Ceo Employment Contract Granting Stock

Document Sample
Ceo Employment Contract Granting Stock Powered By Docstoc
					Comparing CEO Employment Contract Provisions: Differences between
                          Australia and the U.S.




                               Jennifer Hill
               Sydney Law School and Vanderbilt Law School


                              Ronald Masulis
       Vanderbilt Law School and Owen Graduate School of Management


                             Randall Thomas
       Vanderbilt Law School and Owen Graduate School of Management




 Please Do Not Cite or Quote Without Authors’ Express Permission



                          Draft of April 5, 2010
                                             Abstract




This study compares CEO employment contracts across two very different common law
countries, the US and Australia after creating pairs of Us and Australian firms that are matched
on a number of dimensions including firms size and industry. We find that Australian CEOs
have substantially greater base salaries than their US counterparts, while US CEOs have greater
restricted stock and stock options than their Australian counterparts. More striking is the fact
that US CEO contract tend to last longer than Australian contracts, while Australian long term
incentives tend to be concentrated in stock and stock options with significant performance
hurdles requirements.




                                                 1
       Introduction


       Executive compensation has been front page news throughout the world in the wake of the
financial crisis. The soaring rhetoric about excessive pay to ungrateful bank employees, coupled
with personal attacks on CEOs and other executives, have revealed a strong public anger toward
the highly paid employees of public companies. Frequently missing from the discussion are
basic facts surrounding the terms and conditions of the managers’ relationships with their firms,
especially their companies’ ex ante contractual obligations to these executives. While several
recent studies in the U.S. have begun to fill in some of the details surrounding the American
contracts, or the lack thereof, 1 none have fully captured the U.S. experience, especially from a
legal perspective, or even touched on Australian CEOs’ contractual employment relationships.
       In this paper, we are the first to compile, compare and statistically analyze CEO employment
contracts for both U.S. and Australian CEOs.                     We find that there are many statistically
significant differences between the provisions of these agreements, some of which reflect
underlying differences in the legal and regulatory environment, while others are not so easily
explained. For instance, many more American CEOs have change-in-control provisions in their
employment agreements than Australian CEOs, but this difference may well stem from more
stringent stock exchange listing requirements at the Australian Stock Exchange. Vast differences
in the use of arbitration provisions though cannot be explained by legal rules, but may instead
reflect cultural differences in that arbitration has historically been employed in Australian as a
dispute resolution device in labor union relations with their employers.
       We begin with a brief overview of the differences in the underlying legal and regulatory
regimes of the two countries. We then provide a literature review of existing empirical studies in
the U.S. of various contracts between the American CEO and his/her firm. In Section III, we lay
out our empirical analysis, beginning with a detailed description of our data and finishing with
our multivariate regression analysis.                    We conclude with some brief remarks about the
implications of our findings.


       I.        Differences in the Regulation of Executive Pay in the United States and Australia

1
     See section II for a review of the recent literature.


                                                             2
[In the next revisions to this section, we need to add discussion of differences in firm size and
overall market size; differences in stock ownership patterns, both institutional and control
shareholders; discussion of the internationalization of the different labor markets; comparisons of
the overall levels of pay and the differences in the rates of growth of those levels with more
detail about the composition of pay on an aggregate basis]


     The U.S. and Australia have followed different paths in the regulation of executive pay.
Beginning with the U.S., the general regulatory response prior to the global financial crisis to
allegations of abusive practices related to executive compensation was to focus on broad
corporate governance issues. Rules and regulations related to board structure 2 and auditor
independence, 3 for example, assumed center stage for the purposes of reform initiatives. 4
     This minimalist approach continued post-Enron, in the United States, as only two provisions
of the Sarbanes-Oxley Act of 2002 (“the Sarbanes-Oxley Act”) 5 dealt directly with pay-related
issues. The first was § 304 of the Sarbanes-Oxley Act. This was a statutory claw back
provision, permitting recovery of bonuses, incentive-based or equity-based compensation
received by the CEO or chief financial officer (“CFO”), if the corporation is required to restate
earnings due to material non-compliance with financial reporting requirements as a result of
misconduct. 6 In spite of the plethora of financial restatements in US corporations since the

2
    See Sonnenfeld, What Makes Great Boards Great, HARV. BUS. REV., Sept. 2002, at 106. For example, the United
States’ 2002 reforms require listed company boards to have a majority of independent directors and to have
compensation, nominating and audit committees composed entirely of independent directors. See Sarbanes-Oxley
Act, Pub. L. No. 107-204, § 301, 116 Stat. 745, 775-77 (2002); NYSE, Inc., Listed Company Manual §§ 303A.01,
04-06 (2003).
3
  See generally Coffee, Jr., Understanding Enron: “It’s About the Gatekeepers, Stupid”, 57 BUS. LAW. 1403 (2002);
Coffee, Jr., Gatekeeper Failure and Reform: The Challenge of Fashioning Relevant Reforms, 84 B.U. L. REV. 301,
321 (2004); Gordon, What Enron Means for the Management and Control of the Modern Business Corporation:
Some Initial Reflections, 69 U. CHI. L. REV. 1233, 1237-1240 (2002); Fogarty & Lansley, Sleepers Awake! Future
Directions for Auditing in Australia, 25 U.N.S.W. L.J. 408, 421 (2002).
4
 A significant proportion of the Sarbanes-Oxley Act 2002 was, for example, devoted to issues involving auditor
qualifications, independence and oversight. See Sarbanes-Oxley Act, Pub. L. No. 107-204, §§ 101-301, 116 Stat.
745, 750-77 (2002).
5
    Sarbanes-Oxley Act, id.
6
  Simmons, Taking the Blue Pill: the Imponderable Impact of Executive Compensation Reform, 62 SMU L. REV.
299, 347-349 (2009).


                                                       3
introduction of § 304, 7 successful actions under the provision have been rare indeed. 8 Secondly,
§ 402 of the Sarbanes-Oxley Act prohibited the granting of personal loans to directors or
executive officers. It appears that this was previously a widespread practice, which figured
prominently in the Enron and WorldCom scandals. 9
     The most recent U.S. proposals concerning executive remuneration have been more
invasive. Originally focused on a narrow, specialized group of U.S. namely those receiving
government bail-out funding, 10 many reform proposals have subsequently become more general
in scope.     Between October 2008 and February 2009, the U.S. Treasury Department and
Congress introduced an array of legislation and guidelines aimed at controlling executive pay at
institutions receiving federal financial assistance under government bail-out programs, including
rules created under the Emergency Economic Stabilization Act of 2008 (“EESA”). 11 Treasury
released new guidelines (“Treasury guidelines”) under the EESA, restricting executive pay at
companies receiving future federal financial assistance. 12               The guidelines created a two-tier


7
 See Schwartz, The Claw back Provision of Sarbanes-Oxley: An Underutilized Incentive to Keep the Corporate
House Clean, 64 BUS. LAW. 1, 2, 13-15 (2008).
8
  Id, noting that six years after the introduction of the Sarbanes-Oxley Act, the SEC had successfully obtained claw
backs only twice. A range of factors that he have compromised the effectiveness of § 304. For example, private
claw back actions have been proscribed. See Gordon, ‘Say on Pay’: Cautionary Notes  on the U.K. Experience and
the Case for Shareholder Opt-In, 46 HARV. J. ON LEGIS. 323, 334, n 39 (2009). Also, it is unclear whether the
requisite “misconduct” under § 304 must be directly attributable to the officer against whom reimbursement is
sought. See Hill, New Trends in the Regulation of Executive Remuneration, in DIRECTORS IN TROUBLED TIMES 100,
101 (Austin & Bilski, eds., 2009).
9
  Roberta Romano, The Sarbanes-Oxley Act and the Making of Quack Corporate Governance, 114 YALE L.J. 1521,
1538 (2005).
10
  See generally Core and Guay, Is There a Case for Regulating Executive Pay in the Financial Services Industry?,
13ff, Working Paper, Jan. 25, 2010 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544104).
11
  The Emergency Economic Stabilization Act of 2008 (EESA), which was signed into law on 3 October 2008 and
authorized Treasury to access up to US$700 billion to protect and restore confidence in US financial markets. See
Davis Polk & Wardell, “Executive Compensation Rules under the Emergency Economic Stabilization Act of 2008”,
23 October 2008 (available at http://www.dpw.com/1485409/10.23.08.epg.tarp.memo.pdf). The first program under
the EESA, the Capital Purchase Program, introduced new rules on executive compensation for participating
institutions. For a summary of EESA rules on executive remuneration applying to various categories of EESA
participants, see id, 15-18. The initial participants in the Capital Purchase Program were nine of the largest US
banks, which received US$125 billion under the program. Id, 2.
12
  See US Department of the Treasury, Press Release, Treasury Announces New Restrictions On Executive
Compensation, 4 February 2009 (available at http://www.treasury.gov/press/releases/tg15.htm); Davis Polk &

