Breakout Performance: Ironfire Capital

Bryan Marsal on the Unwinding of Lehman Brothers

dr.eric.jackson@gmail.com (Eric Jackson) — Sat, 07 Nov 2009 05:19:00 +0000

Enjoyed this interview from July 09 with Bryan Marsal of Alvarez & Marsal on the unwinding of Lehman Brothers:

What Galleon Teaches Us

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 04 Nov 2009 12:54:00 +0000

By Eric Jackson
11/04/09 - 06:00 AM EST

Stock quotes in this article: AMD , INTC , IBM

The government's case against Raj Rajaratnam, founder of hedge fund Galleon Group, on the charge of insider trading alleges that the hedge fund manager's primary competitive advantage for investors was a web of connections close to or inside technology companies feeding him illegal tips on future directions of the companies' stock prices.

What's shocking is how Rajaratnam is accused of having, over at least 10 years, cultivated a network of insiders feeding him nonpublic information about future earnings announcements from public companies like AMD(AMD Quote) (including its former CEO), IBM (IBM Quote) Intel(INTC Quote) and some of their most prestigious advisers like McKinsey & Co.

Why would so many bright, high-ranking people at such successful companies get caught up in such activities? Perhaps they craved access to a man whom Forbes recently ranked as the 262nd richest American, worth $1.8 billion and in the top 40 of hedge fund managers.

In a recent PBS "Frontline" episode on Alan Greenspan, the program made the allegation that the former Federal Reserve chief and acolyte of free marketer Ayn Rand had once joked with former head of the CFTC, Brooksley Born, that the two of them would never get along because she believed in prosecuting capital markets crimes and he didn't. He supposedly went on to explain that his strong faith in free markets made him believe that it was unnecessary to go after white-collar criminals through any kind of enforcement program.

Instead, Greenspan believed that market participants would ferret out ill-gotten gains and punish those people for their crimes by starving them of future capital. Such efficiencies would likely occur before the governmental regulatory body even knew something nefarious was going on.

Although I'm a proponent of unencumbered free markets, this point of view, whether Greenspan held it or not, is laughable. Bernie Madoff has blown this argument out of the water. And now we have the case of Rajaratnam, his decade old hedge fund, and his alleged 10 years of generating alpha through profiting on illegal insider information.

As a hedge fund manager, I look positively on this development. If illegal activity is going on by fund managers, it deserves to be highlighted and prosecuted. Investors will learn to ask tougher questions as part of their due diligence, and capital will ultimately flow away from managers posting false performance numbers to those who are truly generating alpha.

The hedge fund industry has to be one of the most Darwinian industries of any in the world. You don't get to keep your job by being the boss' son or being friendly with the right managers above you. You get to keep your job (and paid well if you do it consistently) by beating the market. You lose your job otherwise.

Perhaps because of the big potential rewards for success, it shouldn't be surprising that some aspiring and existing managers would try to bend the rules to get or stay on top. What this case shows is that ethical managers and investors are better off with a strong enforcement office at the SEC. The industry itself is not going to highlight the next cheater and investors -- even very sophisticated ones -- cannot do this themselves.

I know many hedge fund managers who've expressed mixed feelings about the Galleon case. They're happy that illegal activities by their competitors are being halted, but they worry the case will inspire more unnecessary red tape and heavy-handed oversight. The SEC is faced with a challenge in keeping ahead of the latest and greatest tricks employed by some managers to gain a performance edge.

However, the agency appears to have been pretty creative in coming up with some ways of identifying and tracking alleged illegal behavior in the Galleon case. Hopefully, it will begin to hire more people in the enforcement division with real-world Wall Street experience and not just more bureaucratic lawyers, as was criticized by Harry Markopolos in the Madoff case.

There's been a lot of discussion of getting hedge funds to register with the SEC as an important way for the agency to keep tabs on the potential risk these funds pose to the financial system. It's important, therefore, to realize that Galleon was registered -- its assets under management at one point last year topped $3 billion. More budget resources targeted towards enforcement would be taxpayer money better spent than registration for registration's sake.

Finally, a word of caution on the Galleon case. Although criminality ought to always be prosecuted to the fullest extent, Galleon and Rajaratnam deserve the right to defend themselves in court. What if they are innocent, after having announced they would be winding down the firm two business days after news of the arrests first broke? Could they ever truly be made whole by the SEC if that happened? That Orwellian possibility should send shivers down the spines of hedge fund managers everywhere.

Mark Cuban has never run a hedge fund, but what if he had when the SEC came after him last year for purportedly trading on insider information in the small-cap stock Mamma.com? If he'd had a hedge fund at the time, it likely would have also had to be wound down when details of his arrest first emerged. The SEC later dropped the charges, although it recently made some noise about bringing them back.

Wrong-doing deserves to be regulated and prosecuted by the SEC. The government should devote more resources to enforcement with the best qualified people involved. A few correct convictions will have a ripple effect throughout the hedge fund industry and discourage illicit behavior.

However, the SEC needs to realize it is playing with people's lives and livelihoods here. Investors will -- understandably -- redeem first and ask questions later when the agency launches actions against a fund or fund manager. They have a responsibility to do their jobs to the best of their abilities, as do hedge fund managers and senior executives within public companies.

Jackson's fund holds no positions in the stocks mentioned.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

Evan Bayh: Hypocrisy on the Public Option

dr.eric.jackson@gmail.com (Eric Jackson) — Thu, 29 Oct 2009 00:38:00 +0000

By Eric Jackson
10/28/2009 3:57 PM EDT
Click here for more stories by Eric Jackson

Evan Bayh, the junior senator from Indiana, is in the middle of a heated debate in the Senate on whether a public option should be included as part of President Obama's health care reforms. An organizer of a group of so-called Senate Blue Dog Democrats, to date, Bayh's been a staunch opponent of any changes to the status quo in this debate.

He's worried aloud that any public option would be a nod to socialism and counter to his principles as a fiscal conservative. When pressed on the issue, he's said he's simply a vessel reflecting the views of his Indiana constituents.

Yet Bayh, who until very late in the campaign last year was considered a top contender to be Obama's vice president, is at best naive and disingenuous, and at worst supremely hypocritical in pushing his views as those of his voters.

His wife, Susan Bayh, sits on the board of WellPoint (WLP - commentary - Trade Now) in her hometown of Indianapolis. Over the last six years, Susan Bayh has received at least $2 million in compensation from WellPoint alone for serving on its board.

She joined Anthem Insurance (the precursor organization to WellPoint) in 1998, when she was 38 years old and a midlevel attorney working for Eli Lilly (LLY - commentary - Trade Now). Her work experience prior to her stint at Lilly was five years as a junior law professor at Butler University in Indianapolis. Her work background at the time she was appointed to the Anthem board would have been surprising, given that she had no insurance experience and was relatively young and inexperienced to serve as a director on a multibillion-dollar board.

However, Susan Bayh had one competitive advantage that made her stand out as attractive to Anthem: She was married to Evan Bayh -- former governor of Indiana who, in 1998, was elected to the U.S. Senate.

Susan Bayh's corporate directorships provide a significant chunk of the Bayh family income. In addition to the $2 million she's received from WellPoint since 2003, she has received likely double that from additional corporate boards she has sat on. Last year, for example, she sat on four other boards besides WellPoint's.

She collected $656,062 in cash and stock for all her board work last year, but half ($327,000) came from her WellPoint directorship. Because she first started taking work as a corporate director in 1994 (when she was 34 -- when Sen. Bayh was still Gov. Bayh), she has served on 14 boards.

She's actually cut back on her directorships in recent years. In 2006, she served on six corporate boards and received just under $1 million in total compensation for the year. That year, Evan Bayh received the standard $165,000 annual salary for serving as a senator.

According to reports he filed that year, Susan Bayh's stock holdings were worth between $1.3 million and $2.7 million that year. Their family's total net worth was between $4.3 million and $15.1 million that year, not including a $1 million home in Washington owned in the name of Susan Bayh.

You don't build that kind of nest egg on a government salary. The Bayhs' wealth is completely thanks to Susan Bayh's numerous corporate directorships.

Quick Stock Sales

But make no mistake, these corporate directorships for Bayh are a cash ATM for her family. Remarkably, although Bayh has always been paid for her work on the WellPoint board in a combination of cash and stock, she has immediately sold her stock as soon as she can. She has never held stock in WellPoint for longer than a year.

If you examine the latest proxy filing with the Securities and Exchange Commission, it shows that Bayh owns exactly zero shares in the company (more than a decade after first being appointed to the board). She's the only director who doesn't hold any shares.

What does this say? To me, it clearly shows that she has no long-term interest in seeing WellPoint's stock price increase. She's there to get her cash and stock and cash out as soon as she possibly can. She's doing this for the money, not for the benefits of seeing shareholder value increase.

There is more proof that Susan Bayh seems oblivious to the concept of increasing shareholder value -- the very purpose of a corporate director -- through effective monitoring of the company's management.

Since 1994, she has served as a director for a small Indiana radio company called Emmis Communications (EMMS - commentary - Trade Now). This is a company with a $40 million market capitalization. Bayh currently serves on the compensation committee. For some unfathomable reason, despite Emmis' tiny size, Bayh has agreed that Emmis should have a corporate jet.

The CEO and COO/CFO are able to fly on the jet for personal use -- paid for by Emmis' shareholders -- at a cost of almost $100,000 last year. This is simply a ridiculous waste of money. A company this size should see its execs flying AirTran (AAI - commentary - Trade Now) and Southwest (LUV - commentary - Trade Now), not in a corporate jet.

A tip to Susan Bayh: When your company's stock is down 93% over the last five years and is being warned that it will be delisted by Nasdaq, it shouldn't own a corporate jet.

I don't begrudge the Bayhs making money; this is America. However, I am highly dubious when I read that Evan Bayh has repeatedly said that he is not influenced by the corporate ties of his wife.

In 2007, he told the Fort Wayne Journal Gazette: "I can honestly tell you that if my wife did not have a job, none, I can't think of a single decision I've made that would be any different. I look at what's best for our state and our country and my own conscience. My integrity matters more to me than anything, so I always do what's right for the people who put their trust in me."

He points out that lobbyists for his wife's companies aren't allowed contact with his staff as proof of the ethical wall that exists.

Yet Evan Bayh, Susan Bayh and WellPoint seem to share almost identical views on health care and the current public option debate. Bayh recently refused to commit to voting for cloture on a bill with a public option saying: "It's not fair to ask people to facilitate the enactment of policies with which we ultimately disagree."

Susan Bayh recently argued to Business Week that, "Traditional Medicare pays for quantity rather than quality, and all of the pilot programs that were intended to help government change that ... have failed." She strongly opposes any public option and instead supports reforms that would require everyone to own private insurance plans so that "everyone is in the pool."

WellPoint, the largest health insurer in the country, has 80 million customers who buy private insurance. It would greatly benefit from any government initiative to encourage more people to buy more private insurance. To that end, WellPoint spent $2.6 million in campaign contributions in 2008 for Democrat and Republican candidates. (Evan Bayh himself received more than $500,000 in campaign contributions from the health care industry in 2008.)

(Calls to Evan Bayh's Senate office and WellPoint public relations were not returned by the time this article was published.)

While my personal views on health care favor a market-based rather than a government-based solution, I find the hypocrisy of Evan Bayh highly offensive. You would have to be clueless not to see the conflict of interest of his views on this topic and the personal gain his family stands to reap as a result of his wife's connection to WellPoint, if his stated views -- in the name of his constituents -- are seen through.

Evan Bayh, Susan Bayh and WellPoint all look bad here. Until he recuses himself from votes on health care or she resigns from the WellPoint board, criticism of them on this topic will deservedly continue.

At the time of publication, Jackson had no positions in stocks mentioned in this article. Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

Icahn't Should Hang It Up

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 28 Oct 2009 12:37:00 +0000

By Eric Jackson 10/28/09 - 06:01 AM EDT

Stock quotes in this article: YHOO , MSFT , MOT , CIT , BBI , TELK , GFGFQ , CSCO

NEW YORK (TheStreet) -- After a string of disastrous investments and his departure from Yahoo!'s(YHOO Quote) board last Friday, it's time for Carl Icahn to hang it up running other people's money. Here's why.

Icahn's decision to leave the Yahoo! board comes a year after mounting a costly and distracting proxy contest to get elected. That's his right, of course. After all, investors in his Icahn Partners hedge fund were the ones who footed the bill for his efforts.

Those same investors -- including Icahn himself -- are also sitting on a loss on their Yahoo! investment. We don't know the exact magnitude of the loss but it appears, based on a review of the SEC filings, to be on the order of -23% or roughly $320 million on 60 million shares held at the end of June. Icahn's stated reasons for stepping down from the board were that he no longer had the time and Yahoo! no longer needed an activist.

If he's right, then someone should inform Icahn's buddies John Chapple and Frank Biondi, who came on Yahoo!'s board last year with Icahn. Their whole legitimacy for serving on this board is now in question based on Icahn's comments. They should make like their buddy and head home to Manhattan. And with Yahoo!'s stock at less than $17, far less than Microsoft's(MSFT Quote) offer of last year, it seems incorrect and premature to declare the company a success and not in need of further changes.

Yahoo! investors might correctly wonder: Why the heck did we elect you to represent our interests in the first place, if you're now leaving?

