depending on which tier they fall within.
(ii) Governance – The Code was revised to introduce additional governance requirements including for large firms to have Remuneration Committees, the members of whom must be non-executive directors only and mandating within the scope of responsibility of these committees, preparation of decisions on remuneration including those with implications on risk management.
(iii) Remuneration Structure – Firms will need to ensure that there is an appropriate balance between the fixed pay (such as salary) and variable compensation (such as bonus or discretionary equity awards) of each affected employee and will be expected to set maximum ratios of variable to fixed pay for different categories of staff. For those Code Staff whose remuneration exceeds the de minimis threshold, firms will need to take steps to ensure that:
a. at least 40% of variable remuneration being paid to Code Staff is deferred over at least three to five years, with awards vesting no faster than on a pro-rata basis (and the first vesting no earlier than one year after the award);
b. at least 60% of variable remuneration should be deferred (where the amount of the variable remuneration is particularly high, generally over £500,000); and
c. at least 50% of the total of any variable remuneration (including both deferred and undeferred elements) must be paid in a non-cash form, specifically in an appropriate balance of shares, share-linked instruments or equivalent non-cash instruments; and (for some firms) bonds. Firms will need to apply appropriate minimum retention periods during which time employees will not be able to dispose of the non-cash instruments.
The deferred components of both cash and share based remuneration will be subject to performance adjustment and run the risk of forfeiture (see further below).
This means that Code Staff can expect to receive just 20-30% of variable remuneration by way of an “up front” cash payment.
(iv) Pensions – The revised Code imposes a new rule that a firm’s pension policy should be in line with the business strategy, objectives, values and long-term interests of the firm. It also introduces a new requirement in relation to non-standard enhanced discretionary pension payments – these should be held for five years in the form of shares or share-like instruments.
(v) Severance Payments – The revised Code includes a new rule and guidance to ensure that payments relating to early termination of a contract (i.e. severance pay) reflect performance over time and do not reward failure. Hence, pure financial safety nets in the event of early termination are not acceptable unless overlaid with effective performance measures
(vi) Guaranteed and Retention Bonuses – The revised Code restricts guaranteed bonuses to one year. Even then, guaranteed bonuses should not be routine but may be given only to new hires in exceptional circumstances and only for the first year of service. In cases where “sign-on” bonuses are justified in order to “buy out” the arrangements offered by the employee’s previous employer the replacement bonus should not be more generous in amount and terms than the previous arrangement. The Code includes guidance that guaranteed bonuses should be subject to the same deferral criteria as other types of variable remuneration. Finally, retention bonuses should not be awarded save in exceptional circumstances, for example, the need to keep key staff following a merger process or when a firm is winding down.
(vii) Caps, Performance Measurement & Downward Adjustment Mechanisms – Whilst the Code does not include an overall cap on remuneration packages, Principle 6 requires that the firm’s total variable remuneration should not limit its ability to strengthen its capital base. All Code Firms must ensure that any measurement of performance used to calculate variable remuneration components include adjustments for all type of risks (current and potential) and takes into account, inter alia, the cost and quantity of capital. Long-term incentive plans (LTIPs) will be treated as pools of variable remuneration and therefore firms will be required to ensure that: (a) the vesting of awards granted under an LTIP is subject to appropriate performance conditions, which are adjusted for all types of current and potential future risk factors; and (b) half of the award vests after no less than three years and the remainder after no less than five years. The current assessment of the FSA is that many firms will have to adjust their existing performance measures to comply with these new rules. Under the Code, firms will be need to ensure that they have the contractual ability to reduce the amount of an employee’s deferred remuneration to ensure that the amount that the employee receives on vesting properly reflects the performance of the employee, the firm and the business in which the employee works. A downward adjustment mechanism will also need to be in place where there is evidence of employee misbehaviour or material error, or the firm (or business unit) suffers a material financial downturn or there is a material failure in risk management. Firms will need to review their existing performance measurement criteria and consider the implementation mechanisms in place and the employment law implications of making the required changes.
(viii) Hedging & Anti-Avoidance – The revised Code prohibits all forms of personal investment strategies being taken by employees to hedge or insure against the impact of these new remuneration structures and Code Firms are to maintain effective arrangements to ensure employees comply with this requirement. In addition to the specific ban on personal investment strategies being taken out by Code Staff impacted by the new rules, the FSA have also included a new rule prohibiting firms from awarding remuneration through anti-avoidance vehicles and methods. In particular, the FSA will scrutinise non-recourse loans and unusual stock pledge instruments afforded to Code Staff.
