BOARDS AND DIRECTORS THE POLITICAL MECHANISMS OF CORPORAT GOVERNANCE

1. CHAPTER 2 BOARDS AND DIRECTORS THE POLITICAL MECHANISMS OF CORPORAT GOVERNANCE

2. Outline • Role of Directors • Role of Board • The Agency Problem • Dependent vs Independent Boards • Risk Management • Executive Reward

3. BOARDS OF DIRECTORS: THE DNA OF CORPORATE GOVERNANCE

4. WHAT BOARDS DO? • Control Monitoring the management of the company and ensuring accountability. • Strategy Approving and monitoring the strategic direction of the company. • Counsel Providing advice and counsel to the company executives on critical matters. • Institutional Building institutional relationships with investors, stakeholders and the community Sources: (Carter & Lorsch (2004:67); Zahra & Pearce (1989); Johnson et al (1996); Daily et al (2003).

5. The Two Primary Functions of the Board

6. Levels of Governance (Dawson 2004) • Business Ethics/Principles • Procedures/Processes • Practices/Behaviour

7. Board Structure and Performance Source: Determinants of Board Performance Source: Epstein & Roy 2004, p. 4

8. Framework for Analyzing Board Activities OUTWARD LOOKING Providing Accountability Strategy Formulation PERFORMANCE CONFORMANCE INWARD LOOKING Monitoring and Supervising Policy Making PAST AND PRESENT FOCUSED FUTURE FOCUSED Source: F. Hilmer and R. I. Tricker, 1991.

9. Managed vs the Governed Corporation

10. Average Size and Composition of UK Boards Source: Higgs, D. (2003). “Review of the Role and Effectiveness of Non-Executive Directors”. London : Department of Trade and Industry

11. DIRECTOR’S DUTIESThe UK Company Law Reform Bill (2005) • Act within the powers conferred; • Promote the success of the company for the benefit of its members. Directors must have regard to the long term and wider factors such as relationships with employees, suppliers, customers and the impact of the company’s operations on the community and environment; • Exercise independent judgment; • Exercise reasonable care, skill and diligence; • Avoid conflicts of interest; • Not to accept benefits from third parties; • Declare an interest in a proposed transaction with the company.

12. Board Judgement The one element that is absolutely essential in the armoury of directors and boards is judgement: • “Legally, the board is the highest authority in the company, the ‘fountain of power’, yet top management naturally tends to exercise that power… • Board members are expected to provide critical judgement on management performance – which requires an in-depth knowledge of, and intimacy with the affairs of the corporation – and at the same time to assure that this judgement is independent – which requires detachment and distance…

13. Business Judgement Rule • In recognition of the complexity of business decision making, and in order to allow the essential element of risk-taking in business activity, case law in the United States and in many other jurisdictions recognises the business judgement rule that provides directors broad discretion to make decisions in good faith. • As long as there is not evidence of fraud, gross negligence or other misconduct directors will not be held responsible for a business judgement if it proves to be mistaken. • Unless there is evidence of fraud or negligence a court will not second-guess directors by holding them liable for any action attributable to a rational business purpose.

14. BOARD DUTIES AND FUNCTIONSThe OECD Principles of Corporate Governance(2004) • Reviewing and guiding corporate strategy, major plans of action, risk policy, annual budgets and business plans; setting performance objectives, monitoring and implementation and corporate performance; and overseeing major capital expenditure, acquisitions and other divestitures. • Monitoring the effectiveness of the company’s governance practices and making changes as needed. • Selecting, compensating, monitoring and, when necessary, replacing key executives and overseeing succession planning. • Aligning key executives and board remuneration with the longer term interests of the company and its shareholders.

15. BOARD DUTIES AND FUNCTIONSThe OECD Principles of Corporate Governance (2004) • Ensuring a formal and transparent board nomination and election process. • Monitoring and managing potential conflicts of interest of management, board members and shareholders, including misuse of corporate assets and abuse of related party transactions. • Ensuring the integrity of the corporation’s accounting and financial reporting systems, including the independent audit and appropriate systems of control are in place, in particular systems for risk management, financial and operational control, and compliance with the law and relevant standards. • Overseeing the process of disclosure and communications (2004:24-5).

