Federal Financial Agencies Propose New Regulations on Executive Compensation: Here Is What You Need to Know

Federal Financial Agencies Propose New Regulations on Executive Compensation: Here Is What You Need to Know May 19, 2016

Winston & Strawn conducts an annual webinar series to assist Financial Institution directors in understanding issues, regulatory requirements, investor priorities and market realities. This series complements our weekly Financial Services Update which is designed to provide quick, readable, and ongoing information about what Congress, regulators, courts and competitors are doing. If you wish to sign up to receive the Update, please visit winston.com/subscribe 2

This is the final webinar in a series of five Director Training Sessions. The first addressed regulatory expectations. The second highlighted issues with the upcoming 2016 proxy season. The third highlighted important issues in securities class actions and derivative litigation, criminal enforcement, and D&O liability insurance. The fourth featured a panel of financial institution directors discussing fiduciary responsibilities and key challenges in today s environment. Please see here for a copy of the presentations and a link to the audio recordings from the prior presentations. This session will examine the recently proposed rules on executive compensation for federally regulated financial institutions. At the conclusion of the course, we will provide each participant in these webinars with a Certificate of Completion, certifying the Director has participated in Continuing Director Education courses. 3

Christine Edwards Chair of Winston & Strawn s bank regulatory practice Nationally recognized expert on corporate governance Over 30 years of financial services regulatory experience Julius ( Jerry ) Loeser Of Counsel in Winston & Strawn s bank regulatory practice 45 years of bank regulatory experience Former Federal Reserve Board lawyer, chief regulatory counsel at Wells Fargo & Co., and Deputy General Counsel at Comerica Bank 4

Michael Melbinger Partner in Winston & Strawn s employee benefits and executive compensation practice Author of two books: Executive Compensation (Commerce Clearing House, 2004) and the ABA s Compliance Guide to Employee Benefit Trusts (American Bankers Association, 1997). He is also a contributing editor of CompensationStandards.com, for which he writes the popular Executive Compensation Blog. 5

Incentive Compensation for Financial Institutions Six Agencies voted to approve substantially similar versions of a new proposed rule under Section 956 of the Dodd-Frank Wall Street Reform and Consumer Protection Act since April 20, 2016 1. Federal Deposit Insurance Corporation ( FDIC ) 2. Securities and Exchange Commission ( SEC ) 3. Office of the Comptroller of the Currency ( OCC ) 4. Board of Governors of the Federal Reserve ( Federal Reserve Board ), 5. National Credit Union Administration ( NCUA ) 6. Federal Housing Finance Agency ( FHFA ) Except as discussed below, the only differences relate to the different types of institutions they regulate. 6

Incentive Compensation for Financial Institutions Comments due by July 22, 2016. Proposed Compliance Date for the new rules would be the beginning of the first calendar quarter that begins at least 540 days after a final rule is published in the Federal Register. Seems like 2019 or later would be likely. Proposed Rule would not apply to any incentive-based compensation plan with a performance period that begins before the compliance date. 7

General Overview 1. Definition of Incentive Compensation 2. Deferral, Forfeiture and Downward Adjustment, and Clawback Requirements 3. Definition of Covered Persons 4. The Policies and Procedures that a Level 1 or Level 2 Covered Institution Must Establish 5. New Requirements and Prohibitions Applicable to Incentive-Based Compensation at All Covered Institutions 6. Disclosure and Recordkeeping Requirements Applicable to Level 1 and Level 2 Covered Institutions 8

General Overview

Proposed Rule The Proposed Rule creates a series of new definitions many of which do not match with compensation professionals common understanding of the meaning of those terms. This overview will endeavor to incorporate these new definitions in the sections where they are most relevant. 10

General Overview Covered Institutions Proposed Rule identifies three categories of Covered Institutions based on average total consolidated assets: Level 1 Covered Institutions (greater than or equal to $250 billion); Level 2 Covered Institutions (greater than or equal to $50 billion and less than $250 billion); and Level 3 Covered Institutions (greater than or equal to $1 billion and less than $50 billion). Less prescriptive requirements for smaller Covered Institutions and progressively more rigorous requirements for larger Covered Institutions. 11

