Chesapeake Energy Corp. (CHK)’s decision to cut directors’ pay and other perks may save the company up to $1.65 million a year without addressing investors’ concern that the board failed to rein in Chief Executive Officer Aubrey McClendon’s borrowing and spending spree.
The board’s history of close ties to McClendon, of being paid more than directors at similarly sized energy companies and of rewarding the CEO even as Chesapeake plunged in value may hinder its ability to oversee a turnaround of the company.
The company’s flip flop on how much it knew about a program it approved that allowed McClendon to acquire a 2.5 percent share in each of the company’s wells -- and amass more than $846 million in debt from companies and banks also doing business with Chesapeake -- has sparked demands from some investors for new directors.
“They had an obligation to make themselves fully aware, to review and disclose these transactions,” said Michael Garland, executive director of governance for the New York City Comptroller, who controls pension funds that own 1.9 million Chesapeake shares and has proposed shareholders replace two of the board’s outside directors at the annual meeting next month. “The board has repeatedly failed to exercise independent oversight,” Garland said. Now, “They’re circling the wagons.”
Chesapeake has business ties to some of its eight outside directors, who’ve received benefits aside from their compensation, according to a Bloomberg review of past disclosures. Those benefits include hiring a director’s relatives, donating millions of dollars to the university overseen by a board member, and doing business with a company headed by its lead director.
National Oilwell Varco Inc. (NOV), a drilling equipment maker headed by lead director Merrill A. “Pete” Miller, has been paid more than $343 million by Chesapeake since 2009, according to a Chesapeake filing with the U.S. Securities & Exchange Commission.
The son and daughter-in-law of Frank Keating, a former Oklahoma governor and a Chesapeake director since 2003, worked for Chesapeake in real estate and land acquisition roles. Chip Keating was paid $251,515 in 2009 for working in real estate development for the company, according to a company filing.
Chesapeake has given more than $10 million in funding to the Oklahoma State University system, and board member Burns Hargis has been president of its flagship campus since 2008. The company has helped fund a new business school, a natural-gas training center, an endowed faculty chair, student scholarships and tickets for sporting events, according to filings and university publications.
Chesapeake also did business with BOK Financial Corp. (BOKF), where Hargis served as vice chairman and is now a director.
BOK is controlled by Tulsa billionaire George Kaiser. In May 2009, Kaiser filed a notice in Oklahoma County that he had lent money to McClendon and his wife. The loan was secured by their interests in two companies, including the entity that holds most of McClendon’s well interests, the filing shows. It doesn’t show the amount of the debt.
Frederick Whittemore, a director of the company from 1993 to 2011, loaned money to McClendon against his personal interests in the Chesapeake wells in 1998, according to an Oklahoma County filing.
Trusts benefiting siblings of another previous board member, Breene Kerr, were paid $6.39 million by Chesapeake in 2007 for oil and gas royalty interests on more than 5,750 net mineral acres. Kerr could not be reached for comment.
Question of Independence
While none of these relationships are illegal or exceed the rules set by the New York Stock Exchange, they raise doubts about the board’s independence, said Charles Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware in Newark.
“The modern trend is to avoid such questions,” Elson said. “Directors shouldn’t be in a position where they have to be asked” about their objectivity.
Chesapeake remains confident of the board’s independence, said Michael Kehs, a company spokesman. Chesapeake is handling all requests for comment from directors, Kehs has said.
“Each of Chesapeake’s directors has built a superb reputation based on impeccable credentials, independent judgment and unwavering integrity. We take great pride in our board.”
Even after cutting their own pay by 20 percent, directors will continue to be steeply paid. The company’s new plan, announced Friday, rewards directors 34 percent more than the average $260,752 in compensation received last year by board members at 15 other exploration and production companies on the Standard & Poor’s 500 Index, according to Bloomberg calculations.
Chesapeake directors now will receive $100,000 in cash and $250,000 in stock, and will no longer be allowed 40 hours of personal jet travel at company expense. The reported cost of non-cash or stock compensation to directors, including the jet travel, was $1.09 million in 2011, according to a company filing.
“A little pay cut and cutting their use of the jets, it’s a band-aid over a gaping chest wound,” Graef Crystal, a compensation expert and Bloomberg News consultant based in Las Vegas, said in an interview. “It doesn’t go to the heart of the problem.”
Generally Not Fully
The company initially defended McClendon’s practice of using his stakes in Chesapeake wells as loan collateral, stating April 18 that directors were “fully aware of the existence of McClendon’s financing transactions.” In an April 26 statement, directors’ backtracked, saying they were only “generally aware” of the loans but didn’t review or approve any individual transactions.
Concerns about the board’s oversight of the company and what directors knew about McClendon’s personal loans have led investors including Southeastern Asset Management Inc. and the California Public Employees Retirement System to call for reforms.
McClendon owed $846 million as of Dec. 31 on loans he accumulated to fund the cost of drilling, a requirement of the so-called Founders’ Well Participation Program. He took loans from firms that had business dealings with Chesapeake, including Wachovia Corp., prompting questions from shareholders and analysts over whether the deals constituted a conflict of interest.
The Securities & Exchange Commission and the Internal Revenue Service are investigating the program, which has been halted by the board. Directors last month said they will strip McClendon of his chairmanship as soon as they find an outsider to replace him in the role.
Chesapeake’s board, besides Miller, Keating, Hargis and McClendon, includes Louis A. Simpson, chairman of SQ Advisors LLC, Richard K. Davidson, former chairman of Union Pacific Corp., Charles T. Maxwell, chairman of American DG Energy Inc., Kathleen M. Eisbrenner, deputy chairman of Flex LNG Ltd., and Donald L. Nickles, former U.S. Senator from Oklahoma.
Chesapeake cut McClendon’s pay 15 percent last year to $17.86 million in response to shareholders’ concerns that he was paid too much. The company’s stock has fallen 45 percent since the beginning of 2011. Chesapeake rose 3.8 percent to $14.91 at the close of trading in New York.
McClendon’s reduced pay package included $13.6 million in stock awards, a $1.95 million bonus and $975,000 in salary, the Oklahoma City-based company said in an April 20 filing.
Excluding McClendon, directors in 2011 earned an average of $533,163, according to Bloomberg calculations, more than twice the $288,958 annual average of directors at Exxon Mobil Corp. (XOM), which is 40 times larger than Chesapeake in size.
Institutional Shareholder Services and Egan-Jones Proxy Services, which advise investors on governance and proxy votes, urged shareholders today to vote against Hargis and Davidson, the two outside directors up for re-election at the company’s June 8 annual meeting. Chesapeake needs “board-level change,” ISS said in a statement released today to clients.
Citing “egregiously weak board oversight,” Egan-Jones also advised investors to vote against Chesapeake’s executive pay plan because it is not tied sufficiently to performance.
The board’s compensation and business ties to Chesapeake may make it impossible for shareholders to trust that they can lead the company in a new direction, said Garland, of the New York City Comptroller’s office.
“Whether they were fully aware, or generally aware, at the end of the day it doesn’t really matter,” Garland said. “The only ties between a director and a company ought to be a directorship. When you have conflicts, it can compromise their independence.”
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