The skill of designing a pay-off
Take some of the best-known, and best-rewarded figures in US business - Lou Gerstner, Larry Bossidy, James Dimon - and chances are that Joseph Bachelder negotiated their pay for them. Eager to persuade company boards not only to pay them millions, but promise millions more when they leave, many top executives turn to the veteran lawyer. As he chats from behind his owlish spectacles in his Manhattan office, it is difficult at first to see why the heads of company compensation committees find the 71-year-old Mr Bachelder such a tough adversary. He jokes about the rewards his efforts bring him: “I do pro bono work for the wealthy.” But as he steadily builds the case for his clients’ remuneration packages, the steel behind the civility becomes evident. Why, to begin with, do company leaders earn so much? “Consider this. An asset manager will get 1 per cent of the assets under his management. A hedge fund manager will make even more than that. Now take, for example, a very well paid chief executive officer such as Sandy Weill, who I think last year made about $53m. That’s a lot of money. But it is two one-hundredths of 1 per cent of the market value of Citigroup. You could have 50 Sandy Weills for one asset manager.” The median cash pay - salary and bonus - of the chief executives of the top 1,000 US companies last year was $1.4m, he says. The median market value of those companies was $2bn. The average chief executive earned 0.07 per cent of what the company was worth. “The problem with our viewing of CEO pay in this country, and I think it’s true in the UK as well, is we’re driven by ‘outliers’. Someone earns over $100m, that’s what makes the headlines. The fact that many CEOs are quite properly paid does not sell newspapers. Nor does it help for a politician in a speech to say that CEOs are properly paid.” We should put some of those exceptional CEOs in perspective too, he says. During his 20 years as head of General Electric, Jack Welch’s total compensation was about $1bn. “And he had an apartment in New York that they provided him, and he had use of a private plane and expensive wine and all that - that came out in the matrimonial proceedings with his wife. On his watch, the market value of General Electric grew from around $12bn to over $300bn. Now for 20 years of Jack Welch, what did it cost the shareholders of General Electric? 10c per share.” But what about the vast pay-offs when chief executives leave, particularly when they are fired? How can these “payments for failure” be justified? First, he says, failure is not that clear-cut. A chief executive may have performed several tasks well but fallen down on one. Second, the board may not be united on whether to fire them. Even if the pay-off is not part of the original remuneration contract, the board may think it worthwhile to pay it. “I can tell you, it’s not easy to get a consensus on a board of seven or nine or 12 directors as to whether or not to oust Charlie Snodgrass as chief executive officer.” There may be five votes in favour of getting rid of him. “There are 12 members of the board. By giving Charlie an additional year of salary and bonus, you get the other two votes that you need to get a majority.” There is another factor to consider before talking about payments for failure. “In ousting Charlie Snodgrass, you may be ending his career. He’s 62 years old, he’s not going to get another job. Or he’s 57 