HD » Topics » 6 - Recoup Unearned Management Bonuses

This excerpt taken from the HD DEF 14A filed Apr 13, 2007.

6 – Recoup Unearned Management Bonuses

"RESOLVED: Shareholders request our board to adopt a bylaw for our board to recoup for the benefit of our company all unearned incentive bonuses or other incentive payments to senior executives to the extent that their corresponding performance targets were later reasonably determined to have not been achieved. If it is absolutely impossible for this to be adopted as a bylaw, then this would be adopted as a policy. The Securities and Exchange Commission said there is a substantive distinction between a policy and a bylaw.

This would include that all applicable employment agreements and incentive plans adopt enabling or consistent text as soon as feasibly possible. This proposal is not intended to unnecessarily limit our Board's judgment in crafting the requested change in accordance with applicable laws and existing contracts and pay plans. Restatements are one means to determine unearned bonuses.

This proposal is similar to the proposal voted at the Computer Associates (CA) August 2004 annual meeting. In October 2003 Computer Associates announced that it had inflated income in the fiscal year ending March 31, 2000 by reporting income from contracts before they were signed.

Bonuses for senior executives that year were based on income exceeding goals. Sanjay Kumar, then CEO, received a $3 million bonus based on Computer Associates' supposedly superior performance. Mr. Kumar did not offer to return his bonus based on discredited earnings. Mr. Kumar was later sentenced to 12-years in jail in regard to his employment at Computer Associates. There is no excuse for over-compensation based on discredited earnings at any company.

It is important to take a step forward and support this one proposal since our 2006 governance standards were not impeccable. For instance in 2006 it was reported (and certain concerns are noted):

The Corporate Library (TCL) http://www.thecorporatelibarary.com/ an independent investment research firm rated our company:

      "F" in Overall Board Effectiveness.
      "Very High Concern" in Board Composition.
      "Very High Concern" in CEO Compensation – $31 million.
      "High" in Overall Governance Risk Assessment

We had no Independent Board Chairman – Independent oversight concern.
Cumulative voting was not allowed.
There are too many active CEOs on our board with 7 – Over-commitment concern.
Our Directors still had a $1 million gift program – Conflict of interest concern.

Five directors held 4 to 10 board seats – Over-commitment concern.
Mr. Langone
Mr. Gonzalez
Mr. Hill
Mr. Jackson
Mr. Clendenin
Three directors had 28-years tenure – Independence concern.
Mr. Langone
Mr. Hart
Mr. Marcus

19


Three directors had potentially compromising non-director links to our company – Independence concern.
Mr. Langone
Mr. Hart
Mr. Marcus

The above status shows there is room for improvement and reinforces the reason to take one step forward now and vote yes:

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