Cheniere Contends Holder Vote on CEO’s Share Award Valid

Cheniere Energy Inc. contends a stockholder vote approving a share grant to Chief Executive Officer Charif Souki, the U.S.’s highest paid executive, was properly tabulated and isn’t subject to a legal challenge by investors.

Officials of Cheniere, a Houston-based natural-gas exporter, set up the 2013 proxy vote on changes to the company’s executive compensation plan under New York Stock Exchange rules, which don’t count abstentions as negative ballots, the company’s lawyers said in a court filing. Four Cheniere stockholders sued over the balloting, saying it violated Delaware law governing the handling of abstentions.

Cheniere’s defense comes after the energy firm said it would drop a bid to have investors approve the addition of 30 million shares to its executive bonus pool. The move doesn’t affect the $133 million worth of shares granted to Souki last year as part of his $142 million pay package.

“A small group of rogue shareholders should not be permitted to override either the NYSE MKT Rules or the terms” of the executive-compensation plan, Cheniere’s lawyers said in a July 11 filing in Delaware Chancery Court.

The lawsuit underscores investors’ rising opposition to Cheniere’s executive-pay 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.

Investor Opposition

The company, which has never reported an annual profit, created the bonus pool by setting aside 10 million shares in 2011, using 9.9 million of them by the end of 2012, according to a company filing. The investors’ suits question whether the February 2013 vote, which added 25 million shares to the pool, was properly tabulated.

Cheniere officials moved June 23 to withdraw a proposal to add 30 million more shares to the bonus pool after investors sued over the 2013 addition.

Investors contend that if Cheniere had counted abstentions as no votes, as required by Delaware law, the 2013 addition to the bonus pool would not have received shareholder approval. That’s how the company treated them in three votes on proposed changes to the executive pay plan starting in 2005, shareholders say.

Disgruntled Cheniere stockholders are seeking to recover the 25 million shares awarded to executives in the February 2013 vote, which would cause Souki to lose nearly 90 percent of his compensation for that year.

NYSE Rules

Cheniere officials counter in court filings that Delaware law doesn’t require stockholder approval of changes to compensation plans and the courts defer to directors’ judgment on such matters. NYSE regulations, which Cheniere is following, require shareholder approval of such amendments, they said. The stock exchange is owned by Atlanta, Georgia-based Intercontinental Exchange Inc.

The company, which changed its bylaws in April to allow directors to decide how abstentions will be counted on a case-by-case basis, said it chose not to tally them as negative ballots because the NYSE rules focus only on votes cast.

“Pursuant to this standard, abstentions are disregarded,” Cheniere’s lawyers said.

According to an analysis of NYSE regulations by law firm Sullivan & Cromwell LLP, abstentions should be counted as negative votes in such circumstances. The analysis has not been introduced into court records.

Votes Cast

“The NYSE rules continue to provide that matters requiring shareholder approval under NYSE rules must receive the support of a majority of votes cast,” the firm said in a report published last year. “That is, votes cast ‘for’ must exceed votes cast ‘against’ plus abstentions.”

Peter Andrews, a lawyer for some of the shareholders who sued, declined to comment on the company’s filing.

Souki was the highest paid U.S. executive at a public company in 2013, according to summary compensation tables compiled by Bloomberg. Souki was paid $142 million last year, according to Cheniere’s regulatory filing on April 28.

Cheniere officials are using a new state law to ask Delaware Chancery Court Judge Travis Laster to find the shareholder vote approving the changes was valid. The law allows a judge to weigh the validity of a corporate move at an earlier stage in shareholder suits.

The case is In re Cheniere Energy Inc., 9766-VCL, Delaware Chancery Court (Wilmington).

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