                                                         4
assistance regime, distinguishing between institutions receiving funds under “generally
available” capital programs, and those requiring “exceptional assistance”. Thus, for example,
firms receiving exceptional assistance became subject a range of new restrictions concerning
executive compensation, including an executive pay cap; 13 a non-binding “say on pay”
shareholder vote requirement; expanded claw back and golden parachute restrictions; required
certification that the compensation does not encourage excessive risk-taking; and disclosure of
policies on luxury expenditures. 14            The American Recovery and Reinvestment Act of 2009
(ARRA), or “stimulus bill”, included additional Congress-demanded limitations on executive
compensation for institutions participating in the Troubled Asset Relief Program (TARP), 15
including a limitation on bonus payments. 16 Treasury issued an interim final TARP rule in June
2009. 17




Wardell, “New Executive Compensation Restrictions under the Emergency Economic Stabilization Act of 2008”, 6
February 2009 (available at http://www.dpw.com/1485409/clientmemos/2009/02.05.09.ec.pdf).
13
   Stricter constraints apply in this regard for firms receiving “exceptional assistance” than for institutions receiving
funds under “generally available capital programs. For example, although both categories of funding assistance
attract a senior executive pay cap of $500,000 on total annual compensation (excluding restricted stock), this cap
could in certain circumstances be waived by shareholders of institutions receiving financial assistance under
generally available capital access programs. Davis, Polk and Wardell, id, 3. For criticism of this waiver power, see
Bebchuk, “Pay Caps Debate: They Don’t Go Far Enough…”, Wall Street Journal, 6 February 2009, A11.
14
 See generally Farrell, “US Bank Chiefs Face $500,000 Limit”, Financial Times, 5 February 2009, 05; Davis Polk
& Wardell, ibid.
15
   See generally Bachelder, Executive Compensation under TARP, THE HARVARD LAW SCHOOL FORUM ON
CORPORATE         GOVERNANCE        AND     FINANCIAL     REGULATION,      April     28,    2009    (available
at    http://blogs.law.harvard.edu/corpgov/2009/04/28/executive-compensation-under-tarp/#more-966);  Morphy,
ECONOMIC ‘STIMULUS’ LEGISLATION TO IMPOSE NEW EXECUTIVE COMPENSATION RESTRICTIONS, THE HARVARD
LAW SCHOOL FORUM ON CORPORATE GOVERNANCE AND FINANCIAL REGULATION, Feb. 16 , 2009 (available
at    http://blogs.law.harvard.edu/corpgov/2009/02/16/economic-%e2%80%9cstimulus%e2%80%9d-legislation-to-
impose-new-executive-compensation-restrictions/#more-870).
16
  Bonus payments were limited to one third the value of total annual compensation the under American Recovery
and Reinvestment Act of 2009.
17
  See US Department of Treasury, Interim Final Rule on TARP Standards for Compensation and Corporate
Governance (available at http://www.treas.gov/press/releases/reports/ec%20ifr%20fr%20web%206.9.09tg164.pdf).
See generally Core and Guay, Is There a Case for Regulating Executive Pay in the Financial Services Industry?, 13-
14, Working Paper, Jan. 25, 2010 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544104).


                                                           5
       Executive remuneration received more attention under Australia’s post-Enron reforms. 18
However, the Australian reforms followed a different regulatory pathway to the United States, in
that they enhanced shareholder power.               The reforms introduced section 250R(2) of the
Corporations Act 2001 (“Corporations Act”), 19 which was based upon an analogous UK
provision introduced in 2002, 20 and requires shareholders of an Australian listed company to
pass a non-binding advisory vote at its annual general meeting, indicating whether they adopt the
directors' remuneration report. 21 The explicit goals of §250R (2) were to provide shareholders
with greater voice concerning remuneration issues, 22 and to encourage more consultation and
information flow concerning compensation policies between directors and shareholders. 23
Another significant factor relates to the Australian Securities Exchange (ASX) Listing Rules
(LR). ASX LR 10.14, for example, requires shareholder consent for the issue of securities to
directors under an employee incentive scheme. 24 A number of protest votes were recorded at




18
  Australia’s post-Enron legislative reforms were located in the Corporate Law Economic Reform Program (Audit
Reform and Corporate Disclosure) Act, 2004 (Austl.).
19
  Corporations Act, 2001, c. 2G, § 250R(2) (Austl.). See also Corporations Act, 2001, c. 2G, §§ 249L(2), 300A
(Austl.).
20
   The provision requiring shareholder approval of the directors' remuneration report is now found in § 439 of the
U.K. Companies Act 2006. See Companies Act, 2006, c.46, § 439 (U.K.). The required content of the remuneration
report is detailed in Schedule 8 of the Large and Medium-sized Companies and Groups (Accounts and Reports)
Regulations. See Director's Remuneration Report Regulations, 2002, S.I. 2002/1986 (U.K.). The Australian section
is broader in scope than the analogous U.K. provision. Under the Australian regulatory regime, the nonbinding
shareholder vote encompasses remuneration of each director and certain senior executives; however, the U.K.
provision only applies to directors' remuneration. Corporations Act, 2001, c. 2G, §§ 250R(2), 300A(1)(c)(i)-(iii)
(Austl.). See also BUS. COUNCIL OF AUSTL., SUBMISSION TO THE PARLIAMENTARY JOINT COMMITTEE ON
CORPORATIONS AND FINANCIAL SERVICES ON THE CORPORATE LAW ECONOMIC REFORM PROGRAM (AUDIT &
CORPORATE DISCLOSURE) BILL 14, comparing the Australian and U.K. regimes.
21
  See generally Chapple & Christensen, The Non-Binding Vote on Executive Pay: A Review of the CLERP 9
Reform, 18 AUSTL. J. CORP. L. 263 (2005).
22
  Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill, 2003, Austl. H.R. Bill,
Explanatory Memorandum paras. 5.434-5.435 (2003),
23
     Id. at paras [4.353], [5.413].
24
  Australian Securities Exchange, ASX Listing Rule 10.14 (2003), available at
http://www.asx.com.au/ListingRules/chapters/Chapter10.pdf.


                                                        6
companies using exemptions or ASX waivers to avoid the need for shareholder consent under
ASX LR 10.14 in relation to executive pay. 25
       Several other executive pay regulations were introduced in Australia after the Enron
scandal. 26 These included heightened remuneration disclosure, 27 modification of provisions
relating to termination pay, 28 and the introduction by the Australian Securities Exchange
(“ASX”) of principles-based regulation 29 in a range of corporate governance areas, including
executive remuneration. 30
       The APRA guidelines introduce industry specific regulation of executive pay. In a related
initiative in 2009, the Australian Productivity Commission undertook a more general review of
the remuneration framework for directors and executives 31 under the Corporations Act 2001
                                       32
(Austl.) (Corporations Act).                  The Productivity Commission’s final report, Executive

25
  Washington, Executive Rewards Wake a Sleeping Giant, SYD. MORNING HERALD, Nov. 12, 2007, 19.
26
  See Sheehan, The Regulatory Framework for Executive Remuneration in Australia, 31 SYD. L. REV. 273, 275-76
(2009).
27
     See Corporations Act, 2001, § 300A (Austl.).
28
  See generally Stapledon, Termination Benefits for Executives of Australian Companies, 27 SYD. L. REV. 683
(2005). See also Sheehan and Fenwick, Seven: The Corporations Act 2001 (Cth), Corporate Governance and
Termination Payments to Senior Employees, 32 MELB. U. L. REV. 199 (2008).
29
  At the time of the introduction of its principles of good corporate governance, the Managing Director and CEO of
the ASX stated that “[t]hrough a disclosure based approach, the ASX is keen to avoid a U.S. style Sarbanes-Oxley
legislative solution”. See Humphry 2003, ‘If Not, Why Not?’, Address to the Australian Institute of Company
Directors Forum, Sydney (2003).
30
   ASX Corporate Governance Council, Principles of Good Corporate Governance and Best Practice
Recommendations (2003), Principle 9 – “Remunerate Fairly and Responsibly” (Austl.). See also ASX Corporate
Governance Council, Revised Corporate Governance Principles and Recommendations (2nd ed, 2007), Principle 8
(Austl.). See generally Ablen, “Remunerating ‘Fairly and Responsibly’: The Principles of Good Corporate
Governance and Best Practice Recommendations’ of the ASX Corporate Governance Council, 25 SYD. L. REV. 555
(2003).
31
  The review related to remuneration of directors and executives of “disclosing entities”. Under s 111AC of the
Australian Corporations Act, disclosing entities are listed companies and managed investment schemes, with at least
100 investors. The review considered a range of regulatory mechanisms such as shareholder voting, disclosure and
reporting practices. See Treasurer, Joint Media Release with Assistant Treasurer and Minister for Competition
Policy and Consumer Affairs and Minister for Superannuation and Corporate Law, Productivity Commission and
Allan Fels to Examine Executive Remuneration, 18 March 2009, “Terms of Reference: Review into the Regulation
of Director and Executive Remuneration in Australia”.
32
  See Treasurer, Joint Media Release with Assistant Treasurer and Minister for Competition Policy and Consumer
Affairs and Minister for Superannuation and Corporate Law, Productivity Commission and Allan Fels to Examine