Implementation Timetable: Firms already subject to the current Code will be expected to comply with the new provisions from 1 January 2011. However, the FSA recognizes that for some firms, in particular unlisted firms, it may be find particularly challenging to satisfy the new requirement that at least 50% of variable remuneration should be paid in an appropriate non-cash form. Therefore, on the basis of the proportionality provisions in CRD 3, the FSA is prepared to accept that firms may be able to justify not being in full compliance with this specific requirement by 1 January 2011. The FSA expects, however, that the firm will be taking steps to comply with this requirement as soon as is reasonably possible, and in any event by 1 July 2011.
Monitoring & Enforcement: The FSA are proposing to include within their existing supervisory processes, an annual review of firms remuneration policies. Firms will be required to submit a minimum level of data via an electronic return which include self-certification that their policies are compliant with the Code and in certain cases the FSA may permit a “comply or explain” approach. The new Code gives the FSA express powers to prohibit Code Firms from remunerating its staff in a specified way and critically introduces new “voiding powers” which allow the FSA to render void provisions of agreements that contravene certain of the FSA prohibitions (see further below). Finally, the FSA will also have the power to require firms to recover payments made or property transferred pursuant to a void provision. We are clearly in a very different era to one of three years ago . . . .
Employment Law Challenges of Implementing the Code: The requirements imposed by the Code will have a substantial impact upon the employment relationships of large number of employees in the financial services industry and are a radical departure from the principle of freedom of contract. The employment law issues faced by Code Firms will depend upon how they have structured pay and incentives historically but the main implications include:
(i) Grandfathering – The Code makes an exception for contractual obligations entered into before 19 July 2010 although requires firms to take reasonable steps to amend or terminate such arrangements at the earliest opportunity. Whilst this is relatively straightforward in the case term of fixed term agreements that expire and can be renegotiated in the short term, it is not clear what steps an employer is required to take if an employee refuses to amend ongoing or multi-year bonus entitlements.
(ii) Voiding – The Code is backed up a statutory power which renders certain contractual provisions void to the extent that they breach Code provisions regarding: (a) guaranteed bonuses; and (b) deferral. Payments made in breach of other Code provisions or to non-Code staff are not subject to this provision. Nevertheless a voiding provision of this nature is without precedent and gives the Code real teeth.
(iii) Application to Non-UK Employees – Where the Code applies to employees based outside the UK then their contractual obligations may not be governed by English law and it is questionable whether the voiding provisions will be effective. Local courts and especially those in non-EU jurisdictions may also be less inclined to give effect to the policy intention behind the Code when construing contractual obligations.
(iv) Application to Non-Code Employees – Whilst the Code only applies to Code Staff many financial institutions may wish to adopt similar structures for a wider pool of employees. Indeed, in the final version of the Code, firms have been encouraged to apply the provisions regarding guaranteed bonuses, risk adjustment, personal investment strategies, severance and deferral on a firm wide basis to all staff. In the absence of an express regulatory requirement these arrangements may be more vulnerable to challenge by employees.
(v) Mutual Trust and Confidence – Over recent years the courts have developed an implied term of “mutual trust and confidence” in order to police the exercise of contractual discretions by employers. It is unclear if the requirements of the Code will “trump” the implied term or if the Courts will use the implied term to limit the operation of the Code in situations where they consider that it operates unfairly.
(vi) Restraint of Trade – Whilst the Code requires at least 40% of variable remuneration for Code Staff to be subject to deferred vesting over 3-5 years (with a risk of forfeiture) it does not mandate that vesting should be subject to a requirement that the employee be “in employment” at the relevant vesting date. We will wait to see whether it becomes industry practice for employers to impose “in employment” conditions in an attempt to “lock” Code Staff into their business for extended period – and the extent which employees attempt to attack these provisions as unlawful restraints of trade.
(vii) Adjustment for Clawback and Malus – It is uncontroversial that awards should be subject to adjustment for a broad range of risk factors prior to the date that they are awarded/paid (so called ex ante adjustment). However, the Code goes further and also applies to require adjustment after the award date (so called ex post adjustment). The Code only mandates ex post adjustment prior to the award vesting (so called “malus” adjustment) and does not expressly mandate ex post adjustment after the award vests (so called “clawback” arrangements). Whilst employers may wish to consider whether to impose clawback provisions they are more vulnerable to challenge.
On 11 November 2010, the Alternative Investment Fund Managers Directive (AIFM) was adopted by the European Parliament. The AIFM is expected to come into force in March 2011 with implementation by member states by March 2013.