It's true that Icahn's busy tending to other investments in his portfolio with the aim to turn around the performance of Icahn Partners. The fund, which had a three-year positive run starting in 2004, reportedly showed its first loss in the third quarter of 2007, due to poor bets on Florida condo developer WCI and auto parts maker Lear(LEARQ Quote). Since then, WCI and Lear have gone bankrupt, costing Icahn's fund at least a couple of hundred million dollars.

Icahn's hedge fund performance continued to drop in 2008 (down 22% in Q4 alone) and 2009 (down 33% in January). His 60 million Motorola(MOT Quote) shares -- owned since at least December 2007 -- look to be down about $660 million. Motorola's decline came despite Icahn having fought for and winning board seat representation last year.

Icahn Partners was hit by $1 billion in redemption requests at the end of last year and Icahn injected $250 millionof his own money earlier this year. Even today, Icahn Partners' long positions total $2.7 billion through the end of June . That's significantly less than the $4.9 billion in long positions he heldone year earlier .

Icahn's strategy is to take large long concentrated equity positions without using options or pair trading to manage the additional risk, as well as buying up cheap debt. You can ride that train up when markets are good, but get crushed in a down year like last year.

The biggest thing taking up Icahn's time these days is an investment in CIT(CIT Quote). Some are reporting that he will become the biggest shareholder of the company under reorganization. Creditors will decide by Oct. 29 whether to push the company into bankruptcy or accept an offer to refinance its debt. Icahn wants the company to refinance its debt through him, saying the fees he'd collect from the company would be less than the other offer on the table.

Icahn likes buying up debt and bringing companies through the bankruptcy process. He followed a similar path to the one he's on with CIT at XO Holdings(XOHO Quote). In that instance, he effectively gained control of the company as a large debt-to-equity owner.

But he's being sued right now by R2 Investments, an 8.8% holder in XO. R2 contends Icahn turned down at least one buyout bid for the company higher than its then share price in favor of refinancing its debt by purchasing $780 million of preferred stock. In doing so and gaining 80% control of XO, R2 alleges Icahn was able to use the company's losses to offset taxes he would have otherwise had to pay on other businesses he owned. XO, which was trading at $1.27 at the time of the buyout offer that R2 says Icahn turned down, is now trading at $0.77 - a 39% decline.

Besides recent poor investments in Blockbuster(BBI Quote), Telik(TELK Quote), and Guaranty Financial(GFGFQ Quote), his entire Yahoo! foray since last year has been an unqualified failure. It will make future activist campaigns he launches more difficult to execute.

From the moment he launched his proxy fight last year, after Yahoo! turned down Microsoft's $34 a share verbal offer, investors were skeptical of Icahn. They perceived him as a quick flip artist wanting to juice the stock from $23 to over $30, without technology experience to effectively advise the company as a director.

Because he lacked support from institutional investors, Icahn knew his proxy fight might fail to get any of his nominees elected when put to a vote. Therefore, he accepted three seats on the board as a compromise. If you can't win against the wildly unpopular Yahoo! board after making a mess of the Microsoft negotiations last year, what does that say?

Icahn says he helped select Carol Bartz for the top job. Really? Wouldn't Jerry Yang have done it anyway? After all, it was Jerry who offered Terry Semel the top job in 2001. It was Jerry who got to be CEO in 2007, when he told his board he wanted it. And, it was Jerry who knew Carol from Cisco's(CSCO Quote) board and, by Carol's account, offered her the job.

Icahn's friend, Frank Biondi, got to hitch a ride on to Yahoo!'s board on Icahn's coattails. Biondi also joined Yahoo!'s compensation committee and approved Bartz's employment contract. This is the contract that will pay Carol $187 million for four years of work, if she hangs around that long, maxes out her possible annual bonuses, and if Yahoo!'s stock price rises above $25 for 20 consecutive trading days before 2016. That's a good deal for Carol -- not so great for Yahoo! shareholders.

We know that Icahn Partners' investors didn't get a great deal on Carl's involvement with Yahoo! over the last year. However, Icahn, Biondi, and Chapple seem to have done pretty well. According to Yahoo!'s proxy filing, the day these three men were elected to the Yahoo! board, Yahoo! gave each an option to purchase common stock with a grant data fair value of about $250,000 and restricted stock units with a grant date fair value of about $200,000.

This half-a-million-dollar payment went to them personally. Nowhere in the filing does it say that this money went back to Icahn Partners, which funded the expenses related to the proxy contest -- which most estimate cost at least $1 million.

In that same proxy filing, Yahoo! disclosed that, last year, "transactions in the ordinary course of business between the Company and entities for which the following directors served as an executive officer, employee or substantial owner, or an immediate family member of an executive officer of such entity" included "Mr. Icahn". No more information is given, but it would be interesting to know just what transactions were conducted, with whom, for how much, and for what services.

To most outsiders, it appears as though Icahn was summarily ignored by the parties around Yahoo! before and after he was elected to the board. He assumed that he could force a shotgun marriage between Microsoft and Yahoo! He assumed his initial $23-a-share investment could be quickly goosed to $32 or higher. He was wrong.

Steve Ballmer politely listened to him and then apparently stopped taking his calls. Carol Bartz has dissed him from the get-go of her tenure as CEO. She proclaimed to Forbes last year : "Icahn is just another shareholder. What's he going to do, fire me?"

Whether he realizes it or not, this attitude is probably the most damaging thing to Icahn going forward as an activist investor. CEOs and corporate boards will no longer see him as "Carl Icahn: Corporate Raider of the 80s" but "Carl Icahn: Has Been." In their eyes, he'll be Icahn't, not Icahn.

Carl Icahn will always have a reputation as a successful investor. Forbes recently pegged his net worth at $9 billion. Yet, it's unclear whether his hedge fund, Icahn Partners, will continue after his death.

While George Soros, 79, and Julian Robertson, 77, have repeatedly developed talented managers (like Stanley Druckenmiller, Lee Ainslie, and John Griffin) who go on to successful careers, Icahn, 73, has not. If Icahn was hit by the proverbial bus tomorrow, it's unclear that Icahn Partners could or would continue.

Icahn will always be able to grab the headlines with some outrageous comment about a CEO because he's become the "poster boy" for activist investing. He could keep running money and probably will. However, as he takes his leave from Yahoo!, it appears as though his most influential days as an activist investor are behind him and not in front of him.

-- Written by Eric Jackson in Naples, Fla.

At the time of publication, Jackson's fund was long Microsoft.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

Frontline's Report on the Battle to Regulate OTC Derivatives in 1998

dr.eric.jackson@gmail.com (Eric Jackson) — Thu, 22 Oct 2009 04:33:00 +0000

Steve Wynn on his purchase of a plane for Garth Brooks

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 21 Oct 2009 20:58:00 +0000

How to Make Transparency Work

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 21 Oct 2009 12:25:00 +0000

By Eric Jackson

10/21/09 - 06:00 AM EDT

Stock quotes in this article: RMG , MCO , MHP

NEW YORK (TheStreet) -- Lawrence Lessig's recent thought-provoking article in the New Republic challenges the assumption that more sunlight is always a better disinfectant for corruption and bad behavior than less.

Although his primary focus is on how more transparency doesn't always lead to better political outcomes, there are obvious implications of his argument to the world of corporate governance and executive compensation.

The critique, entitled "Against Transparency: The perils of openness in government," offers a partial explanation of why, even after Enron and Worldcom when everyone agreed that corporate boards screwed up in overseeing their companies, boards failed again in the recent mortgage bubble. It also suggests what must change now to finally improve corporate governance and executive compensation.

Lessig's argument is that it's become accepted wisdom on both sides of the political aisle in recent years that more transparency is always better. And, in an age of super-computers and ubiquitous access of the Web, it has become easier than ever to make data available.

The assumption many make is that making information available will curb bad behavior before it happens, because the actors will know they are subject to being called out.

Lessig challenges this by using the example of publishing a politician's calendar online. Does this level of information really help the public better judge his or her actions? Does it encourage the politician to behave more justly, knowing others will see his or her breakfast meeting took two hours instead of one last Thursday?

Lessig worries that more information disclosure can have the pernicious unintended consequence of making market actors believe that they don't have to worry about particular problems because they have been disclosed.

Yet, more of a data dump doesn't mean that the data will be processed and acted upon correctly. In fact, more data dumps -- especially in areas like corporate governance that aren't well-understood -- probably make it less likely that bad behavior will be singled out than many would assume.

Lessig is not arguing against transparency in favor of us returning to the crony capitalism world of back-room deals and Russia-style payoffs. He is arguing against a Pollyanna-ish view of the benefits of "naked transparency." Anyone in favor of better corporate governance and aligned executive compensation with performance would be an ostrich not to critically review Lessig's article and think about its implications.

The world of corporate governance is not well-understood by the public or general business journalists. Who but general counsels and governance wonks really understand how corporate by-laws, board selection, and governance-related disclosures in SEC filings work?

There are relatively few people around to actually challenge governance matters in companies -- and a majority of them people are already working as general counsels at companies protecting them from criticism.

In terms of more data not always being better, think of the Securities and Exchange Commission's landmark decision in the early 1990s to require companies to disclose executive compensation. As Lessig points out, instead of resulting in shame keeping a tamper on things, more transparency has inspired jealousy and creativity from compensation consultants and tax attorneys, further accelerating the stratospheric climb of executive compensation.

You can't put toothpaste back in the tube. Transparency and disclosure are here to stay and they certainly do help keep bad behavior in check. But, clearly, some changes need to occur as bad corporate behavior continues apace.

If you think general business journalists will save us, keep waiting. Lessig points out that one of the effects of the decline of mainstream media's traditional revenue sources has been the elimination of investigative reporting.

Less than 10% of large U.S. newspapers employ four or more investigative reporters -- and of those, it's likely scant few of those reporters have any background in corporate governance or executive compensation to be able to take on this topic. Forty percent of large newspapers have no investigative reporters.

If not journalists, who could challenge corporate governance and executive compensation transgressions? Institutional shareholders will only speak to companies privately and on a limited basis. Retail shareholders don't have the time, inclination, or expertise to do this regularly. Research analysts want to curry favor with management. Employees want to keep their jobs.

I actually believe it is the proxy advisory firms (like RiskMetrics(RMG Quote) , Proxy Governance and Glass Lewis) and credit ratings agencies (like Moody's(MCO Quote) and Standard & Poor's, a subsidiary of McGraw Hill(MHP Quote) that are best positioned to play this role. However, to do so effectively, they would have to eliminate conflicts of interest in their own firms.

RiskMetrics, formerly ISS, is the market leader in the proxy advisory space. Many institutional investors use RiskMetrics or other proxy advisory firms as cover for how they vote their proxies. If the pensioners for XYZ pension fund ever raised hell that their fund voted in favor of re-electing a board of directors for a future Enron or Lehman, the fund can blame RiskMetrics for telling them to do so. RiskMetrics happily accepts these fees for being investors' most preferred scapegoat.

The problem here is that RiskMetrics has its fingers in too many pies. They sell consulting services to public companies to tell them how to improve their internal practices (and presumably be viewed in a better light at proxy voting time). They also have started selling corporate governance ratings tools to companies and investors to better understand how to improve their corporate governance practices.

Companies will sometimes tout in press releases how the RiskMetrics Corporate Governance Quotient tool assigned them a 95% rating on corporate governance. They'll later complain if the proxy advisory side of RiskMetrics recommends against some or all of the board at a future meeting.

Others have complained about RiskMetrics' unchallenged clout leads to unfair judgments. One activist investor involved in a battle at a small-cap Canadian company, recounted how he was given 15 minutes to brief a 20-something analyst from RiskMetrics at 4:30 p.m. on a Friday before a long weekend. RiskMetrics came out the next week in favor of the incumbent board, despite many good reasons for withholding votes.

On the other side, one corporate director recently complained to me that Glass Lewis had recently recommended against his re-election based on his age and that he served on too many boards -- even though the majority of his other boards were subsidiaries of his main board. He claimed that they didn't require substantial additional time demands of him. "I was never contacted by them before they made their recommendation and I have no idea who I call to complain now," he said.

The simple solution here for the proxy advisors is to break up the consulting services from the ratings services, so there is no conflict. Ensuring there is sufficient competition will also help them keep their quality up.

The problems of credit ratings agencies' poor ratings and a pay-to-play business model are well-documented. Yet, these groups have the infrastructure, reputations, and could build up the expertise in corporate governance to level judgments against companies. Like proxy advisory firms, market actors would pay attention to their views if they could get their house in order.

Some will advocate for a government agency to bridge the gap here on being a domain expert overseer on topics like corporate governance and executive compensation. However, Ken Feinberg's tenure as pay czar -- however, well-intentioned -- makes me skeptical that such a solution could really be effective in the long-run.

Those of us in favor of better corporate governance and tighter links between executive pay and performance need to see the truth in Lessig's critique of transparency. More data dumps in to the backs of SEC filings won't fix anything. We need domain experts looking at every board, every deal, and every potential transgression, rendering judgments. Fixing the proxy advisory and credit ratings firms is the best way of doing that.

-- Written by Eric Jackson in Naples, Fla.

At the time of publication, Jackson did not have any positions in the equities mentioned.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

Talking with @Misstrade about Activist Investing

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 14 Oct 2009 18:09:00 +0000

I recently chatted with Matt Davio (@Misstrade) about activist investing, Microsoft (MSFT) and more. Thanks, Matt, for the opportunity to talk.