years old, but this is going to be a black eye. He’s never going to have this kind of job again.” But is the same not true of any member of the workforce? Many of them never work again either, and they do not receive anything like the same amount of money when they leave. “Excuse me, but Raymond Snoggs, who is in the middle management at XYZ, does not have the impact on market value that Charles Snodgrass has. Why do we pay a quarterback on a football team in the United States so much more than the poor lineman who weighs three times as much? Because the quarterback is far more significant to the team.” Mr Bachelder concedes that there are pay-offs that are more difficult to justify, such as the $140m given to Michael Ovitz, when he was ousted from Walt Disney in the mid-1990s. He also understands the fuss surrounding Richard Grasso, who resigned as head of the New York Stock Exchange last year after it emerged he had been paid $140m, mostly in deferred pay, pension and benefits. It was later revealed that Mr Grasso’s contract entitled him to a further $48m, which he said he would not take. Mr Bachelder finds it hard to see why the Disney board agreed to Mr Ovitz’s severance arrangements when it hired him. “How the board missed that elephant in the living room, I don’t understand.” He is also aghast that the board of the NYSE allowed Mr Grasso to take his pension money early. “How could a board, how could a compensation committee, made up of such sophisticated investment bankers, not have realised that by paying Mr Grasso a lump sum $140m, the public outcry could result in his leaving the New York Stock Exchange?” Needless to say, Mr Bachelder did not negotiate either Mr Ovitz’s or Mr Grasso’s remuneration packages. What would he have done if he had been advising them? Well, he could see why Mr Ovitz thought he needed the $140m. “Remember, he was making $35m cash per year at the Creative Artists Agency that he had created. In a period of four years, he would have made $140m at a place that he created and virtually owned. To get him to come across the street, you have to do something.” But he would have advised Mr Ovitz to take the money in his initial package, with a signing-on bonus and enhanced salary, rather than as a severance payment that would inevitably cause an outcry. “I would not have done it as severance. I would have done it in a way tied to his employment. I think it would have been in his interest and in the company’s interest. The economic package I would have designed differently. And I would have certainly made sure that the board of directors clearly understood what we were asking for. The board didn’t realise what they were getting into.” And Mr Grasso? He would have told him to be patient, to wait until his retirement rather than taking the money while he was still working. “This is easy for me to say, because it’s in hindsight, but I do think the most fundamental of mistakes was to have him cash out all the deferred compensation that had accumulated over the years,” he says. Mr Bachelder appreciates that it is not always easy for boards and their committees to negotiate with him. “When you bring Joe Bachelder into a room, on the other side you’ve got a chairman of a search committee, who has working for him the general counsel of the company. Do you think he’s going to be tough as he might be on my client? My client’s going to be his boss in six weeks.” After the recent corporate