General Overview Covered Institutions Average total consolidated assets generally determined by referring to reports filed with the applicable regulators. Covered Institutions that are subsidiaries of other covered institutions generally take on the level of their top-tier parent. The OCC or Fed may require a Level 3 covered institution with average total consolidated assets greater than or equal to $10 billion and less than $50 billion to comply with some or all of the deferral, forfeiture, downward adjustment, and clawback provisions that apply to Level 1 and 2 institutions, if it determines that the Level 3 covered institution s complexity of operations or compensation practices are consistent with those of a Level 1 or Level 2 covered institution. 12

General Overview Covered Institutions SEC s Proposed Rule adds that the average total consolidated assets for a regulated institution that is an investment adviser means the regulated institution s total assets (exclusive of non-proprietary assets) shown on the balance sheet for the regulated institution for the most recent fiscal year end. 13

Definition of Incentive-Based Compensation

Definition of Incentive-Based Compensation The Proposed Rule generally only applies to Incentive-Based Compensation Defined as, any variable compensation, fees, or benefits that serve as an incentive or reward for performance. Intentionally broad definition to capture all forms of compensation. Compensation earned under incentive plans, annual bonuses, and discretionary awards are all examples of compensation that could be Incentive-Based Compensation. The form of payment, whether cash, an equity-like instrument, or any other thing of value, is irrelevant. 15

Definition of Incentive-Based Compensation The Proposed Rule defines equity-like instrument as: equity in the Covered Institution (or an affiliate), or a form of compensation (A) payable at least in part based on the price of the shares or other equity instruments of the Covered Institution (or an affiliate) or (B) that requires, or may require, settlement in the shares of the Covered Institution (or an affiliate). Time-based equity awards are included in definition The Proposed Rule s provisions relating to equity compensation would not apply to a Covered Institution that does not itself issue equity, and is not an affiliate of an institution that issues equity, e.g., a mutual organization. 16

Definition of Incentive-Based Compensation The Rule provides a short list of types of compensation, benefits, and payments that are specifically excluded from the definition of Incentive-Based Compensation: compensation, fees, and benefits that are paid for reasons other than to induce performance, for example, compensation, fees, or benefits that are awarded solely for, and solely tied to, continued employment (e.g., salary or a retention award that is conditioned solely on continued employment), signing or hiring bonuses that are not conditioned on performance achievement, a compensation arrangement that provides payments solely for achieving or maintaining a professional certification or higher level of educational achievement, compensation determined based solely on the Covered Person s fixed compensation, which does not vary based on performance measures (including employer contributions to a 401(k) plan computed based on a percentage of salary, and dividends paid and appreciation realized on stock or other equity-like instruments that are owned outright by a Covered Person. 17

Incentive-Based Compensation Arrangement, Plan, or Program The Proposed Rule gives a separate definition for each of the following terms describing how Covered Institutions provide Incentive-Based Compensation: Long-Term Incentive Plan, Incentive-Based Compensation Plan, Incentive-Based Compensation Program, Incentive-Based Compensation Arrangement, and Qualifying Incentive-Based Compensation. 18

Incentive-Based Compensation Long-Term Incentive Plan is an Incentive-Based Compensation Plan that is based on a Performance Period of at least three years. Performance Period is the period during which the performance of a Covered Person is assessed for purposes of determining Incentive-Based Compensation. Qualifying Incentive-Based Compensation is Incentive-Based Compensation Awarded to a Covered Person for a Performance Period of less than three years. With the exception of Long-Term Incentive Plans, all forms of compensation, fees, and benefits that qualify as Incentive-Based Compensation, including annual bonuses, would be included in the amount of Qualifying Incentive-Based Compensation. The Deferral, Forfeiture, Downward Adjustment, and Clawback Requirements apply to Qualifying Incentive-Based Compensation Awarded to a Senior Executive Officer or Significant Risk-Taker at a Level 1 or Level 2 Covered Institution. 19