Eric Jackson @ericjackson part 1 and MissTrade Talk Activist Investing from miss trade on Vimeo.

Eric Jackson @ericjackson Part 2 Activist Investing from miss trade on Vimeo.

Yahoo!'s Defense of CEO Stock Sales Is Lame

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 14 Oct 2009 12:51:00 +0000

By Eric Jackson 10/14/09 - 06:01 AM EDT

Stock quotes in this article: YHOO , MSFT , ADSK

NEW YORK (TheStreet) -- Yahoo!'s(YHOO Quote) responses to recent criticism of CEO Carol Bartz's stock sales have completely missed the point and appear designed to obfuscate. If she wants to show real leadership, she needs to stop misleading shareholders.

Let's review the recent controversy. Last month, I noted how Yahoo!(YHOO Quote) officers and directors sold $233 million in company stock but purchased only $103,000 worth of shares over the past two years. This was all spelled out in Securities and Exchange Commission filings.

I created a simple spreadsheet tabulating the sales and purchases and published it online. It quickly drew the attention of the media, which primarily focused on how new CEO Carol Bartz has sold almost $2 million in stock in her first five months on the job.

Since then, Bartz denied that she sold anything -- once on CNBC and once at the New York press event at which she launched Yahoo!'s new $100 million marketing campaign.

These sales were not open-market sales but related to the vesting of restricted stock units (RSUs) Bartz received from Yahoo! in 2009 as part of a $10 million "makeup grant" designed to compensate her for options she left on the table when she left her part-time executive chairman role at Autodesk(ADSK Quote) to take the helm at Yahoo! in January.

Bartz's initial tactical response to the criticism about the stock sales seems to have been: "Damn the filings, I'm going to deny, deny, deny." Perhaps she thought that if she denied it forcefully enough, the issue would just go away.

Yahoo!'s public relations team has taken a more nuanced approach. In response to questions from the Guardian and CNBC about the issue, they explained that the sales were due to taxes Bartz owed on the vested stock. Therefore, they suggested, these weren't "real" stock sales and were no cause for alarm for investors.

These responses fail to address the real issue, though. I've never said these are open-market sales, although they certainly qualify as sales (as the SEC filings show). And I have criticized Bartz for not digging into her own pocket to pay the taxes owed on the vested stock instead of selling parts of those stock grants to do so. Obviously, I can understand why more junior employees choose to sell vested stock to pay their taxes, but senior executives like Bartz have the money to easily cover their tax bills. I'm assuming Bartz thinks her actions as CEO can help Yahoo!'s stock go up in the future. In order to show her confidence in her own leadership -- and in Yahoo! stock -- she should pay the taxes herself and keep all of her vested shares.

Last week, I highlighted in a blog post that Bartz sold another $1.3 million at the end of September, again selling some of those third-quarter vested shares that were part of her "makeup grant" in order to pay her taxes.

Yahoo!'s public relations team objected to this latest post from me, calling my assertions on this and Bartz's other sales "inaccurate and misleading." They pointed out Bartz didn't make an open-market sale. I never said she did. They noted that Bartz's "makeup grant" was previously disclosed. That's what I said in my prior criticisms. They stated that the company "currently" withholds a portion of vested stock in order to pay taxes for "all" employees receiving vested stock because it is "practical" and added that "many companies" do the same. As I've said before, if Carol Bartz wanted to pay her taxes on this vested stock so she could keep all the Yahoo! stock possible, would some human relations bureaucrat at the company have told her no?

As a follow-up, Yahoo!'s public relations team was asked to point to the previously disclosed filing showing that Bartz was required by Yahoo! not to pay taxes herself on the vested stock she received from the company as part of her "makeup grant." In response, Yahoo! pointed to the company's 10-K filing made last February and specifically referred to exhibit 10.17(D) in that filing.

The exhibit lays out the specific terms of the employment agreement that Carol Bartz negotiated with the company relating to stock grants she is to receive. Indeed, the exhibit states that Yahoo! will withhold some of the vested stock to pay Bartz's taxes. However, that same section goes on to say that "[i]n the event the Company cannot (under applicable legal, regulatory, listing or other requirements) satisfy such tax withholding obligation in such method", Yahoo! might have to require Bartz to "pay such amount in cash or check."

There's nothing in this exhibit that says Bartz couldn't pay her own tax bill herself on the grant if she wanted to, in order to keep all her vested stock. Indeed, it's interesting that Exhibit 10.2(F) in the same filing, which refers to situations where all employees (not just Bartz) exercise their stock options and owe taxes, says Yahoo! requires them to pay the tax bill. This can be done by selling a portion of their exercised stock options or paying "cash or check" out of their own pocket. This latter option is exactly what I argued Bartz should have done -- from a leadership perspective -- with respect to her "makeup grant."

My comments about Bartz' stock sales and her egregious pay package, which was approved by Yahoo!'s compensation committee in January, have been neither inaccurate nor misleading. From a shareholder's perspective, Bartz shouldn't have sold these shares in order to pay taxes on them. To demonstrate her belief in the long-term value of the shares, she should have paid the tax bill herself.

The group deserving the most blame in this compensation debate is, of course, Yahoo!'s compensation committee, which signed off on Bartz's employment contract. The committee is chaired by Art Kern and has members Ron Burkle and Frank Biondi, Carl Icahn's right-hand man. They should be ashamed of the following aspects of Bartz's employment agreement:

If Bartz sticks around for four years and maxes out her possible annual bonuses and if Yahoo!'s stock price trades for more than $25 for 20 consecutive trading days before February 2016 -- seven years from now -- she will receive a total compensation package for her four years of work of $187 million. Although Yahoo!'s stock was trading around $12 when she took the job at the start of this year, is it really that much of a "stretch goal" for Bartz to get Yahoo!'s stock above $25 for 20 straight trading days in the next seven years? After all, getting the stock back to $25 would bring it to a level that's still 20% less than what Microsoft(MSFT Quote) offered to pay for the whole company 18 months ago. This would be a lot of money for a relatively low hurdle. I'm all for executives making money for performance, but not easy money.
They gave Bartz a $10 million "makeup grant" in cash and stock for options she left on the table at Autodesk when she signed her Yahoo! employment contract in January. However, according to SEC filings, Bartz's remaining Autodesk options were only worth $3.3 million at that time. Why did Yahoo!'s compensation committee triple the size of the "makeup grant"?
When Bartz is getting a potential $187 million for getting Yahoo!'s stock back to $5 less than Microsoft's buyout offer, isn't Bartz being sufficiently "made up" for the Autodesk options she left behind? Does she need a "makeup grant" on top of all her other compensation? Most reasonable executives would conclude that getting $187 million was better than $3.3 million. This "makeup grant" was padding and should never have been given in the first place.
Why did Yahoo! agree to pay the taxes on Bartz's RSUs related to her "makeup grant" that she receives this year? Bartz would have had to pay her taxes out of pocket on her $3.3 million of remaining Autodesk stock options. Why should Bartz now pay taxes for a $10 million grant out of that grant, and not out of her pocket?
Why did Yahoo! agree to pay Bartz "up to $140,000" for the financial advice she received as part of negotiating her employment contract? This was a great perk for her, but not for Yahoo!s shareholders. Yahoo!s public relations team or Bartz have yet to account for this slap in the face to shareholders.

A majority of Yahoo!'s board deserves to be replaced for so poorly negotiating the potential buyout of the company by Microsoft. All of the members of the compensation committee deserve to be replaced for overpaying Bartz's predecessor, Terry Semel, and for approving Bartz's contract.

But let's be clear: Bartz is no babe in the woods. She's been around the block negotiating employment contracts and knew exactly what she was demanding. Her compensation, perks and tax gross-up demands are excessive. She should immediately pay back Yahoo! shareholders the $140,000 for the high-priced advisers she used to negotiate her employment contract. She should also show her shareholders and employees that her heart is in the right place when it comes to this company's future.

To that end, I call on Bartz to spend $25 million of her own aftertax income on open-market Yahoo! stock purchases. She can keep her $187 million for getting the stock back to a 20% discount to the Microsoft offer, but let's see her put some of her money where her mouth is -- and actually at risk.

-- Written by Eric Jackson in Naples, Fla.

At the time of publication, Jackson's fund had a long position in MSFT.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

The HP Horse Doesn't Want to Run for this Jockey

dr.eric.jackson@gmail.com (Eric Jackson) — Fri, 09 Oct 2009 03:59:00 +0000

My post a few weeks ago on Mark Hurd's perks at HP has generated a lot of traffic and email comments -- especially from current or former HP/EDS employees.

Here is a link from one ex-EDS'er in Germany upset at the way things have played out.

Of course, every business needs to find a way to cut costs and save -- especially in the current environment -- but there's clearly a large portion of HP employees who feel very upset at the way Hurd and HP management have gone about their cost-savings drive. Preaching cost cuts to the troops, and then turning around and living high off the hog themselves at the expense of shareholders.

I remember one time going to an HP meeting when I worked for a software company while Carly was still CEO. The meeting was at an old DEC facility in Nashua, NH. I remember it took about 10 minutes to walk from the guest entrance desk to the meeting room. Along the way, I passed dozens and dozens of empty cubicles, as jobs had been "rationalized" away elsewhere. When I finally got to the meeting room, the HP folks were all very smart and friendly, but I remember being amazed that we spent a good 15 minutes or so of small talk time discussing what an embarrassment Carly was as a CEO. I remember leaving the meeting thinking: "great people but that company is in trouble if that's how all the employees feel about their boss."

These recent comments I've received back from employees about Hurd remind me of that meeting again.

I'm sure Hurd would say these are disgruntled employees who don't get the need for "cost cutting." They don't understand the new competitive global environment we operate in, etc. etc. He probably would also say all this employee grousing will go away when the stock starts going back up again. In fact, at a recent analysts' day, he touted that HP was going to grow "faster than the market" in 2010.

Maybe. But I don't buy it. I sense deep anger and lack of trust among the rank and file with Hurd and his team. I get a sense of Hurd being the jockey on a horse that's decided it doesn't want to run any more for this jockey. He can whip it all he wants, but that horse is not going to run.

Let's see how HP's stock does next year and if it does grow faster than the market.

Carol Bartz Sold Another $1.3 Million of Yahoo! Stock Last Week

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 07 Oct 2009 17:03:00 +0000

As predicted last month, when I first raised this issue, Yahoo! disclosed late Friday that Carol Bartz had sold another $1.3 million of Yahoo! stock at the end of September. This brings her total Yahoo! share sales for the year to $3.3 million.

When I first brought up this issue of how she and several other Yahoo! insiders had dumped shares over the past 2 years, Bartz went on CNBC and flat-out denied that she'd sold any shares.

She later reaffirmed at the press conference announcing Yahoo!'s new $100 million marketing campaign ("It's about Y!ou") that she'd never sold any shares.

I don't understand why she has decided to take this strident denial approach, when her SEC filings clearly show she disposed of (i.e., sold) her shares.

These sales all have to do with a "Make-Up Grant" Yahoo!'s board gave to Carol as part of her employment agreement she signed with the company. They agreed to give her $10 million worth of cash and Restricted Stock Units (basically Yahoo! shares) in blocks each quarter for her first year (2009) on the job to make her whole for the Autodesk stock she left on the table to take the Yahoo! CEO job.

No one has ever explained why Yahoo!'s board decided to give her a $10 million "make-up grant" when, according to SEC filings, she was only leaving Autodesk stock and stock options worth $3.3 million at the time she signed the deal.

Every quarter, when Carol gets her cash and stock from Yahoo! for this inflated "Make-Up Grant," she owes taxes on it. What is unusual about Carol compared to other senior executives who have been well-compensated through the years is that, rather than pay her tax bill herself, she has decided to dump part of her Yahoo! shares every quarter to pay those bills.

If I was an employee or shareholder, I would be disappointed that Bartz didn't want to keep every single share of Yahoo! stock she possibly could -- because I would think she anticipates that the price is going to go through the roof in the months and years to come.

How do I know Carol has enough cash in the bank to pay these tax bills herself? In 2007 alone, she exercised options at Autodesk worth $47 million. That's just that one year. Of course, she has enough.

It comes down to a question of leadership. When she had the choice to demonstrate her desire to keep all the Yahoo! stock that she negotiated so hard to get, she decided that she would rather keep her existing cash in the bank, than keep a few more hundred thousand shares of Yahoo! And then, to go on about how she never sold stock, and get Yahoo! PR to say this is done all the time -- when it's not, by real leaders -- that's bush league.

Steve Wynn's Big Cashout

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 07 Oct 2009 11:45:00 +0000

By Eric Jackson 10/07/09 - 06:00 AM EDT

Stock quotes in this article: WYNN , MGM , LVS , EBAY

NEW YORK (TheStreet) -- Steve Wynn and his chief operating officer are pushing back from the table.

Since the end of July, Steve Wynn has sold $114 million worth of shares in Wynn(WYNN Quote) and his Chief Operating Officer Marc Schorr has sold over $7 million. It's the first time in the last decade that Wynn has sold such a large chunk of shares. For Schorr, the proceeds from his sale exceeded his average annual total compensation over the past three years.

For these casino operators, their sales might be a canary in the coal mine to other investors to take some profits on the gains in this sector since the March lows. Since March 9, Wynn is up 343%, MGM(MGM Quote) is up 480% and Las Vegas Sands(LVS Quote) is up a whopping 886%.

