June 9 (Bloomberg) -- Cheniere Energy Inc. Chief Executive Officer Charif Souki, the highest paid executive in the U.S., stands to lose 89 percent of his 2013 compensation if a shareholder lawsuit against his company succeeds.
The natural gas export company, which has never generated an annual profit, granted Souki 6.3 million stock units valued at $133 million in 2013. An investor alleged in a lawsuit filed May 29 in Delaware that a February 2013 vote allocating 25 million shares into a bonus pool, including 6 million awarded to Souki last year, was miscounted. The claim led the company to postpone its annual meeting by three months, according to a June 2 filing.
The lawsuit underscores an increasing level of opposition to Cheniere’s executive compensation plans since the company started holding Dodd-Frank Act-mandated Say on Pay votes in 2011. Votes against and abstentions to Cheniere’s non-binding Say on Pay referendums constituted 6 percent of votes in 2011, climbing to 36 percent in 2013. Now, Souki could face a retrieval of the majority of his $133 million stock bonus.
“If the court ruled that they didn’t have the authority to issue those shares, then it’s highly likely that it could force them to be returned,” said Robert Mittelstaedt, dean emeritus of Arizona State University’s W.P. Carey School of Business and a member of three public company boards.
Diane Haggard, a spokeswoman for Cheniere, directed comments to Katie Pipkin, a senior vice president in business development and communications at Cheniere. Pipkin didn’t respond to phone calls requesting comment. Peter B. Andrews, partner at Andrews & Springer LLC, declined by phone to comment on behalf of James B. Jones, the investor who brought the lawsuit.
Cheniere is asking investors to approve 30 million more shares -- valued at $1.99 billion as of June 6 -- for use in the bonus plan, according to its most-recent proxy statement. The company introduced the incentive pool with 10 million shares in 2011, using 9.9 million of them by the end of 2012, according to a company filing. The lawsuit questions whether the February 2013 vote, which added 25 million shares to the pool, was counted properly.
“Defendants improperly failed to count abstentions as ‘no’ votes, as was required by Delaware law,” according to the lawsuit. “The February 1, 2013, stockholder vote to increase the 2011 plan share reserve by 25 million shares did not gain the requisite majority needed for passage.”
In all matters except the election of directors, Delaware general corporate law says the “affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote” determines how the company will act, according to the state’s website.
“If the Cheniere’s bylaws were silent regarding abstentions, then abstentions count as no votes as a matter of law,” Michael Klausner, professor of law at Stanford University, said in an e-mail. “So, based on the plaintiff’s allegations, this appears to be a problem for Cheniere.”
The company and directors haven’t yet responded to the lawsuit.
Jones said in the lawsuit he’s trying to recover the 25 million shares awarded to employees in the February 2013 vote. Cheniere said it had 8.07 million shares left in the plan as of April 15, according to its proxy.
Cheniere’s previous share plan, approved by investors in 2004, allocated 1 million units for employee bonuses. The company amended the size of that pool three times -- boosting it to 8 million shares in 2005 including a stock split, 11 million in shares in 2006 and 21 million shares in 2009, according to company filings.
In those investor votes to approve the increases, abstentions were counted as votes against the proposal, Cheniere filings show. The proposals passed. Cheniere said abstentions in the February 2013 vote to increase the bonus pool wouldn’t be taken into account to determine the outcome, according to its proxy that year.
Jones’s suit claims Cheniere didn’t have the authority to count abstentions that way. If abstentions counted against the February 2013 proposal, less than 45 percent of votes cast would’ve been in favor of boosting the bonus pool by 25 million shares, according to the suit.
“The proxy doesn’t determine what the voting rule will be,” Keith P. Bishop, a partner at Allen Matkins and the former commissioner of corporations for the state of California, said in a phone interview. “It’s determined by the company’s articles, bylaws and applicable state law.”
Cheniere changed its bylaws in April to allow for the company to choose how abstentions will be counted on a case by case basis.
Souki owned 9.39 million shares in Cheniere after receiving the 6.3 million-share grant on Feb. 18, 2013, two weeks after the shareholder vote adding 25 million units to the bonus plan, according to a company filing at the time. Since receiving the grant, Souki has reduced his holdings by 30 percent, selling $97.7 million in stock, according to company filings. Souki used more than half of those sales to pay taxes, the filings show.
Souki’s $133 million stock award, composed of 6.3 million units, vests as construction goals and average Cheniere share prices are met, according to the company’s proxy statement. Because Cheniere’s current bonus plan doesn’t allow an employee to receive more than 6 million stock units in one year, the company pulled 300,000 shares from its previous pool to pay Souki.
Cheniere said 2.1 million of the awarded shares vested last year in equal installments in May and December, based on the company’s share performance. Another 1.26 million shares vested in May after Cheniere closed financing to begin construction on a portion of its export terminal in Louisiana, according to the filing.
Souki was the highest paid U.S. executive in 2013, beating Gamco Investors Inc.’s Mario Gabelli and Och-Ziff Capital Management Group’s James Levin, according to data compiled by Bloomberg.
Cheniere is on track to be the first company to export liquefied natural gas produced from the U.S. shale boom. The company’s Sabine Pass export terminal under construction in Cameron Parish, Louisiana, could ship its first LNG cargoes to overseas customers as early as next year, the company has said.
Cheniere surged to a record on June 2 after regulators proposed streamlining the approval process for LNG export projects, a step that would advance the company’s plans to expand its Sabine Pass facility. Cheniere agreed last week to supply LNG to Spain’s Gas Natural Fenosa LNG SL and Iberdrola SA from an export facility planned for Corpus Christi, Texas.
Shareholder advisory firms, including Institutional Shareholder Services Inc. and Glass, Lewis & Co., have advised stock owners to vote against Cheniere proposals that would allow the company to expand its executive compensation, calling the plans excessive.
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