                                                        7
Remuneration in Australia, was released in December 2009. 33 The Productivity Commission
made 17 recommendations in total, the majority of which related to ensuring procedural integrity
in relation to the pay-setting process and shareholder approval of the remuneration report under
§250R(2) of the Corporations Act, 34 in addition to increased disclosure and reporting
requirements.
     Finally, Australia has introduced specific legislative reforms, Corporations Amendment
(Improving Accountability on Termination Payments) Act 2009, 35 to deal with “golden
handshakes.” 36 There had been strong criticism of the previous law concerning termination
pay, 37 on the basis that it was overly generous to executive officers 38 and potentially delivered
“rewards for failure.” 39 A key aspect of the 2009 Act is that it caps a director’s termination pay

Executive Remuneration, 18 March 2009, “Terms of Reference: Review into the Regulation of Director and
Executive Remuneration in Australia”.
33
  Australian Government Productivity Commission, Productivity Commission Inquiry Report No. 49, Executive
Remuneration in Australia, 19 December 2009. The Productivity Commission published several interim papers
prior to release of its final report. See Australian Government Productivity Commission, Regulation of Director
and Executive Remuneration in Australia, Issues Paper (April 2009) and Australian Government Productivity
Commission, Discussion Draft, Review into the Regulation of Director and Executive Remuneration in Australia, 30
September 2009.
34
  See e.g., Banks (Chairman, Productivity Commission), Executive Pay: Economic Issues from the Commission’s
Report, speech to the Economics Society of Australia, 14 October 2009, 13, stating that the Commission had
“focused more on the integrity of the sausage-making than the sausage” in its inquiry into executive remuneration in
Australia.
35
 The Corporations Amendment (Improving Accountability on Termination Payments) Act 2009 received Royal
Assent on November 23, 2009.
36
  See Bills Digest No 6 2009-10, Corporations Amendment (Improving Accountability on Termination Payments)
Bill 2009 (available at http://www.aph.gov.au/library/pubs/BD/2009-10/10bd006.htm), “Purpose”. For an overview
of key policy issues relating to termination pay, see Stapledon, Termination Benefits for Executives of Australian
Companies, 27 SYD. L. REV. 683 (2005).
37
  See, for example, Sheehan and Fenwick, “Seven: The Corporations Act 2001 (CTH), Corporate Governance and
Termination Payments to Senior Employees”, 32 MELB. U. L. REV. 199 (2008); RiskMetrics Group, Press Release,
Shareholders Pay the High Cost of Failure: Average CEO Gets $3.4 Million to Walk, Nov. 26, 2008.
38
   Under Part 2D.2 of the Corporations Act (former § 200F), shareholder consent was only required if termination
benefits exceeding seven times a director’s annual remuneration package. See, for example, Paatsch and Lawrence,
Money for Nothing, BUS. SPECTATOR, Jul. 17, 2008, describing Part 2D.2 of the Corporations Act “in reality a dead
letter”.
39
  Rewards for failure” became topical following the U.K. government’s release in 2003 of two reports on this issue
in 2003 – (i) Department of Trade and Industry (DTI), “Rewards for Failure”: Directors’ Remuneration –

                                                         8
at one year’s average base salary – a significant reduction from the previous seven year threshold
- unless shareholder approval is obtained. 40
       For our project, it is important to be conscious of the underlying differences in these two
national legal systems. Executive employment contracts, or service agreements as they are
called in Australia, are written against the backdrop of these specific rules and regulations, but
also with the underlying regulatory culture in mind. As we will see in the subsequent sections,
many of the differences in the contracts we examine may well be directly related to differences
in the background legal rules. At the same time, there are many similarities between the
contracts from the two countries even though the two legal systems are different. We turn next to
a brief overview of the prior literature.


       II.       Literature Review

             Theorists have discussed contracting between firms and their executives extensively over
the years, 41 but only recently, and largely in the U.S., have the actual agreements been examined
by empiricists. Researchers have found a complex set of contracts that govern the relationships
between American CEOs and their publicly held firms, most of which are publicly disclosed in
various degrees of detail because of Securities and Exchange Commission (SEC) requirements.
Outside the U.S., however, it is rare to see disclosure of any information concerning these
contracts, although recently in Australia, there has been mandatory disclosure of summaries of
certain key agreements, such as the CEO’s employment contract. Given the lack of data, we

Contracts, Performance & Severance (June 2003); (ii) UK Parliament, House of Commons, Trade and Industry
Committee, Rewards for Failure (September 2003). See generally Stapledon, Termination Benefits for Executives
of Australian Companies 27 SYD. L. REV. 683, 691-693 (2005). The UK government subsequently announced that
it did not intend to legislate to control termination payments. Cf Harrison, Dismay as DTI Baulks at Limits on Fat
Cat Pay, THE INDEPENDENT, February 26, 2004, 42; Tucker and Wright, Excessive Pay-offs Decision Welcomed –
Executive Rewards, FIN. TIMES, Feb. 23, 2004, 2.
40
   A number of changes were made during the passage of the Corporations Amendment (Improving Accountability
on Termination Payments Bill 2009. For a summary of differences between a May 2009 Exposure Draft of the Bill
and the actual Bill, which was introduced into the House of Representatives on 24 June 2009, see Freehills, Limits
on     Termination     Payments:     Bill   Introduced   into    Parliament,    JUN.    26,    2009    (available
at http://www.freehills.com/5121.aspx); Mallesons Stephen Jacques, Government Introduces Executive Termination
Payment         Laws        into       Parliament,             JUN.        24,              2009       (available
at http://www.mallesons.com/publications/2009/Jun/9966946W.htm).
41
     Cites to literature


                                                        9
believe that we are the first paper that compares U.S. and Australian CEO employment contracts.
There are, however, a number of earlier empirical studies of U.S. CEO employment contracts
and other contractual agreements with their firms. We summarize the most relevant ones of
these below.


     A. Employment Contracts

        Schwab and Thomas conduct a legal and empirical analysis of American CEOs’
employment contract terms. 42 After providing an overview of the process by which these
agreements are negotiated, they examine the key legal characteristics of 375 employment
contracts. In addition to reporting descriptive statistics on these legal features, they also compare
the employment contract provisions with those found in a sample of 121 change-in-control
agreements. They find several significant differences between these two types of contracts.
        A second paper examining CEO employment contracts is Gillan, Hartzell and Parrino. 43
They ask why firms enter into explicit as opposed to implicit employment contracts with their
CEOs. They examine all of the firms in the S&P 500 as of January 1, 2000. They find that of
these firms, 184 have explicit CEO employment contracts, 41 firms disclose the existence of
such an agreement but the researchers cannot find it, and 269 firms have no written agreement
with their CEO. They find that explicit employment agreements are more common for firms:
operating in risky business environments; with “outside” CEOs that come in to the job from
another firm; and with CEOs that have more to lose if the firm breaches because they have
higher abnormal compensation levels or larger fractions of their pay in the form of incentive-
based pay. Moreover, they show that the length of a CEO contract depends on the same set of
factors as the decision to award an explicit contract, so that longer contracts are awarded to
outside CEOs and those CEOs more at risk of having their firm renegotiate their contract.


42
  Stewart J. Schwab and Randall S. Thomas, An Empirical Analysis of CEO Employment Contracts: What do Top
Executives Bargain For?, 63 Washington and Lee Law Review 231 (2006). For a model form executive
employment contract, see Joan MacLeod Heminway and Trace Blankenship, Executive Employment Agreements in
Tennessee: An Annotated Model Tennessee Executive Employment Agreement, 10 Tennessee Journal of Business
Law141 (2009).
43
 Stuart L. Gillan, Jay C. Hartzell, and Robert Parrino, Explicit versus Implicit Contracts: Evidence from CEO
Employment Contracts, 64 Journal of Finance 1629 (2009).


                                                     10
     B. Severance Agreements

        A second set of studies examine severance pay and agreements for American CEOs.
Yermack’s article on severance pay for dismissed or retired executives asks whether there is any
correlation between the existence of formal severance contracts and the award of severance
pay. 44 He finds that more than half of a sample of 179 CEOs of Fortune 500 companies who left
firms between 1996 and 2002 receive severance pay with a mean value of $5.4 million, although
this is less than one year’s average CEO compensation. However, the large majority of these
payments (83%) are paid at the discretion of the board and not pursuant to a previous
employment agreement. CEOs that are dismissed are much more likely to be paid separation
payments than those that retire voluntarily and they receive much larger amounts of pay.
        Rusticus studies severance agreement’s relationship with CEO turnover. Using a sample
of 305 newly hired CEOs at S&P 1500 firms between 1994 and 1999, he finds that about half of
them have severance agreements and the median amount paid is two years cash compensation.
He finds that their presence is positively correlated with uncertainty about the CEO’s abilities as
measured by their number of years with the firm before becoming a CEO, the degree of
uncertainty about the firm’s operating environment, and higher amounts of compensation
awarded to the executive. The dollar amount of the payments is correlated with the size of their
annual cash compensation, firm size and whether the CEO is an outsider.
        A contemporaneous paper by Sletten and Lys uses a sample of 150 CEOs that started at
their position between 1992 and 2003. 45 They find that 50% of these executives have formal ex
ante severance agreements, while 65% of all these CEOs receive separation payments at their
departure. The mean payments are $5.37 million in 2003 dollars. They argue that ex ante
severance agreements offer payments as a form of insurance as executives joining riskier firms,
outside CEOs, and CEOs whose predecessors were forced to leave the firm, all contract for
higher severance payments. They also find support for the claim that CEOs with confidentiality
agreements are more likely to contract for higher ex ante severance, although not so for CEOs
with non-competition agreements.

