Dodd Tries to Undo Bonus Protections He Put In at Non Socialist

Dodd Tries to Undo Bonus Protections He Put In

While the Senate constructed the $787 billion stimulus last month, Dodd unexpectedly added an executive-compensation restriction to the bill. That amendment provides an “exception for contractually obligated bonuses agreed on before Feb. 11, 2009,” which exempts the very AIG bonuses Dodd and others are seeking to tax. The amendment is in the final version and is law.

(Excerpt) Read more at foxbusiness.com …

H. R. 1—403
‘‘SEC. 111. EXECUTIVE COMPENSATION AND CORPORATE GOVERNANCE.
‘‘(a) DEFINITIONS.—For purposes of this section, the following
definitions shall apply:
‘‘(1) SENIOR EXECUTIVE OFFICER.—The term ‘senior executive
officer’ means an individual who is 1 of the top 5 most
highly paid executives of a public company, whose compensation
is required to be disclosed pursuant to the Securities Exchange
Act of 1934, and any regulations issued thereunder, and nonpublic
company counterparts.
‘‘(2) GOLDEN PARACHUTE PAYMENT.—The term ‘golden parachute
payment’ means any payment to a senior executive officer
for departure from a company for any reason, except for payments
for services performed or benefits accrued.
‘‘(3) TARP RECIPIENT.—The term ‘TARP recipient’ means
any entity that has received or will receive financial assistance
under the financial assistance provided under the TARP.
‘‘(4) COMMISSION.—The term ‘Commission’ means the Securities
and Exchange Commission.
‘‘(5) PERIOD IN WHICH OBLIGATION IS OUTSTANDING; RULE
OF CONSTRUCTION.—For purposes of this section, the period
in which any obligation arising from financial assistance provided
under the TARP remains outstanding does not include
any period during which the Federal Government only holds
warrants to purchase common stock of the TARP recipient.
‘‘(b) EXECUTIVE COMPENSATION AND CORPORATE GOVERNANCE.—
‘‘(1) ESTABLISHMENT OF STANDARDS.—During the period in
which any obligation arising from financial assistance provided
under the TARP remains outstanding, each TARP recipient
shall be subject to—
‘‘(A) the standards established by the Secretary under
this section; and
‘‘(B) the provisions of section 162(m)(5) of the Internal
Revenue Code of 1986, as applicable.
‘‘(2) STANDARDS REQUIRED.—The Secretary shall require
each TARP recipient to meet appropriate standards for executive
compensation and corporate governance.
‘‘(3) SPECIFIC REQUIREMENTS.—The standards established
under paragraph (2) shall include the following:
‘‘(A) Limits on compensation that exclude incentives
for senior executive officers of the TARP recipient to take
unnecessary and excessive risks that threaten the value
of such recipient during the period in which any obligation
arising from financial assistance provided under the TARP
remains outstanding.
‘‘(B) A provision for the recovery by such TARP
recipient of any bonus, retention award, or incentive compensation
paid to a senior executive officer and any of
the next 20 most highly-compensated employees of the
TARP recipient based on statements of earnings, revenues,
gains, or other criteria that are later found to be materially
inaccurate.
‘‘(C) A prohibition on such TARP recipient making
any golden parachute payment to a senior executive officer
or any of the next 5 most highly-compensated employees
of the TARP recipient during the period in which any
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obligation arising from financial assistance provided under
the TARP remains outstanding.
‘‘(D)(i) A prohibition on such TARP recipient paying
or accruing any bonus, retention award, or incentive compensation
during the period in which any obligation arising
from financial assistance provided under the TARP remains
outstanding, except that any prohibition developed under
this paragraph shall not apply to the payment of longterm
restricted stock by such TARP recipient, provided
that such long-term restricted stock—
‘‘(I) does not fully vest during the period in which
any obligation arising from financial assistance provided
to that TARP recipient remains outstanding;
‘‘(II) has a value in an amount that is not greater
than 1⁄3 of the total amount of annual compensation
of the employee receiving the stock; and
‘‘(III) is subject to such other terms and conditions
as the Secretary may determine is in the public
interest.
‘‘(ii) The prohibition required under clause (i) shall
apply as follows:
‘‘(I) For any financial institution that received
financial assistance provided under the TARP equal
to less than $25,000,000, the prohibition shall apply
only to the most highly compensated employee of the
financial institution.
‘‘(II) For any financial institution that received
financial assistance provided under the TARP equal
to at least $25,000,000, but less than $250,000,000,
the prohibition shall apply to at least the 5 most highlycompensated
employees of the financial institution, or
such higher number as the Secretary may determine
is in the public interest with respect to any TARP
recipient.
‘‘(III) For any financial institution that received
financial assistance provided under the TARP equal
to at least$250,000,000, but less than $500,000,000,
the prohibition shall apply to the senior executive officers
and at least the 10 next most highly-compensated
employees, or such higher number as the Secretary
may determine is in the public interest with respect
to any TARP recipient.
‘‘(IV) For any financial institution that received
financial assistance provided under the TARP equal
to $500,000,000 or more, the prohibition shall apply