Who is Impacted? We have previously reported on the types of firms impacted by the AIFM. The categories of persons covered are based on similar principles as embodied in CRD3, including at least “senior management, risk takers, control functions, and any employee receiving total remuneration that takes them into the same remuneration bracket as senior management and risk takers”.
General Rule & Approach: The AIFM requires alternative investment fund managers (Managers) to establish remuneration policies and practices for senior staff which are consistent with and promote sound and effective risk management. As with CRD3 and the Code, the AIFM embodies a proportionality principle and permits some flexibility for AIFMs in complying with the rules by reference to their sixe, internal organization and the nature, scope and complexity of their activities. The new European Securities and Markets Authority (ESMA) is required to issues guidelines on the remuneration provisions and it is likely that they will be based on the guidance to be finalised by CEBS as referred to above.
Governance: AIFMs which are significant in size or if any funds managed by the alternative investment fund manage (AIF) are significant, will also be required to have a remuneration committee, the members of which must be non-executive. This mirrors the CRD3 requirements.
Scope of ‘Remuneration’ & Key Requirements: The AIFM imposes restrictions on the amount and form of remuneration that an alternative investment fund manager can pay senior staff. There is no specific definition of remuneration for these purposes but the AIFM does apply to remuneration of any type paid by the AIF, any amount paid directly by the funds managed, including carried interest and any transfer of shares or units in the fund. The precise scope of what is in fact covered by the AIFMD in particular transfer of units/ shares is unclear and we await further guidance from ESMA on the impact on carried interest and co-investment arrangements in particular. The key requirements echo many of the principles in CRD3, being: (i) the need for fixed and variable remuneration to be appropriately balanced; (ii) variable compensation that can be paid without deferral must be no more than 40% of total remuneration and 60% of the variable remuneration should be deferred over at least three years; (iii) provisions for payment and vesting of deferred components should be performance related (by reference to the performance of the relevant individual, business unit and fund); (iv) at least 50% of the variable remuneration should be paid in units or shares of the AIF which should also be subject to a suitable retention policy; and (v) restrictions on guaranteed variable remuneration such as guaranteed bonuses.
For developments in the context of changes to remuneration structures in firms operating in the US financial services sectors in particular under Dodd-Frank Wall Street Reform and Consumer Protection Act, please refer to our client updates published in June and July 2010
G. “Take Aways” for 2011
2010 has been another busy year for regulators in the UK, Europe and globally. The implementation of policies to comply with the new rules on remuneration structures and disclosure are a huge challenge for firms – particularly in the context of the UK, the 2,000 + firms which will be for the first time subject to various new provisions in this area.
In a recent study published by Mercer LLC it was reported that 94% of European financial services respondents said they had cut bonuses, while 56% had increased the weight of long term incentives. About 53% say they have linked bonuses to subsequent corporate performance and about 70% of the respondents had raised basic salaries. Whilst the details of the new Code and disclosure regulations kick in, the changes to remuneration packages will continue. From a practical perspective, Code Firms need to identify Code Staff and other impacted employees, notify these employees that they may be subject to the relevant CRD3 rules; undertake an audit of the contracts, policies, pro forma contracts, Employee Handbooks and similar to ensure all relevant provisions regarding variable remuneration, bonuses and other incentive awards are consistent with the new requirements. Remuneration Committees of Code Firms may need to be reconstituted and their scope of responsibility examined to ensure they are fulfilling the duties expected of them and where appropriate seeking external aid. Reporting requirements of firms will also need to be examined to ensure adequate disclosure (whether in Annual Reports or other standalone reports) are met.
The debate on banker pay and bumper bonuses will rage on . . . in the mean time firms need to be rapidly deploying all resources to ensure they are in full compliance.
PRINCIPLES OF THE REMUNERATION CODE
Remuneration Principle 1: Risk management and risk tolerance
A firm must ensure that its remuneration policy is consistent with and promotes sound and effective risk management and does not encourage risk-taking that exceeds the level of tolerated risk of the firm.
Remuneration Principle 2: Supporting business strategy, objectives, values and long-term interests of the firm
A firm must ensure that its remuneration policy is in line with the business strategy, objectives, values and long-term interests of the firm.
Remuneration Principle 3: Avoiding conflicts of interest
A firm must ensure that its remuneration policy includes measures to avoid conflicts of interest.
Remuneration Principle 4: Governance
A firm must ensure that its governing body in its supervisory function adopts and periodically reviews the general principles of the remuneration policy and is responsible for its implementation.