44
  David Yermack, Golden Handshakes: Separation Pay for Retired and Dismissed CEOs, [published citation]
golden handshakes refer to separation packages awarded to CEOs when they retire or are dismissed.
45
  Ewa Sletten and Thomas Lys, Motives for and Risk-Incentive Implications for CEO Severance, [citation to
published paper].

                                                   11
        Rau and Xu analyze 2,192 severance agreements for 1,788 high level executives at 862
firms listed on the COMPUSTAT database in 2004. They define severance agreements to cover
both change-in-control agreements as well as contracts that provide for termination with good
reason/without cause. They find that severance pay increases as firm risk increases, particularly
for small firms and firms that are likely takeover targets. Change-of-control agreements lead to
significantly higher severance pay and are more common at firms with high institutional
ownership levels if the executive is a CEO or Board Chairman.


     C. Bonus Agreements

        Bonus contracts have been examined by several different researchers. Murphy has an
early study of the use of performance standards in executive bonus contracts using proprietary
data on 177 plans collected by a compensation consulting firm.                 He finds that “internal”
performance standards, which are based in large part on management’s actions or performance in
the current or prior year, are of one of two types: prior-year performance or based on the
company’s business plan or budget. Eighty-nine percent of companies rely on internal standards
for their bonus plans. The remainder of the plans use “external” standards based on measures
such as the performance of external peer companies. Companies are more likely to choose
external measures when prior year performance is a noisy measure of current performance. He
also finds that income smoothing is prevalent at companies using internal standards, but not in
companies using external standards.
        Carter, Lynch and Zechman look at the impact of the Sarbanes-Oxley Act on bonus
agreements, hypothesizing that firms would place greater emphasis on bonus arrangements after
financial reporting discretion decreased following the passage of the Act and other reform bills. 46
Using prior year earnings as the target for the bonus contracts, and an estimated weight on the
change in earnings as a proxy for the effort incentive provided to managers, they find that firms
place significantly more weight on earnings changes in the bonus contract post-Sarbanes-Oxley
than in prior years and that the relationship with bonuses and earnings increases is significantly
greater in the post-Sarbanes-Oxley period as well.


46
 Mary Ellen Carter, Luann J. Lynch and Sarah L.C. Zechman, Changes in Bonus Contracts in the post-Sarbanes-
Oxley Era, (Working Paper November 2007).


                                                    12
        Kim and Yang document the different characteristics of annual incentive bonus plans for
CEOs using the SEC’s newly mandated disclosures that became effective on December 15,
2006. 47 Their sample includes all of the S&P 500 firms for the three years after the reporting
change occurred. They report that the five main performance measures are earnings per share
(EPS), revenue, operating income, net income, and free cash flow. They find that EPS targets
are consistently set below the level of expected EPS, that EPS targets are below the levels
projected by analysts and are lower than historical growth levels for the firms. Moreover, they
find that actual bonus payouts are 114% on average of target payouts.


     D. Stock Option Awards and Plans

     Stock options’ features differ substantially across countries. For example, performance-
based vesting conditions are relatively uncommon in the U.S., although widespread in Australia.
Bettis, Bizjak and Coles study a sample of 983 of U.S. stock option awards that include either
accelerated or contingent-vested provisions based on firm performance. 48 Contingent-vesting
awards require one or more performance hurdles to be met for the grant to vest, whereas with
accelerated-vesting options, the award vests early if the specified performance condition is met.
They find that most performance-vesting grants have significant hurdles that require stock price
increases for vesting to occur and firms that award them have significantly better operating
performance than control firms. The likelihood of using performance-vesting options is
positively related to the proportion of outsiders on the board and the presence of a new CEO, and
negatively related to prior stock performance.
     Dahiya and Yermack study sunset provisions for modifying the terms of company stock
option plans when managers retire, die or resign from their firms. 49 Using data for companies in
the S&P 500 index in the Fall of 2005, they study 389 firms’ option plans or term sheets to find
whether the expiration date of options changes when an executive leaves the firm or whether the

47
  Daniel Sungyeon Kim and Jun Yang, Beating the Target: A Closer Look at Annual Incentive Plans (Working
Paper December 18, 2009).
48
  Carr Bettis, John Bizjak, and Jeffrey Coles, Stock and Option Grants with Performance-Based Vesting Provisions
(Working Paper October 2008).
49
 Sandeep Dahiya and David Yermack, You Can’t Take It with You: Sunset Provisions for Equity Compensation
When Managers Retire, Resign or Die (Working Paper December 2007).


                                                      13
vesting or exercisability terms change at that point. They find that managers that retire face
stronger sunset rules (and suffer larger value losses) at firms with strong growth opportunities.
Such firms exhibit lower management turnover. Executives that resign face very harsh sunset
rules, and are generally given very short periods of time to exercise their options. Given the
relatively short time period for employment of many corporate executives, their data are
consistent with the claim that a majority of option exercises occur after the executive has left the
company with a substantial loss in their value being experienced by the executive.


       E. Retirement Plans and Pensions

       Pensions and retirement plans normally comprise an important subset of the contracts
between a firm and an executive. Although many of the key terms of such plans are not publicly
disclosed, Bebchuk and Jackson estimated the annual value of pension benefits for CEOs that
left their firms in 2003 and the first five months of 2004. They find that pension benefits
constitute a large portion of total executive compensation for many executives. They discover
that these benefits are not performance-sensitive because they are largely tied to base salary, or
other compensation measures, in the years preceding the executive’s departure.
       Gerakos focuses on CEOs’ potential tradeoff between pension benefits and other forms of
compensation. 50 His sample is comprised of 442 CEOs from S&P 500 companies as of 2005.
He finds that CEOs trade off 48 cents of cash compensation and equity grants for every dollar of
additional pension benefits they receive from their firms. As this is less than a dollar for dollar
tradeoff, he argues that it is consistent with CEOs having a degree of power over their boards of
directors.
           Kalyta uses a sample of the 60 largest firms on the Toronto Stock Exchange to examine
supplemental executive retirement plans (SERPs). 51 He finds that while more transparent forms
of compensation (salaries, bonuses and stock options) appear to be driven by economic variables
at firms, SERP benefits, which are very difficult to observe, are closely related to an executive’s
power with respect to their firm’s board of directors. He further finds that where manager’s

50
     Joseph Gerakos, Chief Executive Officers and the Pay-Pension Tradeoff (working paper 2008).
51
  Paul Kalyta, Compensation Transparency and Managerial Opportunism: A Study of Supplemental Retirement
Plans, 30 Strategic Management Journal (2009).


                                                         14
SERP benefits are contingent on firm performance, the company will have lower R&D
expenditures in the last few years prior to the executive’s retirement, which is consistent with
managerial behavior aimed at maintaining higher current earnings at the expense of future
returns.


     F. Other Contractual Clauses

     There are a wide variety of other provisions that are part of the contractual web between
executives and their firms.     The enforcement of non-competition provisions or agreements
represents another type of restriction that has been examined in a paper by Garmaise. 52 Using a
random sample of 500 Execucomp firms, he finds that 70.2% of these firms use these
agreements. He analyzes differential enforcement patterns across states for non-competition
agreements and finds that stronger enforcement makes it more likely that a firm will employ
such agreements. Increased enforceability is also correlated with reduced executive mobility,
reduced R&D expenditures and lower capital expenditures per employee.
     Finally, Thomas, O’Hara and Martin study the use of arbitration provisions in CEO
employment contracts. 53 With a sample of 551 contracts, they find that only approximately one
half of these contracts contain arbitration clauses. Arbitration provisions are more likely to
appear in contracts of CEOs at firms in industries that are experiencing rapid levels of change or
that are less profitable. They do not find that arbitration clauses are more likely at firms where
the executive has a greater amount of power.


     III.   Data


     The biggest challenge in this project was to collect comparable sets of employment contracts
in the two countries. While the U.S. disclosure rules have for many years required registered
firms to disclose all material contracts with their executives, Australian rules are less demanding.


52
  Mark J. Garmaise, Ties That Truly Bind: Non-competition Agreements, Executive Compensation and Firm
Investment (Working Paper date? ).
53
 Randall S. Thomas, Erin O’Hara and Kenneth Martin, Arbitration Clauses in CEO Employment Contracts: An
Empirical and Theoretical Analysis, forthcoming Vanderbilt Law Review (2010).


                                                  15
Only in 2003 did Australian firms have to disclose any information about these contracts and the
mandatory requirements stop well short of forcing them to provide the actual agreements. As we
explain below, this made the data collection process a major challenge.