Incentive-Based Compensation An Incentive-Based Compensation Program is a Covered Institution s overall framework for Incentive-Based Compensation. A Covered Institution s Incentive-Based Compensation Program would include all of the Covered Institution s Incentive-Based Compensation Arrangements and Incentive- Based Compensation Plans. Generally, the Incentive-Based Compensation Program would govern Incentive- Based Compensation practices and establish related controls. An Incentive-Based Compensation Plan is a document setting forth terms and conditions governing the Incentive-Based Compensation payments. Most Covered Persons would be compensated under more than one Incentive- Based Compensation Plan. An Incentive-Based Compensation Arrangement is an agreement between a Covered Institution and a Covered Person under which the Covered Institution provides Incentive-Based Compensation to the Covered Person. An individual employment agreement would be an Incentive-Based Compensation Arrangement. 20

Deferral, Forfeiture, and Downward Adjustment, and Clawback Requirements

Deferral, Forfeiture, Downward Adjustment, and Clawback Requirements The Proposed Rule would require that Incentive-Based Compensation Arrangements for Covered Persons at a Level 1 or Level 2 Covered Institution include: 1. Deferral of payments, 2. Risk of Downward Adjustment and/or Forfeiture, and 3. Clawback requirements. Different from Dodd-Frank Act 954 Clawback provision 22

Deferral Requirement The Proposed Rule defines Deferral as the delay of Vesting of Incentive- Based Compensation beyond the date on which the Incentive-Based Compensation is Awarded Different than the commonly understood meaning of Deferral Vesting does not occur at the end of the Performance Period (or timebased period). The end of the Performance Period (or time-based period) is when the Incentive-Based Compensation is Awarded Vesting only occurs after (or during) the Deferral Period. 23

Deferral Requirement The time period between the Award and Vesting is known as the Deferral Period. The Deferral Period will be between 1 4 years depending on Level of the Institution, and the type of Incentive-Based Compensation. Vesting means the transfer of ownership of the Incentive- Based Compensation to the Covered Person, such that the Covered Person s right to the Incentive-Based Compensation is no longer contingent on the occurrence of any event. 24

Deferral Requirement Long-Term Incentive Institution grants 10,000 performance shares to Executive on January 1, 2018, with a 3-year performance period (a Long-Term Incentive) ending December 31, 2020. On December 31, 2020, the end of the three-year Performance Period, the 10,000 shares would be deemed Awarded (assuming performance targets were achieved). Only on December 31, 2020 does the Deferral Period begin for the 10,000 shares. 25

Deferral Requirement Long-Term Incentive Deferral Period Level 1 Covered Institution: 60% of Senior Executive s Awarded shares are subject to Deferral Period of 2 years 50% of Significant Risk Taker s Awarded shares are subject to Deferral Period of 2 years Level 2 Covered Institution: 50% of Senior Executive s Awarded shares are subject to Deferral Period of 1 year 40% of Significant Risk Taker s Awarded shares are subject to Deferral Period of 1 year 26

Long-Term Incentive: Deferral Period During the Deferral Period, shares can vest annually on a pro rata basis. 10,000 share grant to Executive E on January 1, 2018 (assuming performance goals achieved): Senior Executive at Level 1 Covered Institution 4,000 shares vested and distributed on December 31, 2020 3,000 shares vested and distributed on December 31, 2021 3,000 shares vested and distributed on December 31, 2022 And each set of shares will remain subject to a Clawback for 7 years after Vesting and distribution until December 31, 2029, for the last 2,000 shares. 27

Deferral Period: Vesting and Other Rules Vesting could occur annually, on a pro rata basis, throughout Deferral Period. Vesting could occur at a slower than pro rata schedule, such as entirely at the end of Deferral Period (e.g., cliff vesting ). The deferred amount would be required to consist of substantial amounts of both cash and equity-like instruments. (Proposed Rule does not quantify define substantial ). The amount of stock options used to meet the minimum required deferred compensation may not exceed 15% of the amount of total incentive-based compensation awarded for the Performance Period. Covered Institution must evaluate information that arises over the Deferral Period about financial losses, inappropriate risks taken, compliance deficiencies, or other measures or aspects of financial and non-financial performance of the Covered Person at the time of vesting to determine if the amount that has been deferred should vest in full or should be reduced through forfeiture. 28

