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


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 OUTWARD LOOKING INWARD LOOKING Providing AccountabilityStrategy Formulation Monitoring and SupervisingPolicy Making PAST AND PRESENT FOCUSED FUTURE FOCUSED Source: F. Hilmer and R. I. Tricker, CONFORMANCE PERFORMANCE Framework for Analyzing Board Activities

9 Managed vs the Governed Corporation The Managed CorporationThe Governed Corporation The boards role is to hire, monitor and when necessary, replace management The boards role is to foster effective decisions and reverse failed policies Board Characteristics Power sufficient to control the CEO and the evaluation process Independence to ensure that the CEO is honestly evaluated and that directors are not compromised by conflicts or co-opted by management Board procedures that allow outside directors to evaluate managers dispassionately and effectively Separate the CEO and chair (or lead outside director) Board meetings without the CEO present Committee of independent directors to evaluate the CEO Independent financial and legal advisers to outside directors Explicit yardsticks for judging the CEOs performance Expertise sufficient to allow the board to add value to the decision-making process Incentives to ensure that the board is committed to creating corporate value Procedures that foster open debate and keep board members informed and attuned to shareholders concerns Required areas of expertise that must be represented on the board, such as core industry and finance Minimum time commitment of twenty-five days per year Large options package for directors Designated critic to question new policy proposals Regular meetings with large shareholders Board members free to request information from any employee

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

11 DIRECTORS DUTIES The 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 companys 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 FUNCTIONS The 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 companys 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 FUNCTIONS The 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 corporations 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 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 Enrons Rise and Fall

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

22 WorldComs Rise and Fall

23 WorldComs Board Didnt Prevent the Tragedy As the report prepared for the District Court of New York stated: WorldComs board didnt 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 Ebbers opening prayer. The Audit Committee most vividly exemplified the boards 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 WorldComs 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 Companys 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 boards 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 WorldComs Board Didnt have Control of the Agenda The Chairman of the Board did not have a defined role of substance, did not have control of the boards 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).


27 Specialized Board Committees Adoption CountryAudit (1995) Audit (1998) Remuneration (1985) Remuneration (1998) Nomination (1985) Nomination (1998) France – CAC 40 0%90%0%70%0%43% France- Privatized firms -100%_75%_66% Germany – Dax 30 0%7%0%3%0%7% Japan – Top 1,300 0% UK – FTSE %100%23%100%7%73% USA – S&P %100%30%97%5%87% Source: Goyer (2001). Corporate governance and the Innovation System in France Industry and Innovation, 8(2):

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

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

30 Comparative Analysis of Board Structure in 2003 (Selected Countries) USA (1) S&P 500 USA (2) Biotech USA (3) Silicon Valley CAN (4)UK (5) NL (6)ITALY (7) SPAIN (8) SOUTH AFRICA (9) Average board size Average annual board meetings >86.8 (11) Outside directors (%) (12) 57 (13)36 (16)34 Separation CEO & Chairman (%) Low6888 Average outside directors age Have three key committees (%) (10) Low (15)85 Directors retirement age 70/ Fully independent audit committee (%) Fully independent compensation committee (%) (14) Fully independent nominating committee (%) Low 6728 Average annual directors pay (cash retainer) $43,667$19,630$24,972Can $ GBP 35K E32KE41.4KE45.5KR62K Lead/Senior Director Formal annual board evaluation Sources: Data for these Spencer Stuart Board Indexes are taken from the most recent company proxy filings.

31 Corporate Governance Quotient Global Rating Criteria

32 ISS Corporate Governance Quotient I 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

33 ISS Corporate Governance Quotient II 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

34 The Learning Board Model Source: Garratt (2003)

35 Key Risks Areas Business riskLegislative riskPeople riskDisaster risk Asset management & resource planning. Business interruption. Change: organisational/ technical/ political. Construction activity. Feasibility studies. Foreign exchange operations. Information systems/ computer networks investments. Operations & maintenance systems. Transport (air, sea, road, rail). Project Management Purchasing contract mgmt Treasury and finance Design & product liability Directors & officers Liability. Employment procedures, training, discrimination & Harassment. Environmental issues. Fraud prevention/ detection/ management. Legislative requirements Occupational Health & Safety Public risk & general liability Ethics & probity Issues. Human, animal & plant health. Professional Advice. Reputation & image Issues. Security Contingency, disaster &emergency planning Fire detection/ fire prevention

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

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

38 Studies on Strategic Involvement of the Board Strength of Involvement DescriptionStudies PassiveStatutory boardsPro-forma (Pahl & Winkler 1974) Minimalist (Pettigrew & McNulty 1995) Statutory (Aram & Cowan 1986) Managerial control (Molz 1985) Ratifying (Wood 1983) Legalistic (Zahra & Pearce 1989) First-level Board (Ferlie et al 1994) Review boardsReview and approve (Molz 1985) Review and analysis (Zahra 1990) Second stage board (Ferlie et al 1994) Third party (Herman 1981) ActivePartnershipCollegial (Vance 1983) Shared leadership (Herman 1981) Participative (Wood 1983) Normative/strategic (Molz 1985) Maximalist (Pettigrew & McNulty 1995) Partnership (Zahra 1990) 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 Source: Data up to 2001, compiled from Hall B. (2003). Six Challenges in Designing Equity-Based Pay. Journal of Applied Corporate Finance, 15(3): 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 Composition of Median CEO Pay in the US ( )

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

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

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.


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