The valuations are rich, with Wynn sporting an 80 times forward price-to-earnings ratio, with Las Vegas Sands at 60 times. Meanwhile, Wynn carries a debt load of $4 billion and a meager free cash flow of $456 million. Las Vegas Sands is saddled with $11 billion in debt and $242 million in free cash flow. Forward P/E figures weren't available for MGM, but it has $12 billion in debt and $885 million in free cash flow.

Wynn's stock price is virtually unchanged from a year ago. Is the forward-looking prognosis for this sector really the same today as back then? Just a few days ago, MGM's mega-project, City Center, announced that over 160,000 applicants swamped their job fair for 12,000 positions. That suggests to me that -- while Vegas may still remain a playground for celebs and the super-rich -- the regular consumer will find it difficult to splurge for a trip to Sin City for the foreseeable future.

Beyond fundamentals and the macro-environment, there's another reason to be wary of investing in these casino stocks: poor governance. Maybe it's not surprising in a town where the high-rollers get the red carpet treatment, but the ultimate red carpet treatment is saved for the executives who run these casinos. Perks abound, rubber-stamped by crony boards. If shareholders don't like it, buy an electrical utility. This is Vegas, baby!

Casino honchos have received some of the sweetheart deals and perks in past years -- all paid for by shareholders. They include:

Personal use of aircraft. Steve Wynn racked up over $1 million in personal trips last year and both Wynn and Las Vegas Sands lease their aircraft fleet from companies controlled by Wynn and his counter-part Sheldon Adelson.
Leasing Steve Wynn's personal artwork collection and then picking up the tab for the insurance.
Valuing a coffee bar within a hotel as worth $3.1 million and then buying Adelson's 50% stake from it.
Setting up jobs for wives, step-daughters, nieces and nephews with total annual compensation worth as much as $4 million.
Paying $3 million for security costs related to protecting Adelson and his family (although Adelson chipped in $800,000 to the total bill).
Help in buying stock near the all-time lows, such as when Adelson's wife bought preferred stock and warrants last November which has since led to paper gains of over $1 billion. Las Vegas Sands' shareholders paid the $500,000 in legal fees she incurred in making this purchase.
Covering rent and amenities at the Wynn's personal residence for $580,000. Interestingly, a recent third-party analysis of this residence determined that the rent would not be reduced for the coming year, despite "the significant deterioration in the rental market in Las Vegas."
Personal construction of Las Vegas Sands's SVP Robert Goldstein's house in the amount of $364,000.

Of course, Wynn downplayed his mega-stock sale in August. He explained that he needed the additional "liquidity" in preparation for his upcoming divorce from his wife, Elaine. He was also quick to point out that this sale represented only 10% of his entire holdings. Yet, this is the second time that Elaine (who is also a Wynn director) will divorce. No additional liquidity was needed to fund the first divorce.

The fact that the sale also occurred so close to Wynn's COO dumping shares is also noteworthy and, I don't think, a coincidence. When you comb through these SEC filings and you see the kind of perks these executives sock away for themselves at the expense of shareholders, it's clear that an action like a stock sale doesn't happen with a lot of thought and consideration. It will be interesting to see what other execs at Sands and MGM do in the coming weeks. For now, the stocks are all still near 10-month highs.

What's next for these volatile stocks? If eBay(EBAY Quote) is a gauge -- as discussed in my column last week -- Wynn could be headed for trouble. Its CEO is distracted by personal trips on the corporate jet to the tune of $1 million and a messy divorce. Its COO is also now 61 and presumably starting to think about golfing full-time. It's time to start cashing out.

These firms are minding their own interests -- it's time for shareholders to start minding theirs.

-- Written by Eric Jackson in Naples, Fla.

At the time of publication, Jackson's fund did not have any positions in the companies mentioned.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

eBay Must Wring Out CEOs' Excess

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 30 Sep 2009 19:47:00 +0000

By Eric Jackson 09/30/09 - 06:00 AM EDT

Stock quotes in this article: EBAY , HPQ , YHOO , MSFT , AAPL , CSCO

NEW YORK (TheStreet) -- I've recently criticized Yahoo!'s (YHOO Quote) Carol Bartz and Hewlett-Packard's (HPQ Quote) Mark Hurd for excessive pay and perks, given their companies' performances.

My focus on Silicon Valley gluttony would be incomplete without discussing the perks at eBay(EBAY Quote).

After founding eBay in September 1995 and overseeing all aspects of the business for the first three years, Pierre Omidyar decided he had a tiger by the tail and needed some professional management. He hired Meg Whitman, a Harvard MBA with stints at Bain, Hasbro(HAS Quote), FTD, Walt Disney(DIS Quote), Procter & Gamble(PG Quote) and Stride Rite, as CEO in March 1998. The company went public six months later and has been a runaway success.

eBay is an incredible entrepreneurial story. Omidyar and his first employee, Jeff Skoll, deserve countless wealth for creating a multibillion dollar company from nothing. Along the way, Skoll -- who no longer holds any eBay stock -- cashed out equity worth $5.3 billion. Omidyar, still chairman, has cashed out about $3.5 billion to date, but his remaining equity stake is worth another $3.8 billion at current market prices. He now lives in Hawaii and is a philanthropist. And with as much wealth as they've created for themselves, Omidyar and Skoll have created more for others and should be celebrated for this success.

Whitman, who stepped down as CEO last year and now has ambitions to become governor in California in 2010, had a net positive record overseeing eBay. She rode a rocket ship of growth -- getting through the early days of frequent Web site crashes -- and ultimately got it to be a $60 billion company in late 2004; it's about half that valuation today.

Yet Whitman's final years at eBay leave her open to criticism. She promoted a drunken-sailor approach to acquisitions, always overpaying and making little effort to stitch them together. A culmination was the $4.1 billion purchase of Skype in 2005 (including all payouts), in which she took an auction and e-commerce site into the phone business.

Potentially more damaging in the long-run for eBay than overpaying was that Whitman didn't get the intellectual property associated with Skype. This has allowed Skype's founders to now come back and sue eBay for trying to unload the property recently at a valuation of $2.75 billion.

Although Whitman hasn't done as well as Omidyar and Skoll, she's been well-compensated for her time as CEO. According to filings with the Securities and Exchange Commission, Whitman was paid $47 million in total compensation between 1998 and 2008. Additionally, she sold eBay stock during that time worth about $732 million. She still owns stock in the company as of the end of last year worth another $500 million at today's valuation, as well as additional stock options that will have renewed value if eBay's stock gets above $31.

I believe Whitman deserves every nickel of compensation and stock sale proceeds she got between her joining the company in 1998 and Jan. 1, 2005. Since then, however, eBay has been in a tailspin with the stock down 59% vs. a Nasdaq decline of 3% over the same period. eBay's new CEO John Donahoe was hand-picked by Whitman because he used to work with her at Bain. He has spent the first two years on the job trying to give the company some sense of focus and direction, which it lacked under his predecessor.

Something happened in Whitman's last four years on the job in which her pay became dramatically disconnected with eBay's stock price and her perks started to go through the roof.

Based on my review of the company's SEC proxy filings, it appears that there were two big clues for investors that suggested, between 2005 and 2008, Whitman's interest had drifted away from increasing the stock price of eBay to increasing her cash compensation and perks. Had anyone seen these clues -- and, interestingly, perhaps Skoll did as he liquidated his entire eBay stake in 2006 -- they might have pulled the ripcord on owning the stock in 2006 or 2007 when it was trading at $35, before the bottom fell out in the stock and it hit its nadir below $10 this past March.

The first big clue that Whitman's eye was no longer on the ball as CEO had to do with her total annual compensation spiking in the last two full years of her tenure, even as eBay's stock price continued to decline. Peaking at $58 at the start of 2005, eBay's stock price dropped 43% over the next three years. Over that same period, Whitman's total annual compensation almost quintupled to $13.9 million from $2.9 million.

Meg Whitman's Total Annual Compensation

	SEC Filings

One of the interesting coincidences, and perhaps not a coincidence at all, about the above figure is that Whitman's annual compensation is remarkably modest from 1998 through 2002. Over that time period, she averaged total annual pay of $412,000. During that time, there were three members of eBay's compensation committee: Philippe Bourguignon, ex-CEO of EuroDisney; Bob Kagle, general partner of Benchmark Capital and early eBay investor; and Howard Schultz, the Starbucks(SBUX Quote) founder who also is a venture partner in Maveron, an early eBay backer.

At the end of 2002, Schultz left eBay's board and compensation committee. He was replaced by Tom Tierney. Tierney was formerly the CEO of Bain Consulting and, indirectly, Whitman's old boss. Tierney would pass any stock exchange definition of an "independent" director. But for those of us who live in the real world, it is obvious that Whitman had a new friend on the small group deciding how she would be paid.

It should come as no surprise then that this committee immediately started loosening the purse strings, and for the years 2003 to 2007, just before she resigned, Whitman's total annual compensation averaged $7.6 million.

The second big clue that Whitman was no longer as focused on eBay's fortunes in her final four years as CEO was the amount of time she spent flying around the world on personal business in eBay's corporate jet, which was paid for by eBay shareholders.

As the chart below illustrates, eBay's compensation committee (again perhaps indirectly linked to Tierney's arrival) went from a practice of not granting Whitman any personal air travel on the corporate jet paid by the shareholders to almost $1 million a year in her final two full years on the job.

That $1 million includes tax gross-ups, meaning shareholders also paid Whitman's taxes on the benefit she received of making all those flights instead of the billionaire paying her taxes herself. These two years of lavish perks coincided with a time when eBay's stock dropped 22%, even though Nasdaq was up 17% in the same period.

Meg Whitman's Personal Aircraft Costs Paid by EBAY Shareholders

	SEC filings

I took H-P's Hurd to task last week for spending almost $150,000 last year on personal air travel in H-P's jet and charging it to his shareholders.

So, I'm just flabbergasted seeing that Whitman spent more than $1 million on personal air travel in 2006. How do you do that? And how does Whitman and eBay's compensation committee justify trying to brazenly sneak that large expense report past shareholders, especially when the stock is tanking during the ginned-up, credit-fueled boom of 2006?

I don't follow California politics -- although I'm a fervent supporter of free market capitalism as advocated by Milton Friedman -- but I find it highly ironic and disingenuous of Whitman to portray herself now as a populist based on her time at eBay. According to a glowing Fortune profile of her political ambitions last March, the only "dirt" her critics have been able to dig up on her is that she voted in only half the elections for which she was eligible in the last decade. She explained it this way: "I was head down, building eBay, with two teenage sons and a neurosurgeon husband, and traveling half the time."

She was certainly traveling half the time -- for personal vacation jaunts, all paid by eBay shareholders.

In the last two years, perhaps self-conscious at just how embarrassing these numbers were, eBay decided to break up the personal air travel perks into two categories: purely personal travel and travel to outside board meetings. Whitman was on the boards of Procter & Gamble and DreamWorks Animation (DWA Quote) in the last two years of her tenure. So some of her million-dollar expense went to shuttling her to L.A. and Cincinnati several times a year for these meetings.

I can understand why eBay burnished Whitman's personal network to serve on those boards and rub shoulders with Steven Spielberg and other luminaries, but how did serving on those boards help eBay shareholders? They say that While Rome burned, Nero fiddled. At eBay in 2006, while the stock dropped and the Skype merger was a mess, Whitman flew to Hawaii and other locales on a private jet paid for from the shareholders' bank account.

So, a question to the eBay compensation committee: Who do you think you are? With the exception of H-P, no other tech company foists off this extravagant perk on its shareholders. Microsoft(MSFT Quote), Cisco(CSCO Quote), Intel(INTC Quote) and Apple(AAPL Quote) don't do it. Even Yahoo! -- the king of excessive compensation -- doesn't do this. What makes eBay so special?

Most troubling about this "CEO entitlement mentality" that Whitman adopted in her final years on the job is that she's passed the habit on to her successor. Donahoe racked up almost $280,000 worth of personal aircraft expenses in his first nine months on the job in 2008. I can't wait to see what he can do this year with a full 12 months.

I doubt he's ever had to answer to why he's indulging himself in this ridiculous expense. If asked, I suspect he'd look blankly ahead and say something like, "Well, Meg said it was OK."

It's time for eBay to grow up and stamp out these excesses. Just because you've always done something dumb doesn't mean you should keep doing it. Make your well-compensated execs pay their own way on personal trips using the corporate jet, and start linking pay for performance. Donahoe made $13.1 million last year for his nine months as CEO, while eBay's stock dropped 55%, far wider than Nasdaq's 30% loss in that same period.

eBay's board, particularly its compensation committee, needs to turn the page on the Meg Whitman era and get its executives focused on the tough task at hand in turning around the company instead of worrying about their next tee time.

-- Written by Eric Jackson in Naples, Fla.

t the time of publication, Jackson had no positions in the stocks mentioned.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

Maggie Wilderotter Quits Yahoo! Board

dr.eric.jackson@gmail.com (Eric Jackson) — Tue, 29 Sep 2009 11:38:00 +0000

Maggie Wilderotter -- the most recent addition to Yahoo!'s board, joining in July 2007 (not including Carl Icahn and his band of merry men who joined last September) -- is now its most recent departing director. She gave the company notice last week that she plans to step down at the end of the year.