Deferral Requirement Qualifying Incentive-Based Compensation Executive entitled to annual bonus of 100% of base salary for 2018 ($800,000 salary). On December 31, 2018 (end of the one-year Performance Period), Executive earns $800,000 cash bonus (assuming performance goals achieved). On December 31, 2018, Deferral Period begin for the $800,000 bonus. 29

Deferral Requirement Qualifying Incentive-Based Compensation Deferral Period Level 1 Covered Institution: 60% of Senior Executive s bonus is subject to Deferral Period of 4 years 50% of Significant Risk Taker s bonus is subject to Deferral Period of 4 years Level 2 Covered Institution: 50% of Senior Executive s bonus is subject to Deferral Period of 3 years 40% of Significant Risk Taker s bonus is subject to Deferral Period of 3 years 30

Long-Term Incentive: Deferral Period Senior Executive at Level 1 Covered Institution $480,000 cash paid out shortly after December 31, 2018 $320,000 cash paid out shortly after December 31, 2022 or $80,000 after each of December 31, 2019, 2020, 2021 and 2022 During the Deferral Period, bonus can vest annually on a pro rata basis. Each cash payout will remain subject to a Clawback for 7 years after payout until December 31, 2029, for the last $80,000. 31

Forfeiture During the Deferral Period, a Level 1 or Level 2 Covered Institution must review and consider Forfeiture of Incentive-Based Compensation that has not Vested. Poor financial performance attributable to a significant deviation from the Covered Institution s risk parameters set forth in its policies and procedures; A Covered Institution will have to establish clearly ascertainable risk parameters, if it has not done so already; Inappropriate risk-taking, regardless of the impact on financial performance; Material risk management or control failures; Non-compliance with statutory, regulatory, or supervisory standards resulting in enforcement or legal action brought by a federal or state regulator or agency; A requirement that the Covered Institution report a restatement of a financial statement to correct a material error; or Other aspects of conduct or poor performance as defined by the Covered Institution. 32

Downward Adjustment During the Performance Period, a Level 1 or Level 2 Covered Institution must review and consider Downward Adjustment of Incentive-Based Compensation that has not been Awarded. Poor financial performance attributable to a significant deviation from the Covered Institution s risk parameters set forth in its policies and procedures; A Covered Institution will have to establish clearly ascertainable risk parameters, if it has not done so already; Inappropriate risk-taking, regardless of the impact on financial performance; Material risk management or control failures; Non-compliance with statutory, regulatory, or supervisory standards resulting in enforcement or legal action brought by a federal or state regulator or agency; A requirement that the Covered Institution report a restatement of a financial statement to correct a material error; or Other aspects of conduct or poor performance as defined by the Covered Institution. 33

Forfeiture and Downward Adjustment Forfeiture applies during Performance Period and Deferral Period; that is, not just to the deferred percentages. Downward Adjustment applies only during the Deferral Period. Downward Adjustment is distinct from an ordinary performance-based adjustment that a Covered Institution might make in determining the amount of Incentive-Based Compensation to Award to a Covered Person. Clawback only applies to Incentive-Based Compensation that has Vested 34

Forfeiture and Downward Adjustment A Covered Institution could provide for an upward adjustment of deferred qualifying incentive-based compensation or long-term incentive to the extent of: an increase in value attributable solely to a change in share value, a change in interest rates, or the payment of interest according to terms set out at the time of the award. 35

Clawback Level 1 or Level 2 Covered Institution must include clawback provisions in incentive-based compensation arrangements of Senior Executive Officer or Significant Risk-Taker that would allow it to recover Incentive- Based Compensation (including after employment termination) for seven years following the date on which such compensation Vests. Must apply if the Covered Institution determines that the Senior Executive Officer or Significant Risk-Taker engaged in: Fraud (with or without harm to the Covered Institution), Misconduct that resulted in significant financial or reputational harm to the Covered Institution, or Intentional misrepresentation of information used to determine the Senior Executive Officer or Significant Risk-Taker s Incentive-Based Compensation. 36