A firm must ensure that the implementation of the remuneration policy is, at least annually, subject to central and independent internal review for compliance with policies and procedures for remuneration adopted by the governing body in its supervisory function.
(1) A firm that is significant in terms of its size, internal organisation and the nature, the scope and the complexity of its activities must establish a remuneration committee.
(2) The remuneration committee must be constituted in a way that enables it to exercise competent and independent judgment on remuneration policies and practices and the incentives created for managing risk, capital and liquidity.
(3) The chairman and the members of the remuneration committee must be members of the governing body who do not perform any executive function in the firm.
(4) The remuneration committee must be responsible for the preparation of decisions regarding remuneration, including those which have implications for the risk and risk management of the firm and which are to be taken by the governing body in its supervisory function.
(5) When preparing such decisions, the remuneration committee must take into account the long-term interests of shareholders, investors and other stakeholders in the firm.
Remuneration Principle 5: Control functions
A firm must ensure that employees engaged in control functions:
(1) are independent from the business units they oversee;
(2) have appropriate authority; and
(3) are remunerated:
(a) adequately to attract qualified and experienced staff; and
(b) in accordance with the achievement of the objectives linked to their functions, independent of the performance of the business areas they control.
A firm must ensure that the remuneration of the senior officers in risk management and compliance functions is directly overseen by the remuneration committee, or, if such a committee has not been established, by the governing body in its supervisory function.
Remuneration Principle 6: Remuneration and capital
A firm must ensure that total variable remuneration does not limit the firm’s ability to strengthen its capital base.
Remuneration Principle 7: Exceptional government intervention
A firm that benefits from exceptional government intervention must ensure that:
(1) variable remuneration is strictly limited as a percentage of net revenues when it is inconsistent with the maintenance of a sound capital base and timely exit from government support;
(2) it restructures remuneration in a manner aligned with sound risk management and long-term growth, including when appropriate establishing limits to the remuneration of senior personnel; and
(3) no variable remuneration is paid to its senior personnel unless this is justified.
Remuneration Principle 8: Profit-based measurement and risk adjustment
(1) A firm must ensure that any measurement of performance used to calculate variable remuneration components or pools of variable remuneration components:
(a) includes adjustments for all types of current and future risks and takes into account the cost and quantity of the capital and the liquidity required; and
(b) takes into account the need for consistency with the timing and likelihood of the firm receiving potential future revenues incorporated into current earnings.
(2) A firm must ensure that the allocation of variable remuneration components within the firm also takes into account all types of current and future risks.
Assessments of financial performance used to calculate variable remuneration components or pools of variable remuneration components must be based principally on profits.
A firm must ensure that its total variable remuneration is generally considerably contracted where subdued or negative financial performance of the firm occurs, taking into account both current remuneration and reductions in payouts of amounts previously earned.
Remuneration Principle 9: Pension policy
A firm must ensure that:
(1) its pension policy is in line with its business strategy, objectives, values and long-term interests;
(2) when an employee leaves the firm before retirement, any discretionary pension benefits are held by the firm for a period of five years in the form of [non-cash] instruments; and
(3) in the case of an employee reaching retirement, discretionary pension benefits are paid to the employee in the form of [non-cash] instruments and subject to a five-year retention period.
Remuneration Principle 10: Personal investment strategies
(1) A firm must ensure that its employees undertake not to use personal hedging strategies or remuneration– or liability-related contracts of insurance to undermine the risk alignment effects embedded in their remuneration arrangements.
(2) A firm must maintain effective arrangements designed to ensure that employees comply with their undertaking.
Remuneration Principle 11: Avoidance of the Remuneration Code
A firm must ensure that variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the Remuneration Code.
Remuneration Principle 12: Remuneration structures – introduction
Remuneration Principle 12(a): Remuneration structures – general requirement
A firm must ensure that the structure of an employee’s remuneration is consistent with and promotes effective risk management.
Remuneration Principle 12(b): Remuneration structures – assessment of performance
A firm must ensure that where remuneration is performance-related:
(1) the total amount of remuneration is based on a combination of the assessment of the performance of:
(a) the individual;
(b) the business unit concerned; and
(c) the overall results of the firm; and
(2) when assessing individual performance, financial as well as nonfinancial criteria are taken into account.
A firm must ensure that the assessment of performance is set in a multi-year framework in order to ensure that the assessment process is based on longer-term performance and that the actual payment of performance-based components of remuneration is spread over a period which takes account of the underlying business cycle of the firm and its business risks.