The fact that she's leaving is "not due to any disagreement with the Company on any matter related to the Company’s operations, policies or practices."

When asked if she quit because of new CEO Carol Bartz, Wilderotter added in an email exchange with the FT that "I think Carol is terrific." The lady doth protest too much.

Of course, it is true that Wilderotter has trouble on the homefront with the company she's actually still the CEO for: Frontier Communications (FRT). She has only been able to squeeze in a few hours for that job over the past few years, while she's been serving as a director for Yahoo (YHOO), Xerox (XRX), and Proctor & Gamble (PG) -- whose board she joined this year to take Meg Whitman's slot who is now seeking to become California's next Governor.

Wilderotter's directorships pay well. In addition to the $5.5 million she made last year in her real job as CEO, she made $400,000 as a Yahoo! director, $132,000 as a Xerox director and she'll likely get $250,000 this year as a P&G director -- what the average director last year made there. Why give up the money?

I generally don't like former CEOs sitting on boards, as they help perpetuate the "I'll-scratch-your-back-you-scratch-mine" attitude that dominates most boards when it comes to compensation and really challenging the CEO. If you've been a CEO yourself, you would feel sympathy for the current CEO on whose board you sat. You wouldn't want to show him or her up.

But if former CEOs are bad directors, current CEOs are worse. From a shareholder's perspective, they have a job to do and they should be eating, sleeping, and drinking that job -- not flitting off to board meetings across the country. CEOs take on these directorships to network and further their own careers -- not bring back insights from another company to their home company.

Wilderotter is a good example. She joined Xerox's board in 2006. There, she met Robert McDonald, then COO of P&G. They hit it off. When Meg Whitman stepped down from the P&G board and AG Lafley decided it was time to hand the keys of P&G to McDonald, he called his old buddy from the Xerox board, Maggie Wilderotter.

Yet, all this learning, monitoring, and advising that Wilderotter has done as a director in these past few years has not translated well to performance at Frontier Communications -- or for the companies on whose boards she sits. Since she joined Yahoo!'s board in July 2007, Frontier's stock is down 52%, Yahoo!'s is down 36%, and Xerox's is down 60%. The NASDAQ over this time is down 20% (and Frontier's direct competitors have outperformed Frontier's stock by about 20% over this time). (Yet, Wilderotter's total compensation is up about 150% in the last two years.)

So there is an argument to make that she needs to make time for turning around Frontier. Yahoo! would have to feel a little hurt though that Wilderotter seems to see Xerox as having a brighter future than the Web portal (as she's staying on the Xerox board).

However, I think there's more going on here. When you join a big-time board like Yahoo!'s, you don't grab your ball and go home after 2 years. You look like a quitter. Heck, becoming a Yahoo! director is like getting tenure as a Professor -- except it pays much much better. You can settle in for as long as you like at Yahoo! -- just ask Art Kern and Eric Hippeau who are about to embark on their 15th year as a director there.

I think it's obvious that Bartz and Wilderotter didn't see eye to eye on something. This is Carol's board now -- and, if you're not on her team, you're off (as would be the case on virtually every other board in America today).

Wilderotter has no business being on any outside boards when her own company's stock is going down the tubes. However, compared to others on Yahoo!'s board, she looked like one of the stronger directors. I specifically recall Chairman Roy Bostock going out of his way at the 2008 shareholders' meeting extolling Wilderotter's virtues as a director.

As bad as Wilderotter was as a Yahoo! director, the remaining directors are worse.

How to End Decoupled Executive Pay-for-Performance & Extravagent Perks

dr.eric.jackson@gmail.com (Eric Jackson) — Sat, 26 Sep 2009 15:57:00 +0000

Over the past 2 weeks, I’ve criticized Yahoo!’s Carol Bartz and HP’s Mark Hurd for excessive pay and perks, given their companies’ recent performance. It’s been interesting to read the many emails I’ve received on the articles – mostly from employees of both companies.

A few emails – maybe 5% -- take the CEO’s side and make the case that paying our leaders a lot of money is part of our capitalist system. Their advice to me: get over it already.

However, the majority think it’s crazy that these leaders (more so Hurd because Bartz has only been there since February) have pushed through job cuts and slashed pay for workers and then pay themselves and their lieutenants gobs of money.

One reader who asked “why do people equate corporatism to capitalism?... Corporatism (what people ignorantly call capitalism today) transfers ownership of assets from the individual to the corporation. In pure capitalism, ownership of assets is predominantly held, and kept by, the individual.”

One reader asked me, expressing shock and outrage at how HP’s execs could be flying around on private jets for personal trips on the shareholders’ dime when she knew several former employees now in food lines, “how can this happen that these executives get away with this?” There are many to blame here.

Not many journalists or retail shareholders go through a company’s proxy statement in detail, reading footnotes on each page outlining executive comp. When mainstream reporters cover an executive’s new pay package (like Bartz’ back in January), they typically vastly understate it. Why? Quite simply, it takes a long time to read through and digest all the variables to tabulate a true likely scenario of what someone’s going to be paid over the next year or few years. Most journalists want to pump out a story and move on to the next one – or frankly aren’t trained in how to read all the permutations of a comp table.

If journalists aren’t able to read through these comp tables, is it any wonder that most retail shareholders can’t or don’t?

And, although the SEC has tweaked the requirements for how companies need to report this information, you can’t say the agency has nailed it yet, if the goal was for shareholders to be able to understand the information and act on it when necessary.

There is one group smart enough to know what’s going on in the comp tables, and is in a position to call out CEOs for egregious pay: the analysts who cover the companies. Yet, they won’t, because it doesn’t do them or their employers any good. Even post-Henry Blodget, analysts don’t get bonused for antagonizing CEOs with comfy pay packages. So, they keep their heads down, pump out meaningless price targets, and ask innocuous questions of management during their quarterly calls like “I wanted to get a little more color on your day sales outstanding,,,” or “what assumptions should we make about your tax rate for next year” and – my personal favorite – the obsequious pat-on-the-back “great job, guys.”

The few activist investors left are only going to poke the few companies that they take positions in. They’re not going to call out large numbers of CEOs – especially if they don’t have skin-in-the-game.

Larger institutional shareholders like Barclays Global or Legg Mason or some of the larger pension funds could take this issue on – and sometimes will raise their voice. However, these investors typically have hundreds of holdings. Is it worth their time and effort to stop and publicly criticize Mark Hurd or Carol Bartz? They also tend to shy away from having their comments in the press. So they’ll discuss their views during private chats instead – unfortunately keeping the CEOs self-serving practices from the light of public scrutiny.

Who’s left? Employees, who definitely have a vested interest in seeing a company’s shares increase and calling out internal practices that are hurting a company’s long-term prospects. But these people will not speak up publicly – understandably so – for fear of their jobs.

Then there are labor groups like the AFL-CIO and AFSCME – or Michael Moore for that matter -- who bring up excessive executive pay. Entrenched and overpaid CEOs and their aiders and abeters have been successful in portraying these groups as extremist and thus marginalizing them.

So, how will this problem of enormous executive pay that’s delinked to performance change? After all, we’ve been talking about this problem since at least the early 1980s and it’s never, ever changed. In fact, it’s only become more delinked.

As someone who strongly supports a free market capitalist system – not crony capitalism or ‘corporatism’ as the reader called it – I think it’s the responsibility of shareholders to speak up and put a stop to this. The SEC can help by changing regulations to make it easier -- and closer to a free market ideal -- for shareholders to remove entrenched directors who are not representing their interests in overseeing CEOs and management (such as the proxy access initiative being considered at the moment, which is an improvement over the status quo, but certainly could go further). Yet, it must start at the individual level, with each shareholder -- large or small – speaking up and making their voices heard.

Shareholders who assume they can free-ride off of what Gordy Crawford of Capital Research does (or Carl Icahn or Eric Jackson or whomever) will be playing right into the hands of Hurd, Bartz, and other CEOs who want us all to look away from all the pay and perks they’re getting – whether or not they perform.

I don’t expect employees to be martyrs and sacrifice the financial futures of their families by speaking out. But, with the Web, it’s become easier than ever for people to anonymously – yet with credibility and impact – share their views on a particular topic.

Shareholders also need to learn that, when you gripe about some fat-cat CEO on a Yahoo! Finance message board or a disgruntled employee blog, nothing changes. You have spoken as 1 voice only, and it’s been lost as soon as the words have left your lips. However, when you pool your voices together and speak as a group, it becomes impossible to ignore.

I hope that HP and Yahoo! shareholders (whether employees, retail shareholder or large shareholders), as well as other shareholders being extorted by crony capitalist boards and CEOs, start to channel their voices and put sufficient pressure on them to change their ways. Decoupled pay-for-performance (and extravagant perks) won’t change until shareholders rise up and say “we’re mad as hell about this and not going to take it anymore.”

[Jackson’s fund owns no shares in the companies mentioned in this article at the time of publication.]

US News: Why CEOs Survive Recession Better Than Others

dr.eric.jackson@gmail.com (Eric Jackson) — Thu, 24 Sep 2009 18:48:00 +0000

By Rick Newman

Posted: September 24, 2009

It's good to be CEO, even in a recession. Especially in a recession.

Hewlett-Packard's stock price

fell 29 percent in 2008, and the company announced plans to lay off 25,000 workers after it acquired Electronic Data Systems. But CEO Mark Hurd didn't feel the pain. Hurd earned $43 million in 2008, a 73 percent raise from his 2007 pay. Perks included $136,000 worth of personal travel on corporate jets, paid for by shareholders, and $7,472 in travel expenses for Hurd's family, according to an analysis of HP's annual proxy filings by shareholder activist Eric Jackson. Several other top HP executives earning multimillion-dollar pay got double- or triple-digit raises.

[See 10 gaffes by doomed CEOs.]

Hurd has been a strong CEO since he took over in 2005, generally credited with enhancing HP's profitability after a period of drift. But the big pay hikes during a dismal year are generating some of the toughest criticism of Hurd's tenure. "There are some very troubling aspects about how he, his management team and his board approach executive compensation and governance," writes Jackson. "Investors

should steer clear of this Silicon Valley icon until it gets its act together."

For all the talk of reining in CEO pay and enacting financial reform—even from some CEOs themselves—it's beginning to appear that very little has changed in the way companies are run and executives get paid. A new survey of CEO pay by research firm the Corporate Library finds that median take-home pay among more than 2,000 CEOs fell by 6.4 percent from 2007 to 2008, the first time on record that CEO pay has gone down instead of up. But that was in a year in which the stock market fell by 37 percent and the economy lost 2.6 million jobs. By almost every measure, the vast majority of companies performed far worse in 2008 than in 2007. "While the downturn has affected pay, the link between pay and performance remains weak," says the report. "Such a minimal decline in pay given the massive decline in shareholder value is hardly an adequate response."

A surprising number of CEOs didn't personally experience the downturn at all. Of 100 industries tracked by the Corporate Library, median CEO pay went up in 40. The 10 highest-paid CEOs included seven from the oil industry, which had a banner year as gasoline prices hit $4 per gallon. The others were Stephen Schwarzman of the Blackstone Group, Larry Ellison of Oracle, and Michael Jeffries of Abercrombie & Fitch. Schwarzman earned the most: $702 million. No. 10 Jeffries earned $72 million.

[See how to pay CEOs what they're worth.]

Reformers want to see much tougher rules linking executive pay to the long-term performance of their companies, and a few CEOs took a step in this direction. Lloyd Blankfein of Goldman Sachs endured a 97 percent pay cut in 2008, because the tony Wall Street firm rescinded bonuses for top executives. Jamie Dimon of JPMorgan Chase went without a bonus as well, resulting in a 92 percent pay cut. But both of those companies were big bailout recipients under the microscope of politicians and regulators. And both have paid back all their bailout money, which means Blankfein and Dimon will probably do a bit better in 2009.

[Get ready for the miraculous hollow economy!]

It's likely that overall CEO pay will bounce right back up in 2009 as well. Many CEOs earn a relatively low base salary, with the majority of their total compensation coming from bonuses, company stock, or options to buy stock. The plunge in the stock market last year means the value of CEO-owned stock fell as well, and many CEOs declined to exercise options to sell stock since prices were so low. That has changed in 2009, with the market up smartly. It could even turn out to be a record year for CEO pay raises, as they springboard off of last year's lows. At least somebody's getting ahead.

Carol Bartz is "an Old Broad" and "can take criticism" about her Share Dumps

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 23 Sep 2009 16:00:00 +0000

Shibani Joshi of Fox Business with 2 stories on Carol Bartz and her recent stock sales.

My favorite line from Carol's press conference yesterday, at which she was asked about criticisms about her dumping shares: "I'm an old broad. I can take it."

H-P Hurd's Pay Troubling

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 23 Sep 2009 10:59:00 +0000

By Eric Jackson 09/23/09 - 06:00 AM EDT

Stock quotes in this article: HPQ , DELL

NEW YORK (TheStreet) -- Mark Hurd was brought in to take the helm at Hewlett-Packard(HPQ Quote) in 2005.

He's well regarded by Wall Street for turning the company from a bureaucratic has-been to a market leader again. In the first 2 1/2 years of Hurd's tenure as leader, H-P's stock increased 137%. For the last two years, however, H-P's stock performance has been mediocre, dropping 5%. Although that was better than the Nasdaq, it tracked that index very closely over that period.

