The JOBS Act was designed to make it easier for startups to raise money through an initial public offering. But a lesser-noticed provision has made it more difficult to determine what those companies are paying their general counsel and other executives.
The federal Jumpstart Our Business Startups Act, which marks its second anniversary this month, includes a provision that allows companies to disclose less about executive compensation. According to a comprehensive survey of the rules’ impact on company behavior undertaken by Latham & Watkins, 85 percent of qualifying companies have taken advantage of this aspect of the rules.
Disclosing compensation information for a company’s top five highest-paid executives has long been part of public reporting. General counsel sometimes make it onto that list, especially at companies with significant legal challenges.
But businesses deemed emerging growth companies under the JOBS Act are required to disclose compensation information only for the CEO and two other most highly paid officers, ranks the GC rarely makes.
According to an informal Recorder survey of 56 California-based companies in the tech and life sciences spaces that went public between March 2013 and March 2014, only six included compensation data for the company’s top lawyer: TriNet Group Inc., Coupons.com Inc., Barracuda Networks Inc., FireEye Inc., Cyan Inc. and Blackhawk Network Holdings Inc. Those GCs had 2012 base salaries ranging from $64,308 for Cyan’s Kenneth Siegel to $300,000 for Coupons.com’s Richard Hornstein, but all were buttressed by healthy options packages that dramatically upped their potential pay. Of these, only TriNet and Coupons.com took full advantage of the option to limit officer listings to three. The rest within that group of six listed four or more.
Prior to the JOBS Act, several companies went public and disclosed their general counsel’s salary, but might not have done so had they had access to this provision. For example, when Zynga Inc., which would have qualified as an emerging growth company, filed its S-1 in 2011, its then-GC, Reginald Davis, was the fourth-highest-paid executive with a compensation package that included a base salary of $200,769, a bonus of $615,000 and stock awards of $3,946,804. Similarly, when LinkedIn Corp. went public, GC Erika Rottenberg was its fifth-highest-paid executive. She earned a base salary of $225,000, an actual cash bonus of $94,973 and an options package. She was not listed among the officers included in LinkedIn’s 2013 proxy.
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