Remuneration Principle 12(c): Remuneration structures – guaranteed variable remuneration
A firm must not award, pay or provide guaranteed variable remuneration unless it:
(1) is exceptional;
(2) occurs in the context of hiring new Remuneration Code staff; and
(3) is limited to the first year of service.
Remuneration Principle 12(d): Remuneration structures – ratios between fixed and variable components of total remuneration
A firm must set appropriate ratios between the fixed and variable components of total remuneration and ensure that:
(1) fixed and variable components of total remuneration are appropriately balanced; and
(2) the fixed component represents a sufficiently high proportion of the total remuneration to allow the operation of a fully flexible policy on variable remuneration components, including the possibility to pay no variable remuneration component.
Remuneration Principle 12(e): Remuneration structures – payments related to early termination
A firm must ensure that payments related to the early termination of a contract reflect performance achieved over time and are designed in a way that does not reward failure.
Remuneration Principle 12(f): Remuneration structures – retained shares or other instruments
(1) A firm must ensure that a substantial portion, which is at least 50%, of any variable remuneration consists of an appropriate balance of:
(a) shares or equivalent ownership interests, subject to the legal structure of the firm concerned, or share-linked instruments or equivalent non-cash instruments in the case of a non-listed firm; and
(b) where appropriate, capital instruments which are eligible for inclusion at stage B1 of the calculation in the capital resources table, where applicable that adequately reflects the credit quality of the firm as a going concern.
(2) The instruments in (1) must be subject to an appropriate retention policy designed to align incentives with the longer-term interests of the firm.
(3) This rule applies to both the portion of the variable remuneration component deferred and the portion not deferred.
Remuneration Principle 12(g): Remuneration structures – deferral
(1) A firm must not award, pay or provide a variable remuneration component unless a substantial portion of it, which is at least 40%, is deferred over a period which is not less than three to five years.
(2) Remuneration under (1) must vest no faster than on a pro-rata basis.
(3) In the case of a variable remuneration component:
(a) of a particularly high amount, or
(b) payable to a director of a firm that is significant in terms of its size, internal organisation and the nature, scope and complexity of its activities;
at least 60% of the amount must be deferred.
(4) Paragraph (3)(b) does not apply to a non-executive director.
(5) The length of the deferral period must be established in accordance with the business cycle, the nature of the business, its risks and the activities of the employee in question.
(6) £500,000 is a particularly high amount for the purpose of (3)(a).
(7) Paragraph (6) is without prejudice to the possibility of lower sums being considered a particularly high amount.
Remuneration Principle 12(h): Remuneration structures – performance adjustment, etc.
A firm must ensure that any variable remuneration, including a deferred portion, is paid or vests only if it is sustainable according to the financial situation of the firm as a whole, and justified according to the performance of the firm, the business unit and the individual concerned.
OTHER REMUNERATION LAW & PRACTICE DEVELOPMENTS – 2010
A. Changes to Disclosure of Executive Remuneration
CRD3 DISCLOSURE REQUIREMENTS ON REMUNERATION – FSA HANDBOOK AMENDMENTS
On November 2010, the FSA published a consultation paper on remuneration disclosure to implement the CRD3 requirements on firms to disclose information on their remuneration policies and pay-outs on an annual basis. The proposed new regulations will be embodied in new provisions to be included in the FSA’s Prudential Sourcebook for Banks, Building Societies and Investment Firms (BIPRU) and the policy statement is expected to be released imminently. The consultation period ended on 8 December 2010 and in PS10/20 the FSA confirmed that the proposals put forward in the consultation paper would be implemented with very few changes.
Who is Impacted?: All FSA authorised banks, building societies and CRD investment firms (save for those which are exempt, such as credit unions) will be impacted – in essence, the same body of entities as impacted by CRD3 and the Code as noted above. The FSA is however also consulting on extending the disclosure rules to non-EEA firms operating as branches in the UK as that the risks imposed at branch level are in essence no different from those at subsidiary level and could lead to increased market discipline and reduce competitive distortions between UK entities and UK branches of non-EEA firms.
Timing & Implementation: CEBS Guidance advises that disclosures should be published as soon as practicable and that the first reports will be expected in 2011. The FSA acknowledges that for some firms these will be onerous new requirements and so it proposes to set a deadline of 31 December 2011 for firms to make their first disclosure under the provisions.