While Hurd deserves credit for turning this company around in the early part of his tenure by slashing costs and increasing focus, there are some very troubling aspects about how he, his management team and his board approach executive compensation and governance that suggest investors should steer clear of this Silicon Valley icon until it gets its act together.

Although H-P's performance has hit the wall in the past two years, Hurd's pay -- and the pay of his management team members -- has dramatically increased. For 2008, Hurd's total compensation reached $43 million, which made him the fourth highest paid CEO in America for 2008. Hurd's total compensation increased 73% from his $25 million in 2007, even though H-P's stock price declined 29% in 2008.

On his senior management team, the sharp compensation increases in 2008 were also noteworthy. CIO Randy Mott's total compensation went up 400% last year to $28 million. Imaging EVP VJ Joshi's total compensation jumped 83% to $22 million. Personal Systems EVP Todd Bradley's total compensation jumped 263% to $21 million. Technology Solutions' EVP Ann Livermore enjoyed a 31% bump in total compensation to $21 million. And CFO Catherine Lesjak got a 49% increase in total compensation to a more modest $6 million.

What also raises eyebrows about these sharp executive raises, aside from it happening in the face of a sharp stock price drop for the year (and the general market uncertainty which remained at the end of the year), is that 2008 was also a year in which these same leaders imposed mandatory 10% pay cuts for other executives and 5% cuts for the rest of H-P's workforce. It hardly seems like this select group is shouldering the pain like the rest of the employees.

At Dell(DELL Quote), the magnitude and the general direction of total compensation were far different than H-P for 2008. Michael Dell's total comp dropped 9% in 2008 from the previous year to $2 million. Other senior executives on Dell's management team decreased or modestly increased to an average total compensation for the year of $9.5 million -- or less than half of what their H-P counter-parts took home for the year.

But what should be most rankling to H-P shareholders -- and a very good reason to avoid the stock in the near term, as it speaks to the values by which this board and management team operate -- are the perks these executives are asking for and receiving from the board.

For example, last year H-P shareholders paid $7,472 for travel expenses related to Mark Hurd's family accompanying him to business meetings. Expenses for Hurd's security service roughly doubled to $256,000. Shareholders paid $500,000 combined in 2007 and 2008 for legal fees associated with bringing over CIO Randy Mott from arch-rival Dell. All senior executives availed themselves of about $18,000 worth of financial advice in 2008 (about four times the amount Dell senior executives received that same year).

Perhaps the biggest bonus for being an H-P senior executive is getting access to the fleet of corporate jets for personal use. Shareholders forked over $136,000 for Mark Hurd's personal use of the aircraft in 2008. Todd Bradley's personal use of the aircraft cost $128,000 in 2008, which was actually down from $327,000 worth of personal travel in 2007.

H-P explains in its proxy filing that for "purposes of reporting the value of such personal usage in this table, H-P uses data provided by an outside firm to calculate the hourly cost of operating each type of aircraft. These costs include the cost of fuel, maintenance, landing and parking fees, crew and catering and supplies."

I think it's completely unacceptable for shareholders to pay for this personal use perk. However, this explanation left me with more questions about these numbers. Who is this outside firm that provided this estimated hourly cost? What in fact was the hourly cost? How do shareholders know that the hourly cost was a fair market rate? Finally, what were these personal trips?

I'm not even sure how it's possible for Todd Bradley to have racked up $327,000 worth of personal travel in 2007. Did he have time to show up for work that year? Call me a conspiracy theorist but isn't it possible that this outside firm vastly under-stated the actual (fair market) hourly cost of using these aircraft for personal use? How will shareholders actually know unless the company releases the flight logs and numbers?

Dell and his senior executives charged no personal use of their aircraft to its shareholders.

A later footnote in the proxy filing for Hurd's personal travel says that the first 25 hours of personal travel are included and are "grossed up." Hurd owes taxes on the value of that perk, but H-P's board has decided that HP shareholders should pay Hurd's taxes instead of Hurd.

The same footnote later says that if Hurd's spouse is "requested by H-P" to travel with Hurd, then the company "grosses up" that amount, too. The internal process that goes on in determining the company request is not described. It could be as simple as Mark Hurd leaning over and saying to his assistant: "I'd like to go play golf in Hawaii this weekend with the CEO of one of our clients on business. Can you write me a quick email saying that, on behalf of H-P, you're requesting that my wife fly with me?"

And don't forget the minor scandal the erupted last January, when blogger Michelle Leder of Footnoted noticed that H-P had "grossed up" Hurd $79,814 for taxes he paid on meals involving his family. (Ann Livermore and VJ Joshi also got "grossed up" $10,000 apiece for meals with their families.)

Michelle estimated that, to receive a "gross-up" of this amount, Hurd and his family would have had to run up food bills during the year of more than $243,000.

H-P protested, saying it had made an error in its calculations and even refiled its proxy with the SEC. Magically, Hurd's "gross-ups" for his family meals shrunk to $3,285.

H-P's error and refiling could have simply been a decision on its part, based on the angry reaction of employees and shareholders, for Hurd and all executives to simply cover these meals and their taxes themselves. Let's face it: It wouldn't have been a hardship for any of them based on their compensation last year.

I don't mind pay for performance. I do mind pay for non-performance and I mind perks for breakfast, lunch, and dinner. And in a year of across the board pay cuts? Where is their shame?

The board is equally or more to blame of course. After all, they approved all this. I was particularly surprised to note that Ken Thompson has served on the HP board for three years now. Thompson is one of the most disgraced CEOs coming out of the financial crisis.

He ended up destroying the fifth largest bank in America, Wachovia, by pushing it heavily into the area of subprime mortgages. When you destroy a company with $8 billion in annual profits, you shouldn't have the right to continue serving as a director and get $300,000 a year for doing so.

It was announced last week that Web pioneer Marc Andreesen would join H-P's board. I hope he can help reform the company's governance, but I don't think it's likely. In 2006, Andreesen sold his company Opsware to H-P for $1.6 billion -- making him indirectly beholden to Hurd and the rest of the board for his payday. That means Andreesen will likely be another voice around the table tacitly approving whatever Hurd wants to do and pay himself.

-- Written by Eric Jackson in Naples, Fla.

At the time of publication, Jackson did not hold any positions in the companies mentioned.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

Are these Disclosures Conflicts of Interest for Yahoo!?

dr.eric.jackson@gmail.com (Eric Jackson) — Tue, 22 Sep 2009 12:01:00 +0000

If I told you that Yahoo! had made a charitable contribution to an American University in the last year, which one would you guess? Stanford University, where Jerry and David dreamed up the company in the computer labs more than a decade ago? Cal? San Jose State? Try Duke.

You probably weren't familiar with a long fabled relationship between the Silicon Valley-based Internet company and the fine academic institution on the other side of the country on Tobacco Road. Let me connect the dots for you. Yahoo!'s Chairman, Roy Bostock, and fellow director, Gary Wilson (both appointed by former CEO Terry Semel), serve on the board of the Fuqua School of Business at Duke.

Unfortunately, we don't know exactly how much Yahoo! gave to Duke. I don't see why shareholders shouldn't know the amount. The fact that it's the only university named in Yahoo!'s most recent proxy filing as having received such a contribution from Yahoo! last year, when there is this obvious relationship with two directors, calls for more disclosure -- not less.

It's also strange that the only other non-profit institution receiving a charitable contribution last year was The Partnership for a Drug-Free America, for which Mr. Bostock is also a director.

These donations are fully disclosed in the proxy under "Related Party Transactions" but are they right and proper? I don't think so. In my view, Mr. Bostock shouldn't be able to leverage his job as Chairman (which paid him $568,449 last year in total comp) to access the company's Treasury (the shareholders' money -- not his) for his pet causes.

Full disclosure: I don't think Mr. Bostock is fit to serve as the Chair of this dysfunctional board. He led the charge in the famously disastrous Microsoft merger negotiations last year. Then, he spoke at length at the 2008 shareholders' meeting, about just how hard Yahoo!'s board had worked to secure a deal. His words to the audience dripped with condescension.

I attended the meeting and asked him if he thought he deserved to make $500,000 for his Yahoo! job. He told me he didn't make that much money in the prior year and I had my facts wrong (they were the facts). I followed up by asking him to resign off the board based on how nearly half of shareholders had voted against his re-election at the prior year's shareholder vote. He told me I was a guy who looked at the glass half-empty and he saw the glass half-full with the number of "for" votes he did receive.

Given Mr. Bostock's rose-colored glasses, I have no doubt he saw no problem in seeking out a charitable contribution for his two affiliated non-profit organizations. How much were the contributions, Roy?

Perhaps more troubling for Yahoo! shareholders is that, in that same section of the proxy filing, there was the following disclosure:

- Transactions in the ordinary course of business between the Company and entities for which the following directors served as an executive officer, employee or substantial owner, or an immediate family member of an executive officer of such entity: Mr. Icahn, Mr. Joshi, Mr. Kotick, and Mrs. Wilderotter.

VJ Joshi runs the printer division at HP, so I can imagine that Yahoo! bought some ink cartridges from them last year. Bobby Kotick runs Activision, so maybe the company bought some recreational copies of "Guitar Hero" for the senior officer and director lounge. Maggie Wilderotter runs Frontier Communications which sells cheap phone and DSL service in upstate New York and the surrounding area. So, I have a harder time understanding Yahoo!'s need to do business with them -- although maybe there are some remote workers in Rochester who can't get AT&T access (with whom Yahoo! has a large strategic partnership).

It's the Carl Icahn connection that I have a harder time understanding. Certainly there shouldn't be any business dealings between Yahoo! and Icahn's hedge funds, where he's an executive officer and employee. Do his hedge fund investments qualify as him being a "substantial owner" even if they're relatively small? Even still, did Yahoo! do business with Blockbuster, Lions Gate Entertainment, Motorola, American Rail Car Industries, Biogen, Federal Mogul Corp., PSC Metals, or Endzon Pharmaceuticals? The company should more completely spell out the business dealings between Yahoo! and Carl Icahn. How much were they? To whom? And for what?

Later in the same section, they state:

- Relationships and transactions in the ordinary course of business involving aggregate payments greater or equal to $10,000 with companies and their applicable subsidiaries, for which the following directors served as non-employee directors during all or part of 2008: Mr. Biondi, Mr. Bostock, Mr. Burkle, Mr. Hippeau, Mr. Kozel, Mrs. Wilderotter, and Mr. Wilson

We've discussed the ties of Roy Bostock and Gary Wilson to Duke and The Partnership for a Drug-Free America. Now, we've expanded the relationships where Yahoo! paid these directors' companies to include Mr. Kozel (no longer on the board), Mr. Hippeau who makes investments for Softbank and took a job earlier this year for the Huffington Post (in which he's an investor), Mr. Burkle who is on the boards of Occidental Petroleum & KB Home, as well as the Frank Lloyd Wright Building Conservancy, and Mr. Biondi (friend and colleague of Carl Icahn) who is a director for Amgen, Cablevision, Hasbro, and Seagate.

Again, shareholders should fully understand the exact amounts of the payments being made and to whom they are being made in these related-party transactions.

Maybe these payments are all legitimate and above board. If they are, let's disclose them and let sunlight be the best disinfectant.

[Jackson's fund holds no position in YHOO at the time of publication.]

How Microsoft Will Save Us from the Housing Crisis

dr.eric.jackson@gmail.com (Eric Jackson) — Mon, 21 Sep 2009 18:54:00 +0000

Kudos to Michelle Leder at Footnoted for spotting another distasteful perk paid for by hapless shareholders. This one was at Microsoft (MSFT) -- which is a long holding of mine.

Microsoft has earned some praise recently among those who promote good corporate governance practices for blogging (I guess that demonstrates openness, but what's the big deal?) and proactiviely allowing a triennial (once every 3 years) shareholder vote on executive compensation. I guess every dog has his "say on pay" day -- once every 3 years, at least.

This last disclosure came out late Friday in Microsoft's preliminary proxy.

Michelle studiously noticed that in that same filing, Microsoft disclosed that it may outdo the Fed and the Obama administration in saving the country from the current financial mess. Specifically, they are going to focus on the housing mess and try to stabilize the market one Bay Area executive mansion at a time.

When they hired Stephen Elop away from Juniper Networks as COO in early 2008 (where, coincidentally, Microsoft's former head of its rudderless Online Services Business Kevin Johnson decided to take the top job later), Microsoft disclosed that they took the rather unusual step of buying Elop's Silicon Valley mansion.

The reason for this was that Elop apparently couldn't sell it. Therefore, using bizarre executive comp logic, he hired 3 independent appraisers to peg the value of his home and got Microsoft's shareholders to pay him that amount for the home. This was all to "induce" him to take the job of heading up Microsoft's Business Services Division in Redmond. I know it rains more in the winter in Seattle, but that's quite an "inducement." I guess the "war for talent" is brutal -- even in the biggest recession since the Great Depression.

There's no disclosure on who these 3 appraisers were or what value they assigned to the house -- or how much they were paid for their assessments and who paid them (though you have to assume again it was Microsoft's shareholders).

Then, come some more details in the filing:

We also agreed with Mr. Elop that if the appraisal resulted in a loss on the sale of his prior home, we would pay him the difference between his home purchase price (adjusted for improvements) over the appraised value. Because of the precipitous decline in the California housing market over this period, the price at which the house ultimately sold was significantly below Mr. Elop’s purchase price adjusted for improvements.