            A. U.S. Data Collection

       With the U.S. data, we used the EDGAR, 10-K Wizard and LiveEdgar databases to locate
all employment contracts for chief executive officers at S & P 1500 companies from 1995 to
2008. Each of these databases contains all SEC filings made by American registered companies
under the federal securities laws. The EDGAR database is maintained by the SEC, while 10K
Wizard and LiveEdgar are privately managed. Under existing securities law disclosure
requirements, companies are required to disclose on EDGAR their CEOs’ employment
agreements.
       We located these CEO employment contracts using a variety of search techniques. First,
we examined each company’s definitive proxy statements for each sample year. In the
compensation section of these filings, companies are required to discuss any material contracts
that exist between them and their senior officers. We relied on these disclosures to reveal all
CEO employment contracts for these companies during this time period. However, as we
proceeded in our search, we quickly realized that very few contracts were attached to firms’
proxy statements and that we needed to search through the firms’ other SEC filings in order to
find the contracts. We therefore supplemented our initial search by checking SEC filings whose
filing dates were close to the date of the contract. In most cases, this resulted in finding the
contract.
       However, if we still could not find the contracts, then we used key word searches of SEC
filings made by each company. We searched the following phrases: employment contract,
employment agreement, executive agreement, and any title for a contract that was listed in the
company’s proxy statement. 54 Using these search terms, we found a number of additional
contracts attached to a wide variety of different SEC filings. Companies did not appear to
systematically use any particular type of filing for disclosing these contracts, although we


54
  For example, if the proxy statement stated that the company’s CEO had an “Employment Understanding
Agreement,” we would specifically search using that term.


                                                16
frequently found them attached to 10-K’s, 10-Q’s, 8-K’s and for companies issuing stock for the
first time, S-1’s. We were unable to find contracts that predated the beginning of the subject
companies’ EDGAR filings, usually in 1996, and in a limited number of cases, we were unable
to find contracts that were disclosed in the company’s proxy statements even after the company
commenced filing its disclosure documents because the contracts did not appear to be attached to
any of the company’s SEC filings. 55
        We read the companies’ proxy statements whenever they discussed their CEOs’
employment contracts. While companies frequently provided extensive disclosures concerning
the contents of these employment contracts, once we compared these disclosures with the
contracts themselves, we found that there were frequently discrepancies. Therefore we
determined that it was necessary to code the contracts themselves in order to ensure greater
accuracy in our data. We wrote a coding manual for the contracts so that each variable that we
were interested in could be systematically collected. We collected a comprehensive set of
important contract information, including basic compensation information, severance, perquisites
and various legal constraints on the CEO and the firm. For example, we generally collect
severance information from an employment contract under the sub-section, “Compensation after
termination of employment/Company obligations after termination of employment/Severance
Payments.”
        We augmented this with data from the Execucomp database, where we extracted further
information on CEO compensation details, especially bonuses, CEO age, and CEO tenure and
appointment date. In addition, we extracted information on stock daily returns from the CRSP
database to calculate daily return standard deviations and extracted GICS industry codes and
book value of assets from the Compustat database.


            B. Australian Data Collection

        We started by deciding to study the sample of firms in the ASX 200, the foremost
Australian stock index. This stock index covers the largest publicly listed firms based in
Australia and listed on the Australian Stock Exchange, Australia’s primary stock exchange. To


55
  Given that we exhaustively searched through every filing made, we suspect that these contracts were not filed
with the SEC, or that the document that they were attached to was not available on EDGAR.


                                                      17
assemble our sample of firms, we began by obtaining a list of the ASX 200 firms in 2003 and
tracked forward in time to obtain new additions, deletions, and name changes and their dates.
This represents the Australian firms in our sample. We also searched for whether any of these
firms were cross listed on a major US stock exchange at the CEO contract start date as explained
below.
         To obtain CEO employment contracts of firms in the ASX200, we first individually
contacted each firm requesting a copy of their current CEO’s employment contract subject to the
terms of a non-disclosure agreement, if they requested one. Using this process, we obtained 34
CEO employment contracts from 31 Australian firms. Next, we examined whether any of our
sample firms made filings with ASIC (the Australian Securities and Investment Commission)
that included their CEO’s employment contract. We did the same type of search for the firms
cross-listed in the US and looked for this information in Securities and Exchange Commission
filings. We obtained a number of additional contracts in this manner.
         In 2003, Australian listed companies were advised by ASX Corporate Governance
Council to disclose the senior executive employment package. This required firms to report
current contract details and details on any new contracts entered into when CEOs are renewed or
replaced (“The Summary Terms of Employment”). CEO employment contract summaries
include compensation details such as salary, bonuses, restricted stock and stock options, as well
as long term performance incentives and severance agreements. Since 2004, firm annual reports
report these contract summaries in the remuneration report, or director's report, section of the
annual report and sometimes also include full employment contracts in their appendices.
However, the degree of completeness of these contract summaries varies greatly and therefore
we were only able to use those summaries that included compensation and severance details. For
the purposes of coding these contracts’ primary features, we used a detailed coding manual
modified from an earlier coding manual used for coding US employment contracts.
         In addition, we used the Fin Analysis database, maintained by Huntleys' Investment
Information Pty. Limited (a wholly owned subsidiary of Morningstar, Inc.), to locate the ASX
Announcement of CEO/ Managing Director Appointment and the change/ renewal of
employment agreement. The Summary Terms of Employment was usually attached to the
Announcement of Appointment which is categorized under “Company Administration.”



                                               18
       The Summary Terms of Employment does not specify all the employment terms, in
particular the terms which were disclosed as standard employment policy such as Long Term
Incentive Payment Schedule and Trading Policy of equity base rewards.              We therefore
supplemented the Summary Terms of Employment by retrieving the relevant information from
the Annual Report of the respective financial year. We also ran the key phrase searches through
the web search engines, Google.com.au and Bing.com.           The search phrases were “CEO
employment contracts”, “CEO terms of employment” and “CEO appointment announcement”.
By going through the first 20 pages of search results of both search engines, we found 14
Summary Terms of Employment of CEO.
       To obtain information on which stocks are cross listed, we used two databases. One is
the EDGAR database to locate the forms of registration and deregistration filed by the Australian
companies. We identified using the SEC’s Form List Forms F-3, F-1 and 425, which are related
to registration of foreign company, and Form 15F for deregistration. We then searched the
EDGAR database in two ways: first, using the “EDGAR Full-Text Search” to search the full text
of EDGAR filings from the last four years of the Australian companies; and second, we looked
in the “Historical EDGAR Archives” which allows us to retrieve the record of filings from 1994
through 2010. The second database that we used is the Australia database “Fin Analysis”. We
searched the Archives of Announcements to locate the announcements of registration and
deregistration in the U.S. exchange markets.
       To obtain information of Australian CEOs nationality, and particularly whether they are
US citizens, we used a number of data sources including the ASX Announcement of
Appointment, the Annual Report, Company websites and other online databases: Reuters,
BusinessWeek, Wikipedia, Who’s Who, Bloomberg, Newsweek, Hoovers-People. To obtain the
initial appointment dates of CEOs, we used multiple data sources including the Fin Analysis
database, the Dat Analysis database, as well as our CEO employment contracts, their summaries
and any news reports about our sample companies.
       To obtain daily stock returns for the year prior to the contract start date, we used
Datastream to download the daily closing price (adjusted) in the last 8 years of the current
ASX200 companies.       For the delisted companies, we downloaded the daily closing price
(adjusted) of the year prior to the contract start date from Morningside’s Dat Analysis database
and converted these into daily returns. We then used the prior year of daily returns to calculate

                                               19
return standard deviations. We obtain daily Australian-US dollar foreign exchange rates for the
Australian contract start date and the fiscal year ends before the Australian contract start date,
which is the date of the book value of total assets, from the Federal Reserve Bank of St Louis
website http://research.stlouisfed.org/fred2/categories/94.
       Our Australian employment contract data is by necessity a combination of full CEO
employment contracts and contract summaries taken from two sources: the reports required to be
disclosed in annual reports: and company press releases at the time of new CEO contracts are
signed. Although the summaries and press releases contain data on major contract features, we
want to do further analysis on the reliability of this information. Our concern is that CEO
employment contracts of Australian publicly listed firms do not need to be disclosed under
current securities regulations, so that for many firms we have only the summaries and press
releases.   While an implicit assumption of the Australian disclosure regime is that these
disclosures are adequate for supplying investors and securities analysts with the details of the
economically important elements of the CEO contracts, this is an empirically untested
proposition.
       As an initial approach to assessing the adequacy of the Australian firm disclosures, we
had two research associates separately code this subsample of CEO employment contracts, one
using the actual employment contract and the other using only the company summaries coming
from the press releases and remuneration reports. Of course, this comparison is far from
definitive since firms that are willing to voluntarily release their CEOs’ full employment
contracts may also be more forthcoming in their contract summaries. On the other hand, it is
also possible that even with this potential bias, we may still find that the required summary
information is less than adequate when it comes to obtaining a clear picture of the CEO’s
economic incentives.
       In comparing Australian contract features based on the two different data sources,
specifically the actual CEO contracts and the contract summaries, we find that the summaries are
generally fairly accurate. However, for contract features that are not required to be disclosed,
namely items that are not included in CEO compensation or severance agreements, the
summaries are not always fully disclosed. This means that for these contract features, we may be
unavoidably undercounting occurrences of some of these contract elements. [Further discussion
to be added.]