General Requirement: Firms will be required to publish on an annual basis, either in a standalone report or as part of their annual report, details of their remuneration. The FSA intends to adopt a proportionality principle in applying the CRD3 rules to allow credit institutions to comply with the requirements in a way that is appropriate to their size, internal organization and the nature, the scope and complexity of their activities. This is broadly in line with the Code Proportionality Principle note above. In particular, the FSA is consulting on its proposed approach of diving firms into four tiers (based principally on their regulatory capital and types of ‘permissions’ (i.e. authorised business activities )) each subject to a different level of disclosure. Tier 1 firms will be subject to full disclosure of all items under CRD3 and the FSA only expects about 26 firms to fall into this category. The majority of firms (over 2,000) are expected to fall within Tier 4 and therefore would only be subject to disclosure of basic qualitative and quantitative items of remuneration only.
Specific Content Requirements: Firms are required to disclose information including regular updates on remuneration policy and practices for those categories of staff whose professional activities have a material impact on its risk profile, covering the following:
(i) decision making processes used in determining remuneration policy;
(ii) the link between pay and performance;
(iii) key design features of the remuneration system including the criteria for performance measurement and risk adjustment, deferral policy and vesting criteria
(iv) performance criteria for share based awards and similar;
(v) key parameters and rationale for variable components and non-cash benefits;
(vi) aggregate quantitative information on remuneration broken down by business area and by individual (senior management and staff) identifying the split between the various components (e.g. fixed/ variable; cash/ share-linked; outstanding options vested/ unvested; amounts deferred, paid out and reduced; sign-on and severance payments)
THE EXECUTIVE’S REMUNERATION REPORTS REGULATIONS 2010
In March 2010, HM Treasury published in draft form the Executive’s Remuneration Reports Regulations 2010 (Rem Regs) to explain how the Treasury proposed to use its new powers to implement certain recommendations of Sir David Walker on enhanced disclosure of remuneration for the largest banks and building societies that operate in the UK.
The Rem Regs require publication of an executives remuneration report to include: (i) details of the institutions remuneration policy, covering a summary of the performance conditions and explanation of their choice and how the policy relates to the risks to which the institution is exposed; (ii) information regarding the remuneration committee (or if none, a report from the board of directors) including its decision making process; and (iii) details of executives remuneration. It is in this regard that the controversial draft regulations went further than the Walker recommendations by requiring disclosure of the number of relevant executives whose remuneration in the preceding financial year exceeded £500,000 (NB: the Walker Review recommended a £1million threshold) and in specifying disclosure bands starting from £500,000 and increasing in £500,000 increments up to £5million and thereafter in £1million increments. In the case of listed banking institutions, the board would be required to place the report annually before shareholders for approval by way of ordinary resolution.
The new disclosure regime promulgated under the Rem Regs was due to come into force for annual reports in respect of 2010 issued in early 2011. It is not clear at the present time however as to whether the new coalition government in the UK intends to implement the Rem Regs at all or in the form proposed. However, the government recently announced that the new UK rules on disclosure would be linked to EU wide proposals and it would be premature to introduce a parallel and stricter set of disclosure rules. There has been considerable press commentary recently about what is seen as u-turn and “softened” approach by the coalition in this area. This decision however has drawn sighs of relief from the banking community which has already been hit in many areas with overlapping regulations in the UK and Europe and often more stringent in the case of UK rules.
For developments on enhanced remuneration disclosure requirements in the USA, please refer to our Client Alerts of December 2009 and October 2010 on enhanced disclosure on compensation and other corporate governance matters.
B. Changes to Tax Regimes Impacting Remuneration
BANK PAYROLL TAX
Legislation to levy a new, one-off tax on bank bonuses, bank payroll tax (BPT), was enacted as Schedule 1 to the UK Finance Act 2010 on 8 April 2010. We reported late last year on the controversial tax. BPT was payable UK banks, building societies and other impacted investment firms, by 31 August 2010.
PBT has been applied to the total amount of bonuses (in any form) in excess of £25,000 per employee, other than certain exempt payments, paid to “relevant banking employees”, at any time between the Chancellor’s speech on the 2009 Pre-Budget Report (12.30 pm, 9 December 2009) and the end of 5 April 2010 (BPT period).
At the time of the 2009 Pre-Budget Report, the government was considering whether to extend the BPT period until international regulatory reforms of financial sector remuneration had come into force, but no such extension has been enacted. HM Treasury has instead concentrated its “tax war efforts” on the new bank levy. This tax was announced in June 2010 as a measure to make banks contribute at a level that reflects the risk that bank failure poses to the UK financial system and to the wider economy and is expected to raise about £2.5 billion per year from 2012.
