Nuts and Bolts: Corporate Secretary and Corporate Governance 1 Introduction & Biographies Holly Loiseau Gena Ashe Cydonii Fairfax Wendy Shiba 2 Part I Nuts and Bolts of the Corporate Secretary Position
3 Role Skill Sets of the Corporate Secretary Soft Skills and Success Attributes o Analytical, problem solving skills o Self-confidence, empathy, and leadership skills o Integrity, discretion, tact, professionalism, grit, and guts o Management, organizational & networking skills tied to the basic purposes you support o Willingness to work hard and stay flexible/creative do what it takes to get their job done right o Good communication and interpersonal skills o Working knowledge of corporate and securities law o IT familiarity o Understanding of the legal system as it affects