                                                20
           C. Methodology

       In comparing Australian and US firms that are publicly listed and represented on the
ASX 200 and the S&P 1500, it is immediately obvious that the distribution of firms by industry
and by firm size are drastically different, with Australia having a relatively larger number of
mining and finance firms and many fewer firms in technology intensive and large scale
manufacturing industries.    Australia also has a much smaller number of firms and the typical
size of these firms is much smaller. With this difference in populations in mind, we concluded
that comparing the full populations of firms in the two countries was highly problematic, even in
a multivariate regression context, given that we were doubtful that we could adequately control
for the differences, which requires a great deal of confidence about knowing the correct
specifications to control for such large scale differences. It also requires adequate controls for
industry differences that could have a dynamic component, which industry fixed effects were
unlikely to fully adjust for. As a result of these considerations, we concluded that we needed to
engage in some basic matching of firm characteristics. We also decided that we needed to
roughly match contract start dates, since there is a clear temporal trend in certain key contract
features, particularly compensation levels.


           D. Matching Procedure for U.S. and Australian Contracts

       Our approach to matching the contracts is as follows. We exploit the fact that there is a
much larger population of US firms to attempt to select a good match for each Aussie contract
that we have detailed information on. To match on industry, we require US firms to be drawn
from the same 2 digit GICS industry classification. To match on calendar time, the contract start
dates must be within 2 calendar years of each other. Finally, to match on firm size, we require
the firms’ book values closest to the contract date (or averaged across the two adjacent fiscal
years) to be within 300% of each other.         This matching process is complicated by two
considerations: first, we need to value all contract features denominated in money into a single
currency, which we accomplish by converting the Australian dollars into US dollars on the date
of the Australian firm’s fiscal year-end; and second, we need to adjust for the fact that Australian
firms generally have fiscal year-ends that fall on June 30, while US firm fiscal year-ends


                                                21
typically fall on December 31. To adjust for these calendar differences, we use the Australian
total assets for the fiscal year just prior to or on the contract start date. We then take the two US
fiscal year-ends that bracket the Australian fiscal year-end and average them and use this to
match with the exchange rate adjusted Australian total assets.
         After this matching process is completed, we then assess how closely the firms matched
in terms of size and start dates and find that the differences are reasonably small. We started with
169 contracts by 111 Australian firms listed on the ASX 200. This included some firms with
multiple contracts. Specifically, we have 2 firms with five contracts, 1 firm with four contracts,
5 firms with three contracts and 37 firms with two contracts. After matching, we are left with
102 contracts by 73 Australian firms.               We report in Table 1 below, the means, medians and
standard deviations for the Australian and US firms’ contract start dates and their total assets.

      Table 1: Asset  Size and Contract Start Date 
                 Matches Assessment
                  Australian     U.S.     T Statistic   Australian     U.S.     Wilcoxin   Australian      U.S. 
                    Mean        Mean         for         Median       Median    Z value    Standard      Standard 
                    Value        Value      Mean          Value       Value                Deviation     Deviation
                                          Difference


    Asset Size          4707      3682       0.4799           1752      1398      0.9292       12671         7422



    Contract        9/23/05     1/25/05                   12/1/05      6/3/05
      Start 
      Date




         We see from Table 1 that the differences in the typical contract start dates are quite small,
with a mean difference of 8 months. Likewise, the difference in the mean and median size of
Australian and US firms, measured by total assets is also small. A standard t test for the
difference in mean size of assets is insignificant, as is a Wilcoxon test for the difference in
median asset size.


   IV.         Empirical Evidence


                                                         22
        A. Univariate Analysis of Major Contract Features of Australian and US Corporations


        We break our descriptive analysis into three major tables that summarize key features of
the CEO employment contracts. 56 Table 2 covers major direct CEO compensation elements,
Table 3 covers deferred compensation features and contract length, while Table 4 reports on a
number of other contract features such as non-compete clauses.
        In Table 2, we present data on starting salaries (USD), while the other compensation
variables are all presented in frequencies as to whether they are mentioned in the employment
contract or contract summary. The data are presented in this manner because many of the
contracts only specify dollar amounts for the initial salary level with all other compensation
parameters being determined by the Compensation Committee, or in Australia, by the
Remuneration Committee. We intend to use the actual dollar values for all of the compensation
variables in the later drafts of the paper, although collecting these will require examining other
sources besides the contracts.
        The data reveal a number of interesting variations between the two countries. First, the
Australian CEOs are paid greater amounts of salary than American CEOs even after converting
the Australian currency into US dollars.                 Furthermore, the mean/median differences are
statistically significant.      The American contracts are significantly more likely to include
restricted stock and stock options, but both groups are equally (and highly) likely to have their
contract specify that they will receive annual bonuses. Australian contracts mention long term
incentive plans significantly more frequently than those of their U.S. counterparts. It is important
to recognize that these plans include restricted stock, performance rights and stock options when
payoffs are conditional on meeting particular performance hurdles. It is also noteworthy that the
frequency of long term incentive plans is almost double for Australian CEOs. In contrast, we see
the opposite pattern for restricted stock, while stock options are four times more frequent in U.S.

56
  Another interesting difference that is not shown in these tables is that all Australian CEOs have written contracts
according to one distinguished Australian lawyer that handles executive employment arrangements at many public
companies. Thomas interview transcript with Attorney 1, at 1-2. By comparison, earlier work has found that in the
U.S. less than one half of CEOs in the S&P 500 as of 2000 had written employment contracts. Gillan, et al, Explicit
versus Implicit Contracts, supra note at 1629.
 


                                                        23
CEOs’ contracts compared to Australian contracts. Another extremely important difference in
these contracts that is hidden by these basic descriptive statistics is that almost all of the
Australian contracts that specify restricted stock or stock options include one or as many as three
performance hurdles that must be met before the stock or option compensation can be paid. This
is in addition to the requirement of continued employment with the firm, which is generally the
only requirement that needs to be met in the U.S. contracts. [We are currently coding these three
alternative types of Australian long term incentive payoffs for analysis and plan to compare these
forms of restricted stock and options with the U.S. analogues that generally lack performance
hurdles].


 Table 2: CEO Compensation Features: Base 
  Salary and Frequency of Other Features
                                            Salary        Bonus            LT Incentive   Restricted     Stock 
                                            (US $)         Plan                Plan         Stock       Options


     Australian       Mean (%)              888,886                 95               81            22        27
                      Median (%)            809,750
     US               Mean (%)              691,477                 95               51            46        82
                      Median (%)            755,000
     Difference       Mean (%)              197,409                  0               29           ‐24       ‐55
                      T Statistic*             0.004       1.000                  0.000        ‐0.011     0.000
     Difference       Median (%)             54,750
                      Wilcoxon Z*              0.045
                      * P Value


            We were surprised to see higher base salary figures for the Australian firms. In several
interviews of Australian corporate governance participants conducted by one of us we inquired
about possible explanations for this difference.                         One corporate attorney explained that in
Australia, perquisites were generally rolled into salary, instead of being separately listed because
of the higher fringe benefit tax rates that applied to perquisites under Australian tax law. 57
Similarly, the higher prevalence of pension plans in Australia, shown in Table 3 below, likely
57
      Thomas interview transcript with Attorney 1, at 10-11.


                                                               24
reflects the mandatory nature of company contributions to superannuation plans that would be
mentioned in most Australian contracts. 58                  So it appears that legal differences may largely
explain some of these basic variations in employment contract terms across Australia and the US
landscapes.
           Table 3 examines contract length, deferred compensation terms of the contracts and
change-in-control features of these contracts. The contract length variable is in years, while all
of the other variables are in frequencies. Again we use frequencies because calculating the dollar
values for the deferred compensation variables requires examining other data sources besides the
contracts themselves. [We plan to add valuations of these features in later revisions].

           Table 3: Contract Length and Frequencies 
             of Deferred Compensation Features
                                       Length     Pension          Profit        SERP       Change in    Gross‐
                                       (Years)                    Sharing                    Control      Up


 Australian        Mean (%)               1.81              68               0          4           31       25

                   Median (%)             1.00

 US                Mean (%)               2.60              38           12         28              80       39

                   Median (%)             3.00

 Difference        Mean (%)              ‐0.79              30          ‐12        ‐24             ‐48      ‐14

                   T Statistic*          0.020             0.00       0.083      0.022           0.000    0.261

 Difference        Median (%)            ‐2.00

                   Wilcoxon Z*           0.048


           Closely examining Table 3, we see a number of very interesting differences in the
contract features. U.S. contracts are significantly longer than the Australian contracts with the
median length of the Australian contracting being a year, while in the US it is three years. Thus,
U.S. CEOs generally have much longer contracts than their Australian counterparts. U.S.
contracts are also significantly more likely to include mention of in profit sharing plan
participation as well as a supplemental executive retirement plan (SERP). American CEOs’
employment contracts are also significantly more likely to contain change-in-control protections