On 9 December 2010, following the original announcement in the June budget, the government has published draft anti-avoidance legislation to block arrangements using employee benefit trusts (EBTs) and other vehicles to benefit employees (or persons linked to them) in a way which avoids or defers income tax or national insurance contributions. The measures are expected to take effect from 6 April 2011 but anti forestalling measures will apply with effect from 9 December 2010.
For details of the equivalent bank bonus tax implemented in the US, see our Client Alert of February 2010
C. Equality & Diversity Initiatives in the Context of Remuneration
HIGH PAY COMMISSION
Other developments during the year included the formation of the High Pay Commission – an independent inquiry into high pay and boardroom pay across the public and private sectors in the UK. The Commission was established by the pressure group Compass (a coalition of campaigners, union leaders and academics). The Commission (which is an independent organization with no political affiliation) will run for one year from November 2010 and will explore the issue of high pay through a public evidence gathering process, secondary research, interviews, case studies and focus groups. It will also seek to explore policies which could mitigate or reduce the current growing rates of high pay.
EQUALITY ACT 2010
The Equality Act 2010 came into force on 1 October 2010 which includes various provisions likely to affect the assessment of employee’s remuneration in the financial services sector including limits on the enforceability of gagging clauses. Details of these and other key provisions were reported in our Client Alert published in October.
GENDER GAP – AUDITS & DISCLOSURE
In a move seen as another u-turn by the coalition government, plans to force companies to publish the pay gap between their male and female employees pursuant to the Equality Act 2010, were abandoned and it plans now instead to work with businesses to introduce a voluntary scheme.
In the meantime, what we may see, is a final report due to be published by the Equality and Human Rights Commission (EHRC) which published its initial report in September 2009 together with a series of recommendations including increased transparency on pay data. A further report of the EHRC on actions that financial services sector employees should be taking is expected in the next few months.
D. Changes in Best Practice – New Industry Guidelines
The Code encourages Code Firms to take heed of general industry guidelines and practice in the areas of remuneration/ corporate governance, which take the form of voting guidelines developed by institutional shareholders with a view to curtailing “inappropriate” board room pay of listed companies. This year, revisions to some of the practice guidelines have emerged.
NATIONAL ASSOCIATION OF PENSION FUNDS (NAPF)
Amendments to the current version of the NAPF Corporate Governance Policy and Voting Guidelines dated February 2009 were published on 19 January 2010 for the 2010 AGM voting season (Revised Guidelines). The Revised Guidelines include a section on remuneration
The Level and Components of Remuneration – the discussion and voting guidelines are largely unchanged. The Revised Guidelines includes a now shorter albeit non-exhaustive list of remuneration practices which would most likely cause concern and may trigger a voting sanction
Procedure: Remuneration Committees & Reports – The scope of responsibility of the Remuneration Committee is largely unchanged from the current version except that revised Guidelines stress that responsibility for decision-making rests with the Remuneration Committee “and/or the board”, rather than any remuneration consultants. One of the significant changes is the requirement for certain key matters seen to fall within the remit of the Remuneration Committee, in the Directors’ Remuneration Report set out in the Annual Report and Accounts. These matters are: (i) key parameters and structure of the Company’s remuneration policy; (ii) how the policy has been applied to the remuneration and incentives of the executive directors and any other senior executives for which the remuneration committee has responsibility; (iii) the cost to the company and the potential end-value for each participant of the Company’s remuneration schemes “with reference to a reasonable range of assumptions regarding personal and corporate performance”; and (iv) discussion regarding the use by the remuneration committee of consultants.
Voting Guidelines – Consistently poor disclosure of the procedures set out in the Revised Guidelines may result in a vote against the committee chairman or against the remuneration report. Companies are encouraged to tailor their long-term incentive schemes to their particular circumstances and to explain those circumstances when seeking approval for a new or amended scheme. Shareholders will seek assurance that these are aligned with their own interests and may vote against schemes where alignment is seen as poor.
On 23 April 2010, the NAPF published a revised version of its Corporate Governance Policy and Voting Guidelines for Investment Companies (IC Guidelines). The IC Guidelines contain few changes from the 2007 version . The key changes are to the NAPF policy on investment companies. In particular, in relation to Remuneration Committees, Remuneration committee the IC Guidelines now state that the NAPF will usually recommend voting against the re-election of non-independent non-executive directors to the remuneration committee, where such appointment would compromise the majority balance of independent non-executive directors on such committee. Previously, the NAPF policy recommended voting against re-election of any non-independent non-executive director. This revision is in fact a move away from the approach taken by the FSA in its proposals for the new Code – where the requirement now is for the Remuneration Committees of Code Firms to be comprised solely of non-executive directors although executive directors may be permitted to attend (but not vote) at meetings of the Remuneration Committee.
