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Congress Got 'Say-on-Pay" Right


Citigroup is now "on the radar screen for a shareholder derivative action by disgruntled shareholders," according to Poerio, who added that "the Citi vote was a surprise," since the company went from 93% shareholder approval of its 2010 executive pay package to only 45% approval last week for the 2011 pay package.

The eight shareholder lawsuits following "no" votes on say-on-pay during 2011 "pretty well had no traction," according to Poerio, who said that "only one has moved beyond a motion to dismiss," but it would seem that executives of large companies really can't afford these court battles. After all, disgruntled shareholders could vote with their feet, hurting the share prices supporting the generous stock options awarded to the executives.

After Encore Bancshares (EBTX) of Houston agreed on March 6 to be acquired by the privately held Cadence Bancorp for roughly $250 million in cash, Encore on March 12 disclosed $6.4 million in "outstanding equity awards" to executives and board members, "that vest in connection with the merger."

If the merger deal is approved, four executives named in Encore's will each receive "a lump sum payment equal to two times the sum of (a) the executive officer's annual base salary plus (b) two times the average of all bonus, profits sharing and other incentive payments made by Encore or the employing entity to the executive officer over the prior two years." Including benefits, Encore said on April 12 that the golden parachutes for these executives would total $6.6 million.

If Encore's shareholders fail to approve the merger with Cadence, Encore faces a $9.9 million breakup fee.

After filing its special meeting proxy statement on April 12, a group of investors sued Encore's board of directors and Cadence Bancorp, demanding "compensatory and/or rescissory damages," saying the merger deal "protects and advances the interests of Encore's directors at the expense of Encore and Encore's public shareholders," and that the conflict of interest among Encore's directors because of the equity awards and executive parachutes "caused these directors to be unable to fairly and thoroughly evaluate the Sale Agreement to ensure that a sale at this time is in the best interests of Encore and its shareholders"

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