58
     Thomas interview transcript with Attorney 1, at 13.


                                                             25
(C-in-C) and a tax gross-up provision, with C-in-C provisions being more than twice as frequent
and gross-up provisions being about 50% more frequent in US contracts. By contrast, Australian
CEO employment contracts are twice as likely to discuss his/her pension funding.
        In some instances, there are underlying legal rules that may explain several of these
differences.    For example, the Australian corporation code and Australian Stock Exchange
(ASX) listing rules may explain the relatively low incidence of change-in-control provisions.
Under section 200B of the Australian Corporations Act, shareholder approval is required if a
company pays its CEO or other directors more than a specified threshold level of
benefits/remuneration in connection with their leaving office. Prior to 2009, the threshold level
was “seven times the average annual [remuneration] over the preceding three years.” 59
However, this portion of the Corporations Act was amended to apply to all contracts introduced
or amended after November 23, 2009. The new code provision requires shareholder approval of
all termination payments above one year’s base salary for all key management personnel.
Furthermore, ASX listing Rule 10.18 “prohibits a senior executive [from] receiving a termination
payment due to a change in the control of the company.” 60 Given these rather stringent rules, it
is not surprising that we see fewer change-of-control provisions in the Australian contracts. 61
These provisions do raise an important question as to why we see such major differences in
corporate governance systems between the U.S. and Australia. Another interesting question is
why we observe any change of control provisions in the Australian contracts and how this was
legally accomplished.
        We turn next to Table 4 where we look at some other important features of these
contracts that can be viewed as more shareholder friendly. In this table we include data on Do-
Not-Compete (DNC) clauses, mandatory arbitration provisions, and several different limitations


59
  Kym Sheehan and Colin Fenwick, Severance: The Corporations Act 2001 (CTH), Corporate Governance and
Termination Payments to Senior Employees, 32 Melbourne Law Review 199, 212 (2008).
60
  Australian Government Productivity Commission, Productivity Commission Inquiry Report No. 49, Executive
Remuneration in Australia (Dec. 19, 2009).
61
  In practice, Australian lawyers put in “material diminution” clauses into the termination provisions of the CEO’s
contract to take the place of a change-of-control provision. These clauses specify that the CEO’s loss of
management authority constitutes a termination without cause, and when combined with other commonly included
actions that also trigger a termination without cause, they provide the same protections as a change-of-control
provision.


                                                        26
on the sale, pledge, hedge or other economic transactions involving a CEO’s restricted stock or
stock options. All of these variables are measured by the frequency with which they appear in the
contracts.


        Table 4: Frequencies of Other Important 
                    Contract Features
                               DNC      Arbi‐           Hedge      Pledge     Stock Sale     Other 
                                       tration        Constraint   Constr.    Constraint    Restric‐
                                                                                             tions



 Australian   Mean (%)            63             0            10         2              2         8




 US           Mean (%)            79         53                0         2              0         2




 Difference   Mean (%)           ‐16        ‐53               10         0              2         6

              T Statistic*     0.048      0.000            0.024     1.000         0.322      0.173




       Table 4 shows that DNC clauses appear frequently in both Australian and US contracts,
although U.S. contracts are significantly more likely to have such clauses than the Australian
agreements. Arbitration clauses are also quite common in American contracts, but are non-
existent in Australian contracts. Hedging, pledging, sale and other restrictions on the sale of
restricted stock and stock options are not popular in either country, though they are noticeably
more common in Australian contracts, occurring in as many as 10% of cases. However, these
differences across Australian and the US are not statistically significant, with the exception of
hedging restrictions.    Overall though, the Australian contracts seem to reflect a greater
shareholder concern and determination to restrain a CEO’s desire to hedge away the firm risk
associated with stock-based compensation, possibly because shareholders have greater power in
Australia through more concentrated institutional ownership.
       Australian corporate lawyers interviewed by one of us offered the following insights into
why some of these contract differences exist. For instance, when asked about the absence of
arbitration provisions, one well-known Australian corporate lawyer that has drafted many of


                                                 27
these agreements stated: “… we have a very strong labor union movement history here and
arbitration has industrial connotations. …[G]entlemen wouldn’t engage in that sort of business
basically. It’s just not considered desirable.” 62 However, a second experienced attorney was
less emphatic when asked if CEO employment contracts ever contained such provisions, saying:
“Yes, [but] not all that common. But there is a reasonable incidence of where there is a dispute,
it will be subject to arbitration…” 63


           B. Regression Analysis

           While we have found some notable differences in the typical contract features found in
Australian and US matched firms, this could easily be due to differences in other firm, CEO and
contract characteristics of the two samples. Thus, to further refine our analysis, we move beyond
mean and median differences in contract characteristics to multivariate ordinary least squares
(OLS) regressions where we can control for a number of key CEO employment contract features
in our matched sample of Australian and US contracts. In addition to the key explanatory
variable, an Australian firm indicator, we use as explanatory variables the log of total assets to
further control for firm size differences, prior return standard deviation to control for firm total
risk borne by senior managers, CEO tenure to partially control for CEO influence, an indicator of
a newly appointed CEO to control for more CEO negotiating power, and CEO age. Finally, we
also include an indicator for Australian contracts where we have the full contract to further
assess whether there is an information source induced effect.
           Following the existing literature, we begin our analysis of these CEO contracts by
focusing on CEO base salary. The key question is whether the existing differences in salaries
have a national component or whether differences in salary levels are explained by other
differences in firm, CEO and contract characteristics. Differences in salary by firm nationality
effect could be due to variations in corporate governance, corporation and securities laws,
taxation, or other differences across countries.
           Table 5 summarizes the results of our regression analysis of CEO salaries. We find that
the indicator for Australian companies is significantly positive, consistent with Australian firms

62
     Thomas interview transcript with Attorney 1, at 8.
63
     Thomas interview transcript with Attorney 2, at 18.


                                                           28
paying higher fixed salaries than US firms, even after controlling for firm size, stock return
volatility, CEO tenure and indicator of a new CEO. Of these variables, firm size and CEO tenure
and a new CEO indicator have significant positive effects, which are consistent with the existing
literature. We also add a control for firms in the energy industry in the second regression.


              Table 5: OLS Regressions of CEO Salary
The dependent variable is a CEO’s annual cash salary. The sample includes both Australian and US
observations where the Australian contract can be matched with a similar US firm in terms of industry,
asset size and contract start date. The sample period of contract start dates is 1998-2008. The variable
definitions are found in the appendix
 Variable           Estimate         t value     Estimate       t value      Estimate      t value
 AU firm            .172             3.75        .187           4.64         .185           4.88

 Log firm size      .230             7.99        .236           8.15         .232           7.41

 CEO tenure         .015             4.07        .017            5.01        .018           5.18

 New CEO            .055             0.65        .038            0.43        .044           0.52

 Stock              ‐.051            1.14        ‐.040           0.87
 volatility


 Inverse stock                                                               .002           1.38
 volatility


 Energy                                          ‐.177           4.44        ‐.166         3.90
 Industry


 Intercept          11.735           42.53       11.677         42.62        11.513        47.74

                    N = 120          R 2 = .57   N = 120        R 2 = .58    N = 120       R2 = .58


       We find that energy industry has a significant negative effect on the log of CEO base
salaries. Finally in the third regression we replace stock return volatility with its inverse and find
that the sign shifts to positive, but insignificant effect. In further analysis, we plan to replace
return volatility with residual return volatility and add a market to book ratio to capture growth
opportunities. So overall, we find that Australian firms tend to pay their CEOs higher base
salaries than US firms, even after controlling for several other differences in firm characteristics.
Thus, our matched sample univariate analysis is further borne out in our regression analysis. [We
are currently in the process of adding the following new control variables to our regression




                                                  29
model: CEO age, the firm’s prior market to book ratio, debt to total asset ratio and operating
performance, measured by ROA.]
        Another important question is whether the Australian CEO compensation is affected by
international labor market competition. We explore this question by focusing only on the
Australian subsample of observations and add two additional control variables. The first variable
is an indicator for Australian firm CEOs who are US citizens. The second variable is an
indicator for Australian companies that are cross-listed on a major US stock exchange. For this
purposes of this analysis, we estimate OLS regressions on the log CEO salary in Table 6.


Table 6: OLS Regressions of CEO Salary in AU Firms
The dependent variable is a CEO’s annual cash salary. The sample includes Australian for
observations where the Australian contract can be matched with a similar US firm in terms of industry,
asset size and contract start date. The sample period of contract start dates is 1998-2008. The variable
definitions are found in the appendix.

    Variable       Estimate       t value      Estimate        t value       Estimate        t value

 Log firm                .336          7.03           .335           6.61           .330          6.28
 size

 CEO tenure              .049          4.12           .050           3.39           .050          3.45

 New CEO                 .221          1.46           .229           1.36           .234          1.42

 Stock                   .001           .02           .001            .02
 volatility

 Inverse                                                                            .001            .38
 stock
 volatility

 Energy                 -.254         -3.35          -.263          -4.74          -.258          -4.21
 Industry

 US Cross-              -.330         -2.52          -.329          -2.52          -.325          -2.50
 listed

 US CEO                                               .029            .29           .027            .28

 Intercept            10.854         30.35         10.854          30.35         10.838          25.32

                      N = 74       R2 = .48        N = 74       R2 = . 47        N = 74       R2 = .47




        In evaluating our results, we see several interesting findings. First, firms that cross list
with the US have significantly lower salaries, consistent with the pattern we observe for the US

                                                    30
CEO compensation. Second, we find an insignificant effect of having a US CEO. This result is
surprising, but it may reflect at least two possibilities. First, we may simply have too few
observations where the Australian firm has hired a US national to be CEO. As we expand our
sample, we can reevaluate the validity of this possible explanation. Second, it may be that the US
national has been working in Australia so long that he or she no longer views the US labor
market as a good alternative due to the strong personal, business and financial ties that he or she
has developed in Australia.
       We next examine the frequency with which we find several other components of
compensation to assess how similar these elements are in Australia and the U.S. We start by
examining the frequency with which the CEO employment contracts include bonuses, LT
performance plans and stock options in Tables 7-9 respectively.            We begin with Table 7
presenting an analysis of the likelihood that a firm will include a bonus plan in the CEO
compensation package.