Clawback Level 1 or Level 2 Covered Institution must develop and implement policies and procedures for its incentive-based compensation program that: Specify the substantive and procedural criteria for the application of forfeiture and Clawback, including the process for determining the amount of incentivebased compensation to be clawed back; Require that the Covered Institution maintain documentation of final forfeiture, downward adjustment, and Clawback decisions; Ensure appropriate roles for risk management, risk oversight, and other control function personnel in the covered institution s processes for designing Incentive- Based Compensation arrangements and determining awards, forfeiture, downward adjustment, Clawback, and vesting; 37

Clawback 100% of Incentive-Based Compensation subject to Clawback Clawback requirement would not apply to Incentive-Based Compensation plans and arrangements in place at the time the Proposed Rule is final because those plans and arrangements would be grandfathered (as with other provisions in the Proposed Rule). Regulator can claw back if the Institution does not The 2011 Proposed Rule did not include a clawback requirement. 38

Other Prohibitions, Restrictions and Limitations Prohibition on Hedging: The Proposed Rule would prohibit all Covered Persons at a Level 1 or Level 2 Covered Institution not just Senior Executive Officers and Significant Risk-Takers from purchasing hedging instruments or similar instruments to hedge or offset any decrease in the value of the Covered Person s Incentive-Based Compensation. 39

Other Limitations - Maximum Incentive-Based Compensation Opportunity ( Leveraging ) The Proposed Rule would limit the amount of actual Incentive-Based Compensation Awarded to a Senior Executive Officer or Significant Risk-Taker at a Level 1 or Level 2 Covered Institution, that could exceed the target amounts for performance measure goals established at the beginning of the Performance Period to 125% of the target amount for a Senior Executive Officer and 150% of the target amount for a Significant Risk-Taker. These limitations would apply on a plan-by-plan basis, and would apply to Long-Term Incentive Plans separately from other Incentive-Based Compensation Plans. 40

Limitations on Relative Performance Measures Proposed Rule would prohibited a Level 1 or Level 2 Covered Institution from using Incentive-Based Compensation performance measures for any Covered Person based solely on industry peer performance comparisons. A Covered Institution would be permitted to use relative performance measures in combination with absolute performance measures. 41

Limitations on Volume-Driven Incentive-Based Compensation The Proposed Rule would prohibit a Level 1 or Level 2 Covered Institution from providing Incentive-Based Compensation to any Covered Person that is based solely on transaction or revenue volume without regard to transaction quality or the compliance of the Covered Person with sound risk management. A Covered Institution could use transaction or revenue volume as a factor in Incentive-Based Compensation arrangements, but only in combination with other factors designed to cause Covered Persons to account for the risks of their activities. 42

Covered Persons

Covered Person The Proposed Rule defines Covered Person as any Senior Executive Officer, Significant Risk-Taker, executive officer, employee, director, or principal shareholder who receives Incentive-Based Compensation at a Covered Institution, with the most significant limitations and prohibitions applicable to Senior Executive Officers and Significant Risk-Takers. 44

Senior Executive Officer Senior Executive Officer is a Covered Person who holds the title or, without regard to title, salary, or compensation, performs the function of one or more of the following positions at a Covered Institution for any period of time in the relevant Performance Period: president, chief executive officer (CEO), executive chairman, chief operating officer, chief financial officer, chief investment officer, chief legal officer, chief risk officer, chief compliance officer, chief audit executive, chief credit officer, chief accounting officer, or head of a major business line or control function. A Senior Executive Officer employed by one entity, but performing the function of one or more of the foregoing positions at a Covered Institution, will be a Senior Executive Office at each of the entities. 45

Significant Risk-Taker The definition of Significant Risk-Taker is intended to include individuals who are not Senior Executive Officers but are in the position to put a Level 1 or Level 2 Covered Institution at risk of material financial loss. The Proposed Rule does not include a provision like that in the 2011 proposed rules that would apply the limitations and restrictions to groups of persons who could create risk. However, the Agencies have asked for comment on whether to cover such groups. Only a Covered Person who receives annual base salary and Incentive- Based Compensation of which at least one-third is Incentive-Based Compensation (the One-Third Threshold ), may be characterized as a Significant Risk-Taker. 46