to the senior executive officers and at least the 20
next most highly-compensated employees, or such
higher number as the Secretary may determine is in
the public interest with respect to any TARP recipient.
‘‘(iii) The prohibition required under clause (i) shall
not be construed to prohibit any bonus payment required
to be paid pursuant to a written employment contract
executed on or before February 11, 2009, as such valid
employment contracts are determined by the Secretary or
the designee of the Secretary.
‘‘(E) A prohibition on any compensation plan that would
encourage manipulation of the reported earnings of such
H. R. 1—405
TARP recipient to enhance the compensation of any of
its employees.
‘‘(F) A requirement for the establishment of a Board
Compensation Committee that meets the requirements of
subsection (c).
‘‘(4) CERTIFICATION OF COMPLIANCE.—The chief executive
officer and chief financial officer (or the equivalents thereof)
of each TARP recipient shall provide a written certification
of compliance by the TARP recipient with the requirements
of this section—
‘‘(A) in the case of a TARP recipient, the securities
of which are publicly traded, to the Securities and Exchange
Commission, together with annual filings required under
the securities laws; and
‘‘(B) in the case of a TARP recipient that is not a
publicly traded company, to the Secretary.
‘‘(c) BOARD COMPENSATION COMMITTEE.—
‘‘(1) ESTABLISHMENT OF BOARD REQUIRED.—Each TARP
recipient shall establish a Board Compensation Committee,
comprised entirely of independent directors, for the purpose
of reviewing employee compensation plans.
‘‘(2) MEETINGS.—The Board Compensation Committee of
each TARP recipient shall meet at least semiannually to discuss
and evaluate employee compensation plans in light of an assessment
of any risk posed to the TARP recipient from such plans.
‘‘(3) COMPLIANCE BY NON-SEC REGISTRANTS.—In the case
of any TARP recipient, the common or preferred stock of which
is not registered pursuant to the Securities Exchange Act of
1934, and that has received $25,000,000 or less of TARP assistance,
the duties of the Board Compensation Committee under
this subsection shall be carried out by the board of directors
of such TARP recipient.
‘‘(d) LIMITATION ON LUXURY EXPENDITURES.—The board of
directors of any TARP recipient shall have in place a companywide
policy regarding excessive or luxury expenditures, as identified
by the Secretary, which may include excessive expenditures on—
‘‘(1) entertainment or events;
‘‘(2) office and facility renovations;
‘‘(3) aviation or other transportation services; or
‘‘(4) other activities or events that are not reasonable
expenditures for staff development, reasonable performance
incentives, or other similar measures conducted in the normal
course of the business operations of the TARP recipient.
‘‘(e) SHAREHOLDER APPROVAL OF EXECUTIVE COMPENSATION.—
‘‘(1) ANNUAL SHAREHOLDER APPROVAL OF EXECUTIVE COMPENSATION.—
Any proxy or consent or authorization for an
annual or other meeting of the shareholders of any TARP
recipient during the period in which any obligation arising
from financial assistance provided under the TARP remains
outstanding shall permit a separate shareholder vote to approve
the compensation of executives, as disclosed pursuant to the
compensation disclosure rules of the Commission (which disclosure
shall include the compensation discussion and analysis,
the compensation tables, and any related material).
‘‘(2) NONBINDING VOTE.—A shareholder vote described in
paragraph (1) shall not be binding on the board of directors
of a TARP recipient, and may not be construed as overruling
H. R. 1—406
a decision by such board, nor to create or imply any additional
fiduciary duty by such board, nor shall such vote be construed
to restrict or limit the ability of shareholders to make proposals
for inclusion in proxy materials related to executive compensation.
‘‘(3) DEADLINE FOR RULEMAKING.—Not later than 1 year
after the date of enactment of the American Recovery and
Reinvestment Act of 2009, the Commission shall issue any
final rules and regulations required by this subsection.
‘‘(f) REVIEW OF PRIOR PAYMENTS TO EXECUTIVES.—
‘‘(1) IN GENERAL.—The Secretary shall review bonuses,
retention awards, and other compensation paid to the senior
executive officers and the next 20 most highly-compensated
employees of each entity receiving TARP assistance before the
date of enactment of the American Recovery and Reinvestment
Act of 2009, to determine whether any such payments were
inconsistent with the purposes of this section or the TARP
or were otherwise contrary to the public interest.
‘‘(2) NEGOTIATIONS FOR REIMBURSEMENT.—If the Secretary
makes a determination described in paragraph (1), the Secretary
shall seek to negotiate with the TARP recipient and
the subject employee for appropriate reimbursements to the
Federal Government with respect to compensation or bonuses.
‘‘(g) NO IMPEDIMENT TO WITHDRAWAL BY TARP RECIPIENTS.—
Subject to consultation with the appropriate Federal banking agency
(as that term is defined in section 3 of the Federal Deposit Insurance
Act), if any, the Secretary shall permit a TARP recipient to repay
any assistance previously provided under the TARP to such financial
institution, without regard to whether the financial institution
has replaced such funds from any other source or to any waiting
period, and when such assistance is repaid, the Secretary shall
liquidate warrants associated with such assistance at the current
market price.
‘‘(h) REGULATIONS.—The Secretary shall promulgate regulations
to implement this section.’’.