  Table 7: Probit Regressions of Bonuses in Australian and US 
                   CEO Employment Contracts 
The dependent variable is an indicator that takes a value of one when the contract specifies a bonus
plan and is zero otherwise. The sample includes both Australian and US CEO salaries for observations
where the Australian contract can be matched with a similar US firm in terms of industry, asset size
and contract start date. The sample period of contract start dates is 1998-2008. The variable
definitions are found in the appendix.
 Variable                     Estimate             Chi Sq           Estimate             Chi Sq 

 AU firm                             ‐.119                0.10             ‐.032                   0.01 
 Firm size                            .189                1.44             .242                    2.19 
 CEO tenure                           .034                0.34             .015                    0.07 
 New CEO                              .648                1.96             .481                    1.06 
 Stock volatility                     .230                0.90                   
 Inverse stock                                                             ‐.015                   2.99 
 volatility 
 Intercept                           ‐.430                0.08             .617 
                                  N = 180  Pseudo R2= .07               N = 180  Pseudo R2= .09 



                                                  31
       The probit regression estimates are presented in Table 7 and they show that bonus plans
do not appear to be related to whether the firm is Australian or US domiciled. In addition, the
only factor that has a positive impact on the frequency of bonus plans is when the employment
contract is with a new CEO. The next question that we would like to examine is whether after
controlling for CEO salary this conclusion changes.
       In Table 8, we present probit estimates of the likelihood of a CEO having a long term
incentive plan in place. It is important to recognize that these plans exclude performance rights,
restricted stock and stock options. We find that Australian firms are significantly more likely to
give their CEOs long term incentive plans than are US firms, even after controlling for firm size,
CEO tenure, new CEO appointments and stock return volatility. At the same time, we also find
that larger firms are more apt to include such plans. Most interestingly, we find that CEOs with
longer tenure, new CEOs and firms with more volatile stock returns are significantly less likely
to give their CEOs long term incentive plans.


Table 8:  Probit Regressions of Frequency of LT incentive plans 
       in Australian and US CEO employment contracts 
The dependent variable is an indicator that takes a value of one when the contract specifies a
bonus plan and is zero otherwise. The sample includes both Australian and US CEO salaries
for observations where the Australian contract can be matched with a similar US firm in terms
of industry, asset size and contract start date. The sample period of contract start dates is 1998-
2008. The variable definitions are found in the appendix.

 Variable             Estimate            Chi Sq      Estimate               Chi Sq       Estimate     Chi Sq 

 AU firm                    0.973           13.09              0.930           11.36         1.393        8.37 
 Firm size                  0.153             2.49             0.133             1.90       ‐0.260        1.99 
 CEO tenure               ‐0.046              1.99             ‐0.032            1.06       ‐0.080        2.25 
 New CEO                  ‐0.665              4.47             ‐0.439            1.90       ‐1.056        4.39 
 Stock volatility         ‐0.164              1.77             ‐0.178            2.08       ‐0.290        1.87 

 Energy Industry                                               0.896             2.31        1.169        3.12 

 Salary                                                                                      1.563        5.95 

 Intercept                ‐0.342              0.14             ‐0.352            0.15      ‐17.842        5.35 

                                                          32
                      N = 144       Pseudo       N = 144      Pseudo        N = 90       Pseudo 
                                     2                         2                          2 
                                    R = .16                   R = .16                   R = .27 


       In Table 9, we examine the frequency of stock option grants in CEO contracts across the
US and Australia. In our preliminary analysis, we find that Australian contracts are significantly
less likely to include stock options, especially stock options without performance hurdles.
However, given that none of our current control variables has any significant explanatory power,
we are hesitant to place a lot of weight on these preliminary regressions until we further explore
whether other CEO or firm characteristics may be useful in explaining option use across firms.
[We are currently coding the Australian long term incentive contracts into cash, stock and option
payoffs, conditional on meeting performance hurdles.          One interesting feature of these
performance hurdles is that there are a variety of performance measures used and even in
individual employment contracts there can be two or three performance criteria.]


       [Table 9 to be added]


       We next examine how severance contracts differ between Australian and US CEO
employment contracts. In codifying severance contracts, there are a number of elements that
must be taken into account, including whether the payment is lump sum or periodic, the size of
the payment as a function of base salary and whether there is also a bonus component, the length
that any periodic payment is made and whether this is a function of the remaining life of the
employment contract. The contract payment can also be a function of whether the CEO is hired
for just cause or without cause or leaves voluntarily. Another key contract feature is the list of
CEO actions that represent just causes for terminations. To simplify the discussion, we discount
periodic payments based on the risk-free interest rate in the respective country. For contracts
that specify payments that last for the reminder of the contract period, we assume that the
expected remaining life of the contract, conditional on early termination, is half the contract
period. This allows us to convert the uncertain severance payment stream into an equivalent
lump sum payment.
       Key differences between typical Australian and US severance contracts are that …..



                                               33
        [Table 10 to be added]


        The results of our comparison US and Australian contracts offer some interesting contrast
with several earlier studies by Conyon and Murphy (2000) and Conyon, Core and Guay (2009)
that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that
U.S. CEO compensation is significantly higher than U.K. CEO compensation. What is
interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in
comparison to Australia. What we hope to do in further analysis is to assess whether this
conclusion also holds for CEO total compensation. The other very interesting set of issues that
we plan to analyze shortly is how the structure of severance contracts, bonus plans and restricted
stock and stock option plans differ between CEO employment contracts in Australia and the US.
What we know from preliminary analysis is that Australian firms have performance hurdles
attached to essentially all their restricted stock and stock option plans, which is strikingly
different from the typical US CEO employment contracts.


   V.       Conclusions

        In summary, we find a number of similarities between CEO employment contracts in the
US and Australia. However, we also find some interesting differences in contract provisions, not
only in terms of compensation, but also with respect other contract terms such as contract length
and restrictions on CEO actions that can be viewed as more shareholder friendly. Some of these
differences appear to be explained by clear differences in the legal and regulatory environments,
such as the relative infrequency of change of control provisions in Australian contracts. Other
differences may reflect substitution of one form of performance based compensation for another.
However, there remain other contract features such as contract length that are not so easily
explained in this way. In these cases, it is interesting to speculate whether other institutional
differences such as tax codes, takeover protections, institutional share ownership levels and the
relative power of shareholders and boards in the two countries can help explain these remaining
contract differences.




                                                34
Appendix: Definitions of Variables

Salary                      CEO base salary. Sources: US – Execucomp, SEC filings, employment
                            contracts and DEF 14A, AU – Contract or Contract Summary

Bonus                       Accounting based cash bonus. Sources: US – Execucomp, SEC filings,
                            employment contracts and DEF 14A, AU - Contract or Contract Summary

Restricted stock            Stock grants that involve vesting made at the contract start date. Sources: US –
                            Execucomp, SEC filings, employment contracts and DEF 14A, AU - Contract or
                            Contract Summary

Stock options               Stock option grants that involve vesting made at the contract start date. Sources:
                            US – Execucomp, SEC filings, employment contracts and DEF 14A, AU -
                            Contract or Contract Summary

LT performance incentives   Compensation plans based on LT stock and accounting hurdles, where payment
                            can be in cash, stock or options. Sources: US – Execucomp, SEC filings,
                            employment contracts and DEF 14A, AU - Contract or Contract Summary

CEO age                     Age at the contract start date. Sources: US – Execucomp, AU-

CEO tenure                  CEO initial contract start date minus the CEO current contract start date.
                            Sources: US - CEO employment contract, AU – employment contract and
                            contract summary.

New CEO indicator           CEO start date is less than 6 months before the contract start

AU indicator                Australian headquartered company listed on ASX 200

Firm size                   Book value of assets at the fiscal year-end closest to the Australian CEO
                            contract start date and for the US matching firm the average of the two year-end
                            figures that bracket the Australian fiscal year-end. Sources: AU -

Stock volatility            Stock daily return standard deviation over the year prior to the contract start
                            date. Sources: US returns - CRSP, AU returns – Datastream.

Stock return performance    One year cumulative return over the year prior to the contract start date.
                            Sources: US returns - CRSP, AU returns – Datastream.

CEO start date              CEO’s Initial appointment date. Sources: US – Execucomp, AU - Fin Analysis
                            database, Dat Analysis database, as well as CEO employment contracts and their
                            summaries and news reports.




                                                 35

				
DOCUMENT INFO
Description: Ceo Employment Contract Granting Stock document sample