Significant Risk-Taker The One-Third Threshold is based on the Covered Person s annual base salary paid and Incentive-Based Compensation Awarded during the last calendar year that ended at least 180 days before the beginning of the Performance Period for which Significant Risk-Takers are being identified. [Note, this will not be the most recently completed year] Incentive-Based Compensation Awarded in a particular calendar year would include any Incentive-Based Compensation Awarded with respect to a Performance Period that ended during that calendar year 47

Significant Risk-Taker A Covered Person who is above the One-Third Threshold would be a Significant Risk-Taker under the Proposed Rule only if he or she meets either: (i) (ii) the relative compensation test or the exposure test. 48

Significant Risk-Taker - Relative Compensation Test Relative Compensation Test The relative compensation test would require a Covered Institution to determine which Covered Persons received the highest annual base salary and Incentive-Based Compensation among all individuals receiving Incentive-Based Compensation from the Covered Institution and any affiliates. 49

Significant Risk-Taker - Relative Compensation Test Relative Compensation Test For a Level 1 or Level 2 Covered Institution, a Covered Person would be a Significant Risk-Taker if the person receives annual base salary and Incentive-Based Compensation for the last calendar year that ended at least 180 days before the beginning of the Performance Periods (which will not be the most recently completed year) that places the person among the highest 5% for Level 1 Covered Institutions, or 2% for Level 2 Covered Institutions, of all Covered Persons in salary and Incentive- Based Compensation (excluding Senior Executive Officers) of the Covered Institution and any affiliates of the Covered Institution. The calculation would not include fringe benefits such as the value of medical insurance or the use of a company car. 50

Significant Risk-Taker Exposure Test Under the exposure test, a Covered Person would be a Significant Risk- Taker with regard to a Covered Institution if the individual may commit or expose 0.5% or more of the common equity tier 1 capital of the Covered Institution (or any affiliates of the Covered Institution regardless of whether the individual is employed by that affiliate) to risk of loss due to market risk or credit risk. In the case of a registered securities broker or dealer, 0.5% or more of the tentative net capital. For depository institution holding companies, foreign banking organizations, and affiliates of those institutions that do not report common equity tier 1 capital, the Federal Reserve board or other regulator Board would work with the covered institutions to determine the appropriate measure of capital. The exposure test does not relate to the ability of a Covered Person to expose a Covered Institution to other types of risk, such as compliance risk. 51

Significant Risk-Taker The exposure test would be measured on an annual basis. The measure of capital would relate to a Covered Person s authority over the course of the most recent calendar year, in the aggregate, and would be based on the maximum amount that the person has authority to commit or expose during the year. For example, a Covered Institution might allocate $10 million to a particular Covered Person as an authorized level of lending for a calendar year, in which case the Covered Person s authority to commit or expose would be $10 million. The exposure test would also include each individual who is a voting member of a committee that has the decision-making authority to commit or expose 0.5% or more of the capital of a Covered Institution (or an affiliate). 52

Significant Risk-Taker The Proposed Rule would allow Covered Institutions or the Agencies the flexibility to designate additional persons as Significant Risk-Takers. Each Agency would use its own procedures for making such a designation. Such procedures generally would include reasonable advance written notice of the proposed action, including a description of the basis for the proposed action and an opportunity for the Covered Person and Covered Institution to respond. 53

Policies and Procedures that Level 1 and 2 Covered Institutions Must Establish

Policies and Procedures in General The Proposed Rule would require all Level 1 and Level 2 Covered Institutions to have policies and procedures that are consistent with the requirements and prohibitions of the Proposed Rule and, among other requirements: 1. Specify the substantive and procedural criteria for the acceleration of payments of Deferred Incentive-Based Compensation to a Covered Person; 2. Specify the substantive and procedural requirements of the independent compliance program; 3. Identify and describe the role of any employees, committees, or groups authorized to make Incentive-Based Compensation decisions, including when discretion is authorized; 4. Require that the Covered Institution maintain documentation of its processes for the establishment, implementation, modification, and monitoring of Incentive-Based Compensation arrangements; 5. Describe how discretion is exercised to achieve balance; 55

