ISS Issues Guidance Regarding the Impact of COVID-19 Pandemic

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On April 8, 2020, ISS released Impacts of the COVID-19 Pandemic, which offers guidance on how this crisis may impact and interact with ISS’ existing policies. ISS intends that this guidance be read in conjunction with ISS’ market and region-specific ISS Benchmark and Specialty Voting Guidelines and related FAQs.

Overall, the guidance offered falls into four categories:

  • Annual General Meeting Issues
  • Poison Pills, Shareholder Rights and Boards/Directors
  • Compensation Issues, and
  • Capital Structure and Payouts

Annual General Meetings Issues
The guidance addresses meeting postponements and virtual-only meetings.

Poison Pills, Shareholder Rights and Boards/Directors
The guidance addresses the use of poison pills and other defensive measures (ISS indicates that a stock price drop brought on by the COVID-19 pandemic generally would be sufficient justification to adopt a pill of less than one year in duration.

As for director attendance, ISS indicates that in countries where telephonic/electronic attendance is not counted, companies should provide adequate disclosure indicating if directors attended telephonically/electronically .

Compensation Issues
With respect to changing metrics or shifting goals or targets, noting that many companies may not be obligated to provide disclosure of such events until the 2021 proxy is filed, ISS encouraged boards to provide contemporaneous disclosure to shareholders of their rationales for making such changes. With respect to long-term compensation plans, ISS noted that its general policies generally are not supportive of changes to midstream or in-flight awards since they cover multi-year periods. ISS also indicated that if companies make structural changes to their long-term plans to take account of the new economic environment, it will assess such changes under its existing policies.

ISS also reminds companies of its policies with respect to option repricing, which it found still to be appropriate during the circumstances of the COVID-19 pandemic. Basically, ISS is looking for any option exchange to comply with the following four requirements:

  1. The design is shareholder value neutral, i.e., a value-for-value exchange
  2. Surrendered options are not added back to the share pool
  3. Replacement awards do not immediately vest
  4. Executive officers and directors are excluded.

Capital Structure and Payouts
ISS states that where its market-specific policies look for dividend payout ratios to be within a certain range, it will support Board discretion this year that seek to set payout ratios that may fall below historic levels or customary market practice. In considering such proposal, ISS will look at whether a company discloses plans to use any preserved cash from dividend reductions to support and protect its business and workforce.

With respect to share repurchases, ISS simply states that, in effect, it will review what companies do with respect to any share repurchase authority when the 20201 annual meetings come up in deciding whether directors managed risks in a responsible fashion with respect to such authority.

ISS generally evaluates capital raising proposals on a case-by-case basis.

ISS Releases 2019 Policy Survey

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On July 22, 2019, ISS released its 2019 Benchmark Policy Survey. The survey can be accessed at:

https://www.surveymonkey.com/r/2019-ISS-Policy-Survey

The board of director and compensation-related questions include:

  • Board gender diversity, including what might constitute a mitigating factor
  • Director overboarding
  • Combined CEO/Chair role in the U.S.
  • Display of prior GAAP metrics used prior to the proposed use of EVA in ISS’ Financial Performance secondary screen as part of its quantitative pay-for-performance analysis for Say-on-Pay vote recommendations

ISS will use the responses to this policy survey in formulating its 2020 policy updates.

More on ISS’ Excessive Non-Employee Director Pay Policy

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ISS announced that it would not apply its excessive non-employee director (NED) pay policy until meetings on and after February 1, 2020. But in the U.S. Compensation Policies Frequently Asked Questions, Updated December 14, 2018, ISS indicated that adverse vote recommendations could be issued under this policy for meetings occurring on or after February 1, 2020 where ISS has identified excessive NED pay without compelling rationale in both 2019 and 2020.

This means that companies that might have excessive NED pay and wanted to addresses it so it would not be an issue in 2020, will need to address NED pay now. That’s because most companies are setting their director compensation for 2019, that will be disclosed in their 2020 proxy statements.

Therefore, if a company will have an issue under ISS’ NED pay policy in 2020, it will be extremely difficult to avoid that result. So, the way ISS is implementing this policy creates a real possibility that companies will be trapped into being amongst the top 3% NED pay in both their 2019 and 2020 proxy statements and have no real opportunity to address NED pay levels (since 2019 pay being set shortly) before ISS applies the policy in 2020.

Companies should therefore carefully review ISS’s new FAQ on NED pay and determine whether their director pay for any director would place him/her at the 90th percentile or higher for companies in their 2-digit GICS code in their index (S&P 500; combined S&P 400 and S&P 600; remainder of the Russell 3000 index; and, the Russell 3000-Extended). If so, then they should consider adding an explanation in their proxy explaining why their pay is higher for those directors and also consider better laying out the process used to set director pay, especially timing, so that shareholders and ISS can more easily see that the Company had very little opportunity to address NED pay levels for the 2020 proxy.