What was the damage for Microsoft shareholders and the purchase of the mansion and making Mr. Elop whole on his original purchase price and home improvements? $4.2 million.

Adding insult to injury, Microsoft then decided to "gross up" Mr. Elop $1.2 million for these additional benefits, so they wouldn't cost him a dime with the IRS and the State of California. Microsoft shareholders will again happily pick that up.

When did you say I'll get a vote to say how I feel about these perks? Oh right, 3 years from now.

It doesn't end there. The proxy filing also goes on to say that Microsoft has flipped houses for its corporate executives before, specifically for current CFO Chris Liddell, when he decamped from his CFO job at International Paper in Memphis, TN, for the rugged Northwest. The kiwi (Liddell is a New Zealander) got a $2 million relocation expense paid for related to buying and then selling his house (and only a $30k "gross up").

Other interesting tidbits from the Microsoft proxy filing:

Microsoft spent $472k with Corbis Corporation on digitized images last year. Corbis is owned by founder Bill Gates. However, Corbis spent $370k on Microsoft software in the same year.
Ray Ozzie's brother works for Microsoft; as does Robbie Bach's nephew. Both relatives earn more than $120,000 a year -- although no more details are provided.

Although I've seen other companies with more egregious perks for their execs than this, these disclosures are still distasteful and the expenses (and taxes) should be covered by the executives themselves -- not shareholders.

If Elop couldn't sell his house in the Bay Area and he didn't want to carry the mortgage on it while moving to Seattle, that's his decision. As a shareholder, I'd say let's find some other executive who does want this exciting opportunity. Enough with the "that's what we had to do to get this talent" logic. There are many talented people that would have jumped through hoops for this job.

It's too bad Elop and Kevin Johnson couldn't have coordinated their plans to switch jobs at Microsoft and Juniper Networks. They could have saved shareholders a lot of expense by just doing a house swap.

[Jackson's fund holds a long position in MSFT]

Bartz's Pay Package Egregious

dr.eric.jackson@gmail.com (Eric Jackson) — Wed, 16 Sep 2009 11:57:00 +0000

09/16/09 - 07:00 AM EDT

By Eric Jackson

YHOO , MSFT

Yahoo!(YHOO Quote) CEO Carol Bartz didn't get the "boatloads of cash" for her shareholders from Microsoft(MSFT Quote) as she vowed in May, but she'll take home a boatload of cash herself out of Yahoo! for her work in 2009.

A review of her total compensation plan reveals that Bartz is on track to make $20 million to $30 million this year in cash and stock (depending on if the share price rises 13% by December and stays there for the rest of the year or not); and $187 million for her first four years on the job, assuming the stock can get back to $25 by then.

In last week's Activist column, we shined a spotlight on the large amount of insider selling which has occurred at Yahoo! in the past two years (based on our study of the Securities and Exchange Commission filings leading to other media reports on this topic), including Bartz dumping $2 million in shares in March and June.

Since that column appeared, Bartz, Yahoo!'s PR SWAT team and Bartz' defenders have claimed that there was "no story here," as these were "routine" share sales made to pay taxes on generous Restricted Stock Unit (RSU) grants. Bartz went so far as to say "I didn't sell anything" on television and there have also been vague references to her shares being "reacquired" again. They have not - as the actual Form 4 SEC filings show. They state only "disposals" of $2 million in Yahoo! shares, which of course immediately lower the company's earnings per share.

Contrary to what any PR flak says, these kinds of tax-related share dumps when RSUs vest may be common at lower levels of the company, but they are not at the highest level, where executives have more than ample means to pay their taxes out of their own pockets. Bartz made $45 million in 2007 alone just from exercising her Autodesk(ADSK Quote) options, so she could have easily scratched together $2 million to pay the tax man if she'd wanted to hold on to her Yahoo! shares.

It turns out that, when you start to peel the onion around Bartz' CEO employment contract, there are many interesting details which Bartz would likely not want discussed. Prior to negotiating with Yahoo! for the top job, Bartz hired an unnamed financial advisory firm to help her. Later, when the deal was done, she got Yahoo!'s board to agree to Yahoo!'s shareholders paying "up to $150,000 for advisory fees" for her use of that savvy firm (which is outrageous and she should immediately reimburse Yahoo! shareholders for that with interest).

That negotiated agreement is a good one for Bartz, as this analysis shows. Making reasonably conservative assumptions, Bartz should get $187 million for her planned four years of work at Yahoo!

One small part of that agreement is something Yahoo! calls the "Make-Up Grant." Because of "forfeiture of the value of equity grants and post-employment medical coverage from" leaving her old executive chairman job at AutoDesk, which has one-fourth of the market cap of Yahoo!, Yahoo!'s board said she was due $10 million.

As part of that grant, she'll get $2.5 million in cash this year and 639,386 RSUs (or shares). The cash and shares vest at a rate of 25% quarterly in 2009. By the end of this year, those shares and cash will be worth about $12.5 million (not the $10 million grant date fair value; see this breakdown for more detail .

Yahoo! states later that they are providing "post-employment medical coverage for Bartz, her spouse and eligible dependents" on top of her grant, so that should not be linked to the value of the "Make-Up Grant." Therefore, the only thing to be made up for is the value of her unexercised AutoDesk equity options.

Yet when you go back and review the unexercised options she possessed in the 2008 AutoDesk proxy statement and the ones she subsequently exercised and sold in share sales through the rest of last year, I calculate Bartz' value of her unexercised equity grants at far less than $10 million.

On the date her Yahoo! employment agreement was announced (Jan. 15, 2009), AutoDesk was trading at $16.14. That means, her remaining 250,912 $11 strike price, her 36,420 $8 strike price, and her 993,056 $14.40 strike price unexercised options had a fair value on the date she took the Yahoo! top job of $3.3 million -- not $10mm.

This major "Make-Up Grant" discrepancy between what Yahoo! chose to award Bartz and what it appears -- according to her AutoDesk SEC filings -- she was in fact walking away from should be explained to shareholders immediately.

Setting this problem aside, Bartz -- like any other employee who gets RSUs -- has to pay tax on stock grants whenever she receives them. To pay the tax, Bartz must make a choice to write a check to the government from her personal account to cover this or sell part of these Yahoo! shares from the RSUs. In the first and second quarters, Bartz sold $2 million in Yahoo! stock to pay her taxes. It's very likely she'll do this again later this month and in December, when the rest of her "Make-Up Grant" shares vest.

Which brings us to the core problem: given her leadership role at Yahoo! and given her generous Yahoo! compensation and sizable wealth she's amassed from her time at AutoDesk, why would she dump Yahoo! shares instead of paying her tax bill herself? It sends the wrong message to employees and shareholders that she wouldn't be kicking and screaming to keep every last Yahoo! share in her possession.

I think there's a simple answer to this question: Carol Bartz is used to getting generous tax gross-ups from companies she works for and likely she (or her high-priced advisors) negotiated this in as part of the deal.

A tax gross-up is when an executive wants to receive a certain amount of compensation award or benefit but knows they'll have to pay taxes on it. Rather than pay that tax bill themselves, the executive asks the company to bump up the value of the award in the amount of any taxes they would otherwise have to pay. They end up getting the amount of money they want tax-free -- with taxes paid for by the company's shareholders rather than the executive.

For an example, let's go back to the 2008 AutoDesk proxy statement : "During fiscal 2007, Ms. Bartz's other compensation included post-employment health and dental benefits with an actuarially determined present value of $631,986 plus a $421,324 tax gross-up, and a Company gift for appreciation of years of service as CEO costing $67,500 plus an associated $33,889 tax gross-up." Have you ever heard of a gross-up on a gift for years of service?

Tax gross-ups are completely unacceptable and any well-governed company doesn't allow them. If you make money or a benefit of some kind, you should pay tax on that -- not the shareholders who gave you the benefit in the first place. To use one of Bartz' favorite words, tax gross-ups are stupid.

Bartz has clearly become used to tax gross-ups at AutoDesk and likely she or her high-priced advisors were thinking of this "Make-Up Grant" in the same way. They might have negotiated her $3.3mm fair value (as of mid-January 2009) unexercised AutoDesk options into a $10mm make-whole grant from Yahoo! That's a tax gross-up and then some.

Yahoo!'s compensation committee is to blame here. First, they pay Terry Semel over $570 million for his six years as CEO; then, they award Bartz a four-year $187 million pay package with up to $30 million in year one; then, they see their ineffective incentive plans lead to Yahoo! insiders selling $233 million in stock over the past two years versus insider purchases of only $103,000. Now, we learn of these discrepancies in the reasoning for different elements of Bartz' pay.

Where is Carl Icahn in all this? It turns out he was right at the negotiating table when all this went down. His colleague, Frank Biondi, has served on Yahoo!'s compensation committee since joining the board in September 2008. He directly oversaw the design and approval of Bartz' pay plan, which, in my view, wasn't in the shareholders' interests.

Of course, Bartz is at fault here too. She's gotten too used to high pay and tax gross-ups over the past few years -- both for herself and for CEOs she has socializes with.

Examine this table below for a comparison between the average annual total compensation for several popular tech CEOs vs. ones in Bartz' social network. Bartz doesn't suffer fools -- or CEOs who don't bank a lot of coin.

Popular Tech CEOs
CEO	Most Recent Avg. Annual Total Compensation
Eric Schmidt, Google	$500,000
Jeff Bezos, Amazon.com	$1.3mm
Steve Ballmer, Microsoft	$1.3mm
Steve Jobs, Apple	$1
Carol Bartz' Network of CEOs by Employment or Directorship
CEO	Most Recent Avg. Annual Total Compensation
John Chambers, Cisco	$11mm
Paul Otellini, Intel	$12mm
Dan Warmenhoven (Ex-CEO), NetApp	$5.7mm
Carl Bass, AutoDesk	$7mm
Carol Bartz (when Executive Chairman), AutoDesk	$4.5mm

Source: Company proxy statement SEC filings

Several things should be done to fix this mess:

To avoid these questions about her commitment, Bartz should put some skin in the game. I think she should buy stock in Yahoo! that represents a significant chunk of her net worth. I would suggest at least half the value of her 2007 exercised options from AutoDesk or $23.5 million. This is not that large relative to the upside she should make from her 4 years at Yahoo!
Bartz should immediately pay back the $150,000 to Yahoo! shareholders for her financial advisors who helped her negotiate a $187 million four-year deal for her.
The Comp Committee (Art Kern, Ron Burkle, and Frank Biondi) should all resign off the board. Enough is enough.
Someone else from Yahoo!'s board should explain why Bartz' $3.3 million in unexercised AutoDesk options had to be "made up" for by Yahoo! shareholders to the tune of $10 million.
Yahoo!'s board should also provide much more transparency on Bartz' employment contract. For example, what cash flow and total shareholder returns targets does she exactly need to hit in order to receive her 4 times base salary annual bonus and other equity grants and options. If shareholders can't trust the details around the "Make-Up Grant," why should they trust the board's decisions on these other compensation matters?
Yahoo! should change their comp plans going forward for all executives and directors so that base and target bonuses are quite low -- even lower than the often cited "peer group." How will they attract people? Load up the incentives on the back-end. And, instead of having those incentives be triggered by 20 consecutive trading days at a certain stock price level (as Bartz' are), require that the stock stay there for two years (with clawbacks in case it drops back done). This will eliminate short-termist thinking.
Finally, Bartz should refrain from going on TV in the future saying she "didn't sell anything" after she has sold $2 million in shares.

At the time of publication, Jackson had a net long position in Microsoft.

Eric Jackson is founder and president of Ironfire Capital and the general partner and investment manager of Ironfire Capital US Fund LP and Ironfire Capital International Fund, Ltd.

How Can a Free Market Capitalist be Against Management?

dr.eric.jackson@gmail.com (Eric Jackson) — Tue, 15 Sep 2009 15:03:00 +0000

In response to my recent criticisms of Carol Bartz, her management team, and board at Yahoo!, I've had some people ask me "How can you be against management? Don't you support business and capitalism?"

When did it became assumed that anyone pro-management was pro-capitalist and anyone pro-shareholder rights was pro-socialist?

When I respond that I'm a free market capitalist in the vein of Milton Friedman and Ayn Rand, they seem surprised. I suppose they think that any CEO or executive would be a supporter of Friedman's conservative views - not a pro-shareholder person. Typically, on SEC votes, Republicans line up on the side management and Democrats on the side of shareholders. Isn't that the way it works? No.

I think that any individual -- CEO or shareholder (or Republican/Democrat for that matter) -- is self-interested. That's the whole basis of Friedman's views on the power of individual choice. Yet I don't think of most CEOs/boards/execs in America today as true free market capitalists -- at least in how they govern themselves and hang on to power. I think of them as crony capitalists -- not unlike the robber-barrons.

I don't think any of these individuals are inherently good or bad people, but they operate in a system in which they have found how it can be exploited for their self-interest -- especially when it comes to compensation and keeping the system for nominating replacements to the board as closed as possible. Welcome to Club Crony.

Since the beginning of the corporation, the board of directors was to have supposed to represent the will of shareholders. Yet Berle & Means showed that this intent quickly got side-tracked by management self-interest over the interests of the shareholders. The board was always supposed to take the long-view for the interests of its shareholders -- not do the work of management or make executives decisions by frequent referenda of shareholders. If the board wasn't taking the interests of shareholders in mind, the intent was to allow replacing directors until they did properly represent shareholders' interests. Both Friedman and Rand both recognized this.