16. Active Boards Active Boards • The ideal portrayal of the board is as an active, deliberative and decisive forum for the business: “Boards of directors collectively determine, through the decisions they make, the fate of the corporation…The principal work of a board of directors is to make decisions.” Leblance & Gillies (2005). • However boards are inevitably part-time, (due firstly to the necessary extensive external other commitments of directors that enhance the potential contribution they may make to the company; and to the fact that boards that begin to become nearly full-time inevitably stray into operational management, often losing their sense of objectivity and detachment in the process).

17. Passive Boards • There is much evidence that in the past boards of directors enjoyed a fairly passive existence, carrying out their duties, if at all, in a largely nominal way Mace (1971); Lorsch & MacIver (1989). “I served for one fateful year on the board of Penn Central. The education was fast, brutal and highly practical. At each Penn Central directors’ meeting, which only lasted one and a half hours, we were presented with long lists of relatively small capital expenditures to approve, we were shown sketchy financial reports which were rarely discussed in any detail. The reports were not designed to be revealing, and we were asked not to take them away from the meeting. We always had an oral report by the Chief “ (Louis Cabot, Harvard Professor)

18. The Enron Legacy

19. Enron Asleep at The Wheel • Fiduciary failure • High risk accounting • Inappropriate conflicts of interest • Extensive undisclosed off the books activities • Excessive compensation • Lack of independence

20. Enron’s Rise and Fall

21. Red Flags Known to Enron’s Board $100 $80 $60 $40 7 8 9 5 10 $20 11 6 3 12 2 4 13 1 14 $0 15 Jul-01 Jul-00 Jul-99 Jan-01 Jan-99 Jan-00 Mar-01 Mar-00 Mar-99 Nov-01 Sep-01 Nov-00 Sep-99 Nov-99 Sep-00 May-99 May-01 May-00 16 Source: US Senate Permanent Subcommittee on Investigations, May 2002 2123130 RED FLAGS –GA INVESTIGATIONS • Audit committee told Enron accounting practices “push limits” • Board Approves Fastow’s Code of waiver for LJM1 • Whitewing moved off-balance sheet with $1.5 billion • Board approves second Fastow waiver for LJM2 • LJM2 update: “Q41999: 8 days/ 6 deals/ $125 million”; • Executive committee approves third Raptor II • “Project Summer” to sell $6 billion in assets fails; • Board approves Raptor III/ IV • Board approves third Fastow waiver for LJM3; • Board told $27 billion in assets off-balance sheet • Board told total revenues jump from $40 billion in 1999 to • $100 billion in 2000: Audit and finance Committees review • LJM procedures and for Y2000 transactions • Fortune article questions Enron’s earnings and accounting • Board told 64% of asset portfolio “Troubled” or “Not • performing”; 45 million Enron shares at risk in Raptors & • Whitewing • Board told of $2.3 billion deficit in market value of Enron’s • international assets • Fastow sells interest in LJM to Kopper • Skilling resigns; Finance Committee told of $ 6.6 billion in • prepays and FAS 125 transactions • Lay defends use of SPEs in online session with employees • Finance Committee told of $800 million earnings write-down • from Raptors; Audit Committee told of closed • investigation into the Watkins letter.