Policies and Procedures in General 6. Describe how Incentive-Based Compensation arrangements will be monitored; 7. Ensure appropriate roles for risk management, risk oversight, and other control personnel in the Covered Institution s processes for designing Incentive-Based Compensation arrangements and determining awards, Deferral amounts, Deferral Periods, Forfeiture, Downward Adjustment, Clawback, and Vesting and assessing the effectiveness of Incentive- Based Compensation arrangements in restraining inappropriate risktaking; 8. Specify the substantive and procedural criteria for Forfeiture and Clawback; and 9. Document final Forfeiture, Downward Adjustment, and Clawback decisions. 56

Risk Management and Controls The Proposed Rule would require all Level 1 and Level 2 Covered Institutions to have a risk management framework for their Incentive- Based Compensation Programs that is: independent of any lines of business; includes an independent compliance program that provides for internal controls, testing, monitoring, and training with written policies and procedures; and is commensurate with the size and complexity of the Covered Institution s operations. 57

Risk Management and Controls The Proposed Rule would require all Level 1 and Level 2 Covered Institutions to: Provide individuals in control functions with appropriate authority to influence the risk-taking of the business areas they monitor and ensure Covered Persons engaged in control functions are compensated independently of the performance of the business areas they monitor; and Provide for independent monitoring of: Incentive-Based Compensation Plans to identify whether the plans appropriately balance risk and reward; events related to Forfeiture and Downward Adjustment and decisions of Forfeiture and Downward Adjustment reviews to determine consistency with the Proposed Rule; and compliance of the Incentive-Based Compensation Program with the Covered Institution s policies and procedures. 58

Board of Directors Requirements The Proposed Rule would require the Board of Directors of a Level 1 or Level 2 Covered Institution (or a Committee thereof) to: Conduct oversight of the Covered Institution s Incentive-Based Compensation Program; Approve Incentive-Based Compensation Arrangements for Senior Executive Officers, including amounts of awards and, at the time of Vesting, payouts under such arrangements; and Approve material exceptions or adjustments to Incentive-Based Compensation policies or arrangements for Senior Executive Officers. 59

Board of Directors Compensation Committee Requirements The Proposed Rule would impose the following requirements on the compensation committee of each Level 1 and Level 2 Covered Institution: The committee must be composed solely of directors who are not Senior Executive Officers to assist the board of directors in carrying out its responsibilities under the Proposed Rule. The committee must obtain input from the Covered Institution s (i) risk and audit committees (or groups performing similar functions) and (ii) risk management function on the effectiveness of risk measures and adjustments used to balance Incentive-Based Compensation Arrangements. 60

Board of Directors Compensation Committee Requirements The committee must obtain (i) a written assessment from management, on an annual or more frequent basis, and (ii) an independent written assessment from the Covered Institution s internal audit or risk management function, of the effectiveness of the Covered Institution s Incentive-Based Compensation Program and related compliance and control processes in providing risk-taking incentives that are consistent with the risk profile of the Covered Institution. 61

New Requirements and Prohibitions Applicable to Incentive-Based Compensation at All Covered Institutions

New Requirements and Prohibitions Consistent with Section 956(b), the Proposed Rule begins with a broad, general prohibition against Incentive-Based Compensation Arrangements that encourage inappropriate risk by providing Covered Persons with excessive compensation, fees, or benefits or that could lead to material financial loss to the Covered Institution. 63

New Requirements and Prohibitions Excessive: Compensation, fees, and benefits will be considered excessive when amounts paid are unreasonable or disproportionate to the value of the services performed by a Covered Person, taking into consideration all relevant factors, including: The combined value of all compensation, fees, or benefits provided to a Covered Person; The compensation history of the Covered Person and other individuals with comparable expertise at the Covered Institution; The financial condition of the Covered Institution; Compensation practices at comparable institutions, based upon such factors as asset size, geographic location, and the complexity of the Covered Institution s operations and assets; For post-employment benefits, the projected total cost and benefit to the Covered Institution; and Any connection between the Covered Person and any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the Covered Institution. 64