Yet, in practice, what's happened is that board members became selected by CEOs (who often revamped the board when they took the job in order to be governed by "their people"). If I put my friend on the board, then promote him to the Compensation Committee, he might qualify for whatever definition of "independent director" you like, but he's still going to be my buddy and probably more generous to me in my compensation than if he was some 3rd-party.

Besides picking my directors to govern me as CEO, I can influence the compensation they receive. Therefore, if I wish, I can ensure they get paid a lot. If they're happy with receiving a lot of comp, maybe they will keep paying me a lot. It becomes a mutual admiration and back-scratching society.

The slate of directors runs every year unopposed. Most shareholders (especially retail) are apathetic and don't vote anyway.

If a shareholder wants to run a proxy contest against us, they have to pick up the tab for doing so, while we can use our shareholders' money. If a shareholder wants to sue us, our D&O insurance protects us from any liability (paid for again by shareholders) and the shareholders will also pay our top drawer NY lawyer fees.

This wasn't how it was supposed to be. Management's insulation from being held accountable to shareholders promotes waste, not efficiency; mediocrity, not innovation; wealth-destruction, not wealth-creation.

The solution before the SEC on proxy access isn't perfect, but it will probably do more to bust up crony capitalism and promote truer free market capitalism than any other piece of regulation they've introduced in the last 30 years. Let's hope it passes as is.

Yahoo! PR Responds to Stock Sale Questions

dr.eric.jackson@gmail.com (Eric Jackson) — Tue, 15 Sep 2009 13:11:00 +0000

Yesterday, Jim Goldman of CNBC posted a story on his blog raising questions around seeming inconsistencies in Carol Bartz' comments last Thursday on Squawk Box in (1) saying she "didn't sell anything" earlier this year and agreeing that she "reacquired" them later and (2) that she wanted to keep Yahoo!'s stake in Alibaba.com (YHOO sold $150mm in Alibaba.com stock yesterday).

Here's a transcript of the part of the interview dealing with her publicly reported $2mm in stock sales between February and June 2009:

KERNEN: ALL RIGHT.YOU'RE GOING TO BE THERE FOR A WHILE, I GUESS, HUH, AT YAHOO!?YOU SELL SOME STOCK FOR TAX REASONS?ANY OF THESE GUYS --

BARTZ: I DIDN'T SELL ANYTHING, NO, NO, NO.

KERNEN: YOU REACQUIRED IT. RIGHT

BARTZ: YEAH.

KERNEN: YOU DO ANYTHING, YOU'RE GOINGTO SEE FROM SOME SHAREHOLDERS THAT ARE STILL MAD ABOUT JERRY YANG THAT YOU'RE NOT GOING TO STAY. THAT'S PROBABLY PART OF IT. SO YOU'RE LONG HAULER, RIGHT?

BARTZ: YOU KNOW, LISTEN --

KERNEN: YOU LOOK AT ME LIKE YOU USED TO LOOK AT HAINES.YOU'VE GOT THE SAME LOOK YOU USED TO GIVE HIM.

BARTZ: WELL, YOU KNOW, YOU'RE KIND OF TAKING OVER THE YOU KNOW WHAT SPOT.

QUINTANILLA: HE'S BEEN DOING THAT FOR A LONG TIME.

KERNEN: DOES IT BEGIN WITH AN "A"? FORGET IT. ANYWAY, THANKS, CAROL.AND HOPE TO SEE YOU SOON.

BARTZ: I'M AROUND A LONG TIME. I WILL ANSWER YOUR QUESTION. YES, I'M AROUND A LONG TIME.

Later in the day, Yahoo! responded to the criticisms Goldman raised in his post. I want to address their response to the stock sales question, as I was the one who initially raised this issue. Here's what Yahoo! PR said to Jim:

"As you may know, when RSUs (Restricted Stock Units) vest, income taxes are due similar to ordinary payroll. For RSUs, our programs work that rather than the employee paying us the taxes owed in cash and us remitting to IRS, the employee 'sells' the proportionate amount of shares to cover the taxes (for example 40 percent).

"For reporting purposes this looks just like a sale but it is only to cover taxes due to IRS, State of California, etc. This is common practice - not just Yahoo!. Carol has a substantial portion of her comp tied to stock price performance in the form of options and RSUs and so is aligned with shareholders."

There are several problems with this statement.

Yahoo! appears to be saying that they have a program in place that is rigorously enforced from top to bottom within the organization. If there is actually a policy like this in a Yahoo! employee handbook, it might go something like this:

"When you receive RSUs from us, you must immediately "sell" (although we don't really think of this as a sale here at Yahoo!, even though the SEC does) a portion of them to pay the taxes. If you want to pay taxes out of your pocket in order to keep all your RSUs, we will absolutely not allow it. It would be an administrative nightmare for us to have to change our internal record-keeping in order to comply with your request. If you come back to us and say it is a matter between you and the IRS/State of California etc., and you're happy to remit your taxes directly to those agencies, again, we must insist that you do not. Our Finance and Administration group must be an intermediary between you and any governmental tax agency -- federal or state."

Of course, this is absurd. Yahoo!'s policies don't operate like an Orwellian state. Orwellian state policies are not "common practice" at other companies either.

If any employee, at any company (not just Yahoo!), wants to remit taxes directly and keep all their RSUs, they are free to do so. Of course, many lower-level employees, who don't want to pay taxes out of their own pockets, decide to sell stock in the manner Yahoo! describes. However, as I said yesterday, this is uncommon for senior executives with the financial means to pay even a $2mm tax bill.

Carol Bartz exercised AutoDesk (ADSK) options in CY2007 worth $45mm. She's on track to make $19mm in 2009 at Yahoo! and possibly $30mm if Yahoo!'s stock prices gets up to $17.60 by December 1st and stays there for 20 trading days. She has the financial means to pay a $2mm tax bill if she wanted.

In my view, Bartz deliberately decided not to pay this tax bill and sell stock instead to cover it. Why?

I think part of the answer lies in the final sentence of Yahoo!'s statement: "Carol has a substantial portion of her comp tied to stock price performance in the form of options and RSUs and so is aligned with shareholders."

I think the issue is that Bartz is already over-incented with her options and vesting RSUs. What's the point of keeping another $2mm's worth of RSU stock, when you're going to be making $19mm in your first year -- when not much shareholder value has yet to be created for shareholders (especially ones like Carl Icahn, who bought in when the stock was in the mid-20s)?

And as an analysis I did a few days ago of Bartz' employment contract shows, if Bartz hangs around for 4 years (retention bonus), maxes out her possible annual bonuses (4x her base) which seems likely with Yahoo!'s board, and if Yahoo!'s stock is able to breach $25 for 20 trading days consecutively before February 1, 2016 (that's 7 years from now and Yahoo! was last at $25 1.25 years ago -- I'd say that's pretty good odds), she will take home $187mm for her 4 years of work at Yahoo!

I don't mind execs making lots of money for performing and creating lots of value for shareholders, but is that really a "stretch" goal to get the stock back to $25 in 7 years? Who needs another $2mm of RSUs, when it represents about 1% of your likely total comp package for 4 years?

This is concerning to shareholders who want executives to feel incented to really push hard for big potential gains. It's not in shareholders' interests if executives feel comfortable enough to dump shares because they already have a relatively low hurdle to jump over to get to a big payday. That might be what's going on here.

I suspect there's another reason at work here too and I'll outline it in more detail tomorrow. These particular RSUs that Bartz sold were part of her employment agreement with Yahoo! called "The Make-Up Grant" for unexercised options she left at AutoDesk as Executive Chairman when she came to Yahoo! in January.

I think she viewed these grants as a benefit that should be "grossed-up" by Yahoo! A "gross-up" is when an executive asks a company to increase the amount of an award or a benefit in order to cover the taxes that executive would have to pay on that original benefit or award. Tax "gross-ups" are perfectly legal, but highly objectionable (at least to me) as it makes public company shareholders responsible (instead of the executive) for paying taxes on an award or benefit that an executive is receiving.

Bartz received many gross-ups in her time at AutoDesk (and many other execs do too at many companies). I suspect (although no one can know for certain except Bartz) that she viewed this Make-Up Grant as something that should be grossed-up and probably didn't even hesitate in selling the $2mm in stock to cover the taxes.

However, more on that tomorrow.

CNBC: Bartz Blunder?

dr.eric.jackson@gmail.com (Eric Jackson) — Tue, 15 Sep 2009 01:44:00 +0000

CNBC: Does Carol Bartz Have a Credibility Problem?

dr.eric.jackson@gmail.com (Eric Jackson) — Mon, 14 Sep 2009 18:20:00 +0000

Published: Monday, 14 Sep 2009 | 12:40 PM ET

By: Jim Goldman
Silicon Valley Bureau Chief

CNBC.com

Yahoo CEO, Carol Bartz

Last week was a tough one for Yahoo CEO Carol Bartz.

It began when she found herself in the crosshairs of the perennial burr under Yahoo's saddle, in investor Eric Jackson, who mounted a blistering campaign to unseat former CEO Terry Semel from his job, and then set his sights on Jerry Yang after the bungled, $40-plus billion dollar offer from Microsoft [MSFT 24.985 0.125 (+0.5%) ].

In an article he penned for TheStreet.com, Jackson details some stunning insider selling at the company in a tome he titled "Yahoo's Pigs at the Trough," referring to the company's compensation plans as a kind of "personal ATM." Why the venom? Jackson found that insiders bought $67 million in Yahoo [YHOO 15.49 -0.10 (-0.64%) ] stock over the past years, but the vast majority of that was purchased by Carl Icahn (who sold a huge chunk - $189 million - over the past two weeks.) Take out the Icahn purchases and some small acquisitions by Chief Accounting Officer Michael Murray, and Yahoo insiders bought a paltry $103,700 in stock during the last two years.

Over the same period, insiders have "cashed out $233 million in stock," Jackson says.

The stock sales are telling and suggest, Jackson surmises, an executive team hardly putting their money where the mouths are, and the selling action is hardly a vote of confidence for the company.

As for Bartz, her well documented compensation package is front and center with all this: Within five months of being hired, Bartz cashed out $2 million in stock options she was awarded for taking the job. Her options are currently worth $16 million and she can sell them at any time. If shares reach $18, her package could be worth $40 million.

Bartz appeared on CNBC last Thursday and was asked about this in a cursory kind of way, to which she said she did so for "tax purposes," selling the stock to compensate for the tax bill she faced from the compensation package she received.

That did nothing to assuage Jackson who was galled by the fact that Bartz sold shares to cover her tax bill rather than using her own money to do so. Why dilute shareholders by selling stock into the open market to cover a tax bill connected to compensation so directly tied to the performance of that stock? It's a fair question that Bartz largely ducked. I sent a note to Yahoo seeking comment about Jackson's points and I didn't get a response.

But Bartz's appearance on Squawk raised another issue, centered on the company's investment in Alibaba, the Chinese search engine that has been an investment boon to Yahoo. Bartz was asked directly about this just four days ago on Squawk: Would the company sell its stake in Yahoo Japan? Would Yahoo sell its stake in Alibaba? Bartz said Japan adds revenue to the company, that it's a partnership and that "actually very much adds to our profit picture." Her answer on Alibaba was far more intriguing, especially with 20/20 hindsight.

"Alibaba is an investment. Frankly, when I first got here, I thought, 'Oh my gosh, we're not in China," she said. "Everybody's got to be in China. But we all know that China is a tough market to be in, especially media. And my firm believe is the Chinese government is much more interested in media companies being Chinese media companies. So I view this as a way to profit from the China internet market through Alibaba, so I view it frankly, as a very good investment for the future. We have no running power of Alibaba. That is, we have an investment only in them."

So, last week, the stake in Alibaba was absolutely intrinsic to Yahoo. Yet today, just a few short days later, we get word that Yahoo unloads a $150 million stake in the company. Yahoo still keeps its stake in the parent company, but the timing of the dot com sale is intriguing. I get the financials of it all: Yahoo paid $1 billion for a 40 percent piece of the Alibaba Group, which spun out its net operations in an IPO two years later that was right up there with Google's IPO frenzy. We know that a piece of Alibaba is worth something like $13 billion, so Yahoo's 40 percent stake has seen enormous return. That's good. What isn't good is that just a few days before a major stock sale, Bartz is touting Alibaba "as a very good investment for the future."

Jackson calls the timing "strange." And it is.

Look, I like Bartz, she's a great talker, a tough talker, and what I thought was a straight shooter. In her interview with CNBC, she said she hadn't sold anything, and that in fact she had re-acquired the Yahoo shares she sold. Yet there's only filings for her stock sales, and nothing indicating any purchases. And to tout Alibaba as a key investment for such a critical market for Yahoo and then just a few short days later unload $150 million worth of that same investment just seems awkward. I'm not drawing any conclusions here, nor am I making any accusations.

But Bartz ought to pay attention to these kinds of details and the way they're perceived. Her bold, aggressive personality trying to position Yahoo in the marketplace, rally the troops and generate new enthusiasm can certainly be effective; but there's another side to that sword, and saying one thing while doing another doesn't serve Bartz, Yahoo or their shareholders well.