22. WorldCom’s Rise and Fall

23. WorldCom’s Board Didn’t Prevent the Tragedy As the report prepared for the District Court of New York stated: • ‘WorldCom’s board didn’t do many things that might have prevented or limited the tragedy. • On average the board met quarterly, and the meetings were largely filled with formal presentations to the directors and other routine exercises, including CEO Ebber’s opening prayer. • The Audit Committee most vividly exemplified the board’s inadequate time commitment…The Audit Committee spent as little as six hours per year in overseeing the activities of a company with more than $30 billion in revenue, while the WorldCom Compensation Committee met as often as 17 times per year. • ‘going through the motions’ rather than developing a thorough understanding of the accounting policies, internal controls and audit programs in use by the Company…

24. WorldCom’s Board Lack of Independent Members • Despite having a separate Chairman of the Board and independent members, the board did not act like it was in control of the Company’s overall direction. • Rather than making clear that Ebbers served at the pleasure of the Board, and establishing reasonable standards of oversight and accountability, the board deferred at every turn to Ebbers. • Ebbers controlled the board’s agenda, the timing and scope of board review of transactions, awards of compensation, and the structure of management. He ran the Company with an iron control, and the board did not establish itself as an independent force within the Company.

25. WorldCom’s Board Didn’t have Control of the Agenda • The Chairman of the Board did not have a defined role of substance, did not have control of the board’s agenda, did not run the meetings and did not act as a meaningful restraint on Ebbers… • WorldCom met the formal standards, and yet the board did not take action to limit Ebbers’ power. • Formalities were usually observed, and yet no director said ‘no’ when the Ebers loans of $408 million came before the Board, no director said ‘no’ to grants of massive volumes of stock options, and • No director appears to have questioned Ebbers’ competence and fitness to serve as CEO until the disaster was unavoidable” (Breeden 2003:33-5).

26. THE REFORM OF BOARDS

27. Specialized Board Committees Adoption Source: Goyer (2001). “Corporate governance and the Innovation System in France 1985-2000’ Industry and Innovation, 8(2): 135-158

28. Management Controlling the Levels of Power NON - EXECUTIVES Chairman & Chief Executive Auditing of Investors E X E C U T I V E S Accounts relations Executive Board Remuneration Appointments The Transformation from Management Control to Independent Boards

29. EXECUTIVES Senior Audit Chairman Independent Committee directors Chief Executive Remuneration Nomination Committee Investors Committee Auditing of relations Accounts N O N - E X E C U T I V E S Executive Board Remuneration Appointments Source: Taylor (2004) The Transformation from Management Control to Independent Boards The Board Controlling the Levers of Power

30. Comparative Analysis of Board Structure in 2003 (Selected Countries) Sources: Data for these Spencer Stuart Board Indexes are taken from the most recent company proxy filings. www.spencerstuart.com

31. Corporate Governance Quotient Global Rating Criteria

32. Board Board Composition Nominating Committee Compensation Committee Governance Committee Board Structure Board Size Changes in Board Size Cumulative Voting Boards Served On – CEO Boards Served On – Other than CEO Former CEOs Chairman/CEO Separation Governance Guidelines Response to Shareholder Proposals Board Attendance Board Vacancies Related Party Transactions - CEO Related Party Transactions - Other than CEO Audit Audit Committee Audit Fees Auditor Ratification Financial Expert Charter/Bylaws Poison Pill Adoption Poison Pill - Shareholder Approval Poison Pill - TIDE Provision Poison Pill - Sunset Provision Poison Pill - Qualified Offer Clause Poison Pill - Trigger Vote Requirements - Charter/Bylaw Amendments Vote Requirements - Mergers & Business Combinations Written Consent Special Meetings Board Amendments Capital Structure – Dual class Capital Structure – Blank check preferred ISS Corporate Governance Quotient I

33. State of Incorporation State Anti-takeover Provisions Control Share Acquisition Provision Control Share Cash-out Provision Freeze-out Provision Fair Price Provision Stakeholder Law Poison Pill Endorsement   Executive and Director Compensation Cost of Option Plans Option Repricing Shareholder Approval of Option Plans Compensation Committee Interlocks Director Compensation Option Burn Rate Performance-Based Compensation Option Expensing   Board Performance Reviews Individual Director Performance Reviews Meetings of Outside Directors CEO Succession Plan Outside Advisors Available to Board   Director Ownership Executive Stock Ownership Guidelines Director Stock Ownership Guidelines Officer & Director Stock Ownership Mandatory Holding Period for Options Mandatory Holding Periods for Restricted Stock   Director Education Director Education ISS Corporate Governance Quotient II