New Requirements and Prohibitions Encourage Inappropriate Risks: An Incentive-Based Compensation Arrangement will be considered to encourage inappropriate risks that could lead to material financial loss to the Covered Institution, unless the arrangement: Is supported by effective governance, Is compatible with effective risk management and controls, and Appropriately balances risk and reward. 65

New Requirements and Prohibitions An Incentive-Based Compensation Arrangement would not be considered to appropriately balance risk and reward unless it: Includes financial and non-financial measures of performance,, including considerations of risk-taking, which are (i) relevant to the Covered Person s role within the Covered Institution and the type of business in which the Covered Person is engaged and (ii) appropriately weighted to reflect risk-taking; Is designed to allow non-financial measures of performance to override financial measures of performance, when appropriate in determining incentive-based compensation; and Is subject to adjustment to reflect actual losses, inappropriate risks taken, compliance deficiencies, or other measures or aspects of financial and nonfinancial performance. 66

New Requirements and Prohibitions An example under the Proposed Rule of a feature that could encourage inappropriate risks that could lead to material financial loss would be the use of performance measures that are closely tied to short-term revenue or profit of business generated by a Covered Person, without any adjustments for the longer-term risks associated with the business generated. Similarly, if there is no mechanism for factoring risk outcomes over a longer period of time into compensation decisions, individuals who have Incentive-Based Compensation Plans with Performance Periods that end at the end of the calendar year, could have an incentive to take large risks towards the end of the calendar year to either make up for underperformance earlier in the Performance Period or to maximize their year-end profits. The Proposed Rule also cautions against performance measures that can be manipulated inappropriately by the Covered Persons receiving Incentive-Based Compensation. 67

Disclosure and Recordkeeping Requirements

Disclosure and Recordkeeping Requirements All Covered Institutions would be required to (a) create annually and (b) maintain for at least seven years, records that (i) document the structure of Incentive-Based Compensation arrangements and (ii) demonstrate compliance with the Proposed Rule (in lieu of the annual reporting requirement contained in the 2011 Proposed Rule). The records would be required to be disclosed to the Covered Institution s appropriate Federal regulator only upon request. 69

Disclosure and Recordkeeping Requirements Level 1 and Level 2 Covered Institutions annually must create and maintain, for at least seven years, records that document: the Covered Institution s Senior Executive Officers and Significant Risk-Takers, listed by legal entity, job function, organizational hierarchy, and line of business; the Incentive-Based Compensation Arrangements for Senior Executive Officers and Significant Risk-Takers, including information on (i) the percentage of Incentive-Based Compensation Deferred and (ii) form of award; any Forfeiture and Downward Adjustment or Clawback reviews and decisions for Senior Executive Officers and Significant Risk-Takers; and any material changes to the Covered Institution s Incentive-Based Compensation Arrangements and policies. 70

Disclosure and Recordkeeping Requirements Level 1 and Level 2 Covered Institutions would be required to create and maintain records in a manner that would allow for an independent audit of Incentive-Based Compensation Arrangements, policies, and procedures, and to provide the records described above in such form and frequency as the appropriate Federal regulator requests. 71

General Overview Covered Institutions Any bank and any company that controls a bank is covered, whether the company owning the bank is an insurance company or a holding company, or it holds a federal savings bank (which would make it an SLHC) or a commercial bank (which would make it a BHC). FNMA and Freddie Mac, credit unions, investment advisers, and securities brokerdealers with assets of $1 billion or more are also covered. For Covered Institutions that are subsidiaries of other Covered Institutions, levels would generally be determined by reference to the average total consolidated assets of the top-tier parent Covered Institution. In the case of SFMAIC, this suggests that State Farm Bank may be considered a Level 1 or Level 2 Covered Institution even though, standing alone, it would be considered a Level 3 Covered Institution. 72

Questions? Christine Edwards Chair Bank Regulatory Practice Chicago cedwards@winston.com Jerry Loeser Bank Regulatory Practice Chicago jloeser@winston.com Michael Melbinger Employee Benefits & Executive Compensation Practice Chicago mmelbinger@winston.com 73