governance reforms, are not the heads of these board committees now supposed to be independent of the chief executive? “Sure. But the chairman of the compensation committee is a member of the board at the behest of the chief executive officer, even though we’re putting in place gradually processes that will hopefully make the nomination of directors independent of the CEO. “If the CEO does not like a particular director, it’s not likely that that director will continue indefinitely. I don’t care how you handle it. The CEO has a tremendous influence.” So what is the solution? Board search committees should hire their own compensation lawyers, he says. We can be sure they will not be working pro bono.
找谁帮忙设计离职薪酬？
看看美国商业界一些最著名、薪俸最高的人物，如郭士纳(Lou Gerstner)、拉里?博西迪(Larry Bossidy)和詹姆斯?迪蒙(James Dimon)，他们的薪资可能都是由约瑟夫?巴舍尔德(Joseph Bachelder)为其谈判而来。很多顶级执行官迫切希望能够说服公司董事会，不仅开出的薪俸要以百万计，还要保证在他们离职时能多给几百万。为此，他们都去找这位资深律师。
他坐在曼哈顿的办公室里侃侃而谈，戴的眼镜使他显得既严肃又机敏。乍看之下，人们很难理解：各公司薪酬委员会的负责人为何会将71岁高龄的巴舍尔德视为一个难缠的对手？谈到自己为此得到的报酬时，他自我解嘲地说：“我为富人提供无偿服务。”
然而，当他为客户的薪酬方案开展有条不紊的谈判时，其柔中带钢的一面也变得更明显。
首先，为什么公司首脑的薪俸会如此之高？“要这样来看。一位资产经理人会得到所管理资产的1%。一位对冲基金经理人得到的会更多。再以桑迪?韦尔(Sandy Weill)这样薪资很高的首席执行官为例，他去年的收入大约是5300万美元。这是一大笔钱，但却仅仅是花旗集团(Citigroup)市值1%中的百分之二。聘用一位资产经理人所花的钱，可以请到50个桑迪?韦尔。”
他透露，去年美国1000家顶尖公司首席执行官的平均现金薪酬(工资加奖金)是140万美元。而这些公司市值的中间值为20亿美元。平均每位首席执行官得到其公司价值的0.07%。
“在美国，人们看待首席执行官薪酬时有一个问题：我们都受到‘异常值’(outliers)的影响，我想在英国也是如此。某人拿的钱超过1亿美元，这就成了标题新闻。如果说许多首席执行官所得薪酬都很合理，这样报纸就不畅销了。假如某位政治人物在讲话中说执行官的薪酬很合理，那就更于事无补了。”
他还表示，我们也应该正确看待其中一些特别出众的首席执行官。杰克?韦尔奇(Jack Welch)在通用电器集团(General Electic, GE)任总裁20年，他所得薪酬总额约为10亿美元。
“公司还为他在纽约提供了一套公寓，他可使用私人飞机、享用昂贵名酒等等。这些是在他与妻子的离婚诉讼程序中透露出来的。在他的带领下，通用电器的市值从120亿左右增加到3000亿以上。那么，杰克?韦尔奇在位20年期间，究竟花费了GE股东多少钱？每股10美分。”
但是，如何解释首席执行官离职时，特别是遭解雇时所获的巨额报酬呢？如何证明这些“为失败所支付的报酬”是合理的呢？他解释道，首先，所谓失败并无定论。一位首席执行官可能在数项任务的执行中表现出色，但却栽在某件事上。其次，董事会在是否解雇首席执行官这一问题上未必意见统一。即使解聘费用不是最初薪酬合同的一部分，董事会也可能觉得这样做是值得的。
“我可以告诉你，在决定是否罢黜查利?斯诺德格拉斯(Charlie Snodgrass)首席执行官一职上，要在7人、9人乃至12人的董事会取得共识绝非易事。”可能会有5票赞同罢黜决定。“董事会有12人。如果多支付查利一年的工资加奖金，会有另外两票赞同，从而获得所需的多数票。”
在谈论为失败者支付薪酬之前，还应考虑另一因素。“如果遭罢黜，查利?斯诺德格拉斯的职业生涯可能就此断送。他已62岁高龄，不太可能获得另一份工作。即使他才57岁，但在遭受罢黜事件这一重大打击后，他也不会再获得同样的工作。”
但是，上述理由难道不也适用于其他工作人员吗？其中许多人同样再也无法工作了，但他们在离职时却没有获得同等金额的酬劳。
“恕我直言，假定XYZ公司有一位名叫雷蒙德?斯诺格斯的中层管理者，他对市值的影响可比不上查利?斯诺德格拉斯。在美国橄榄球队，为什么四分卫所获酬劳要远远高于体重是自己三倍的锋线球员？因为四分卫在球队的重要性要大得多。”
巴舍尔德承认，有些薪酬的合理性确实较难证明，其中一例便是90年代中期被沃尔特?迪斯尼(Walt Disney)罢黜的迈克尔?奥维茨(Michael Ovitz)，当时他获得1.4亿美元。他表示也可以理解为什么理查德?格拉索(Richard Grasso)一事会引起轩然大波，格拉索去年辞去纽约证券交易所董事长一职，原因是他所获1.4亿美元薪酬被曝光，这些薪酬大多数是延付工资、退休金和福利。后来更有报道透露，根据合同，格拉索还可获得另外4800万美元酬劳，尽管他已表示不会接受那笔钱。
巴舍尔德表示，无法理解为什么迪斯尼董事会在聘用奥维茨时会同意他的离职金方案。“董事会怎么会忽视这一显而易见的内容呢？我对此无法理解。”
至于纽约证券交易所允许格拉索提前支取退休金，他也表示大为震惊。“董事会、薪酬委员会由如此精明的投资银行家组成，他们怎么会没有意识到：一次性支付格拉索1.4亿美元会激起众愤，最终迫使其离开纽约证券交易所？”
毫无疑问，巴舍尔德没有参与奥维茨或格拉索的薪酬方案谈判。如果由他为这两人提供法律建议，他又会怎么做呢？不错，他可以理解为什么奥维茨自认为应获得1.4亿美元。“别忘了，在自己成立的创意代理公司(Creative Artists Agency)，他每年工资有3500万。如果呆在自己创建及几乎全盘拥有的公司，他四年可获1.4亿美元。要想把他从街对面挖过来，得有所举动才行。”
但是，巴舍尔德会建议奥维茨在最初方案中以签约奖金和增补工资等形式领取回报，而不是离职酬劳，因为这样不可避免会引发抗议之声。
“我不会将其看作离职金，而会与聘用联系起来。我认为这样符合他本人和公司的利益。我会以不同方式重新设计金钱方案。而且我一定会保证董事会明白我们在要什么。沃尔特?迪斯尼的董事会在签约时并没有意识到自己背上的责任。”
对格拉索有何建议呢？他会告诉他耐心点，等到退休时再取钱，而不是还在工作就支取。他说：“我说起来容易，因为这是马后炮，但我的确认为，根本性的错误，在于让他以现金提取这些年所累积的所有延付酬劳。”
巴舍尔德明白，董事会及其委员会在与自己谈判时，并不总是感到自在。
“当我与客户进入谈判室时，另一边是聘选委员会主席，主席手下还有公司法律顾问。你觉得他会百般刁难我的客户吗？我的客户6星期后就将成为他的老板。”
经过最近的公司治理改革，难道这些董事会的首脑们不应摆脱首席执行官们的控制吗？“当然。但是，即使我们逐步引入使董事任命不受首席执行官影响的程序，但薪酬委员会主席作为董事会成员，还是要看首席执行官的脸色。”
“如果首席执行官不喜欢某位董事，那位董事就不太可能无限期留任。不管你对此怎么看。首席执行官有巨大的影响力。”那么，解决方案是什么呢？他认为，董事会聘选委员会应聘用自己的薪酬律师。
我们可以肯定的是，他们可不会提供无偿服务。