34. The Learning Board Model Source: Garratt (2003)

35. Key Risks Areas

36. Strategic Role of the Board Direction Method Finance Structure Equity – Public and/ or private Vertical integration Internal Organic growth U- form M- form Geography, Product. Debt- Bank, public Horizontal integration Mergers and Acquisitions, Spin-off and divestitures Single plant, Single product Diversification Related or unrelated Retained earnings H- form Inter-organizational e.g. joint ventures, Franchising, Alliances. Diversification geographic Trade credit and networks Matrix

37. Knowledge of Day Knowledge of Day - - Management Nexus Management Nexus - - Executive Directors Executive Directors To Day Operations; To Day Operations; Focused Focused Communicate Communicate Implement Implement Decisions Decisions Non Non - - Executive Executive Strategy; Continuity; Strategy; Continuity; Long Long - - Term Planning; Term Planning; Expertise Expertise Oversight of Key Risk Oversight of Key Risk (“Outside”) (“Outside”) Areas Areas Directors Directors Perspective; Perspective; Conflict Conflict - - Sensitive Sensitive “ “ Independent” Independent” Objectivity Objectivity Functions Functions Directors Directors Source Kirkpatrick (2004) Typology of Directors

38. Studies on Strategic Involvement of the Board Source: Stiles & Taylor (2002)

39. Red Flags for Investors

40. Board Defences

41. The Incident of Board Entrenchment and Related Provisions in US Corporations (%)

42. Composition of Median CEO Pay in the US (1980-2008) 62 62 58 63 66 62 68 62 60 56 60 58 40 43 54 32 37 24 37 38 38 42 34 38 99 93 98 92 86 68 63 60 61 46 42 40 44 40 32 38 Source: Data up to 2001, compiled from Hall B. (2003). ‘Six Challenges in Designing Equity-Based Pay’. Journal of Applied Corporate Finance, 15(3): 21-23. From 2002, compiled from Salmans, C (2007). ‘Mercer Issues Annual Study of CEO Compensation at Large US Firms’. Mercer LLC 2009; Towers Perrin ‘2009 Proxy Statements Highlight the New Realities in Executive Compensation’; Institute for Policy Studies ‘Executive Excess Report 2008 and 2007’.

43. Executive Pay as a multiple of Worker Pay US (1990-2008) Source: United for a Fair Economy: CEO Pay; Institute for Policy Studies: Executive Excess Report 2008.

44. Comparison of CEO and Worker pay in the US1990-2005 ( in 2005 USD) 409.2 % Average CEO pay 326.6% 296.2% 260.6% S&P 500 Index 106.7% Corporate Profits Average worker pay 4.3% Minimum wage -9.3% Source: Institute For a Fair Economy (2006) “Executive Excess”, Washington D.C. Institute For Policy Studies.

45. Conclusions • The analysis of the political mechanisms of boards and directors reveals a great divide between the legal duties and functions of the board, and the actual performance of those duties and functions. • Passive boards were prevalent in the past, and the more recent failures at Enron, WorldCom, Tyco and other major corporations, indicate boards completing the formalities rather than the substance of their office. • Whether boards can be effectively reformed remains an open question: greater effort is now being made to achieve board independence and best practices but fundamental tensions still exist. • Can boards adequately fulfill both the monitoring role and the strategic leadership role that is expected of them?

46. Conclusions • To whom is the board ultimately responsible – simply shareholders or a wider constituency of stakeholders? • How can boards offer support for CEOs at the same time as ensuring they do not run out of control? • In the Anglo-American world boards have patently failed to restrain the inflation in executive remuneration which poses a serious question regarding the authority and integrity of boards. • Perhaps though, the era of the all-powerful CEO was a temporary phase born out of the longest bull market in history. • The institutions are now playing a more pivotal role in corporate governance, and the implications for corporate governance of this new development are presently playing out.