INTERNATIONAL CORPORATE GOVERNANCE NETWORK (ICGN)
March 2010, the ICGN published its Non-executive Directors Remuneration Guidelines and Policies (ICGN Guidelines). The guidelines are intended to apply to listed companies globally and supplement the its 2006 Guidelines for Executive Directors.
The ICGN Guidelines recommend, inter alia, the following:
(i) Disclosure – Clear and comprehensive disclosure of the remuneration of non-executive directors. The policy underlying the remuneration should be disclosed together with data including the number of board and committee meetings attended by each non-executive director.
(ii) Interests of NEDs and Stakeholders – The guidelines encourage the alignment of interests between non-executive directors and shareholders (for example, through the use of equity based remuneration).
(iii) Share based remuneration and cash awards – According to ICGN best practice equity based remuneration should vest fully on the grant date (subject to applicable holding periods). Cash remuneration should only be paid in relation to the annual retainer or fee.
The guidelines disapprove of non-executive directors receiving severance payments, service contracts, pension payments, employee benefits and any form of performance related pay. The guidelines also include recommendations on attendance policies, share ownership guidelines, and disgorgement.
 See Annex 1 for a list of the key 12 Remuneration Principles as finally set out in CP10/20. This list does not include the Guidance and Evidential Provisions supporting the Remuneration Principles nor does it include the detailed rules on the effect of breaches of the principles.
 Credit institutions as defined under Article 4(1)(a) Directive 2006/48/EC (http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_177/l_17720060630en00010200.pdf ) and investment firms as defined under Article 3(1)(b) Directive 2006/49/EC (http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_177/l_17720060630en02010255.pdf)
 (A) Heads of significant business lines (e.g. Fixed income/ Foreign exchange /Commodities/ Securitisation/ Sales areas/ Investment banking (including M&A advisory)/ Commercial banking/ Equities/ Structured finance/ Lending quality/ Trading areas/ Research) including regional heads, and any individuals or groups within their control who have a material impact on the firm’s risk profile. AND (B) Heads of support and control functions (e.g. Credit, market, or operational risk Legal /Treasury controls /Investment research/ Human resources (HR) / Compliance/ Internal audit/ Information technology ) and other individuals within their control who have a material impact on the firm’s risk profile
 For details of the four tiers, refer to paragraph 3.23 of PS10/20. In summary, tiers one and two cover large banks and building societies (eg exceeding £1bn in capital resources) and broker dealers that engage in significant proprietary trading or investment banking activities; tier three consists primarily of small banks and building societies and firms that may occasionally take over-night short terms risks with their balance sheet and tier four will contain firms that generate income from agency business without putting their balance sheets at risk.
 Staff whose variable remuneration is greater than 33% of their total remuneration and whose total remuneration exceeds £500,000. In addition, the Code provides for adjustment of application of the provisions in the case of persons who have been Code Staff for only part of the year (at least 3 months but less than 12 months)
 This covers remuneration awarded on or after 1/1/11; remuneration due on the basis of contracts entered into prior to 1/1/11 but paid on or after 1/1/11 and that yet to be paid out but relating to services provided in 2010
 See our article (http://www.gibsondunn.com/publications/pages/EUAIFMDirective-Update.aspx) for a summary of the scope of the AIFM and its key provisions
 Carried interest is defined in the AIFM as “a share in the profits of the AIF accrued to the AIFM as compensation for the management of the AIF and excluding any share in the profits of the AI accrued to the AIFM as a return on any investment by the AIFM into the AIF”
The Walker Review 2009:
See also our Client Alert: (http://www.gibsondunn.com/Publications/Pages/UKWalkerReview.aspx)
 See http://www.icgn.org/best-practice/documents/-/page/885/ for an introduction to the ICGN Guidelines. Full copies can be obtained from directly from the ICGN ([email protected])
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you work, or any of the following lawyers in the firm’s London office:
Selina S. Sagayam (+44 20 7071 4263, [email protected])
Nicholas Aleksander (+44 20 7071 4232, [email protected])
James A. Cox (+44 20 7071 4250, [email protected])
Daniel E. Pollard (+44 20 7071 4257, [email protected])
Eleanor Shanks (+44 20 7071 4279, [email protected])
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