Governance Explainer Malus and Clawback

De Montessus was fired over allegations of an irregular payment of $5.9m related to the sale of the Agbaou gold mine in Ivory Coast to Allied Gold, a Canadian rival, in 2021. The money is thought to have been diverted to Burkina Faso.

He had been CEO since 2016 and was the ninth highest-paid chief executive in the FTSE 100 in 2022. His total remuneration in 2022 was $10.8m, $6.4m of which was related to long-term incentive plans (LTIPs) that vest over a three-year performance period. The same amount was awarded to him in LTIPs in 2021.

Full details of the impact of the termination on de Montessus’s remuneration will be disclosed in due course. The board may have the right to reduce or cancel awards under so-called malus and clawback provisions.

If the Endeavour board press ahead with this course of action, he won’t be the only high-profile executive to be hit with a leavers’ penalty recently. Just before Christmas, BP fired Bernard Looney as chief executive without notice after finding that he committed serious misconduct. This meant he will forfeit as much as £32.4mn in bonus, salary, pension allowance and share awards.

What is malus and clawback? 

Malus refers to a financial penalty which results in the reduction of ‘at risk’ remuneration, such as a bonus. ‘Malus’ is essentially a negative ‘bonus’.

Clawback refers to the cancellation of unvested or pending incentives and the recovery of incentives and bonuses that have already been paid.

Both were originally introduced for financial institutions, mainly in response to the financial crash in 2008.  However, they have now become common for LTIPs and executive bonuses in all sectors.  They originally applied in very limited circumstances, such as misstatement of financial results or gross misconduct by the participant, but the range of events which trigger these provisions has been gradually expanding.

What does the Corporate Governance Code say?

The 2024 edition of the UK Corporate Governance Code, which has just been published, states (paragraph 37): “Remuneration schemes …… should also include provisions that would enable the company to recover and/or withhold sums or share awards and specify the circumstances in which it would be appropriate to do so.”

The new Code wording also states that remuneration schemes and policies should permit the use of board discretion to override formulaic outcomes.

This would have helped avoid the situation that arose at the UK housebuilder Persimmon in 2018. The CEO, Jeff Fairburn, was handed pay and bonuses of £85m over a two-year period. It made Mr Fairburn the UK’s highest paid chief executive in 2017, up from £2.1m a year earlier.

The awards were the outcome of an uncapped 2012 long-term incentive plan based on dividend payouts and the company’s share price. However, in 2013, Persimmon’s share price received an unexpected boost from the launch of the government-subsidised Help to Buy equity loan scheme for homebuyers. This generated massive windfalls for Fairburn and his colleagues which could not be overridden as the pay formula was uncapped.

As a consequence of this heavily criticised scheme, the board and remuneration committee chair were replaced, and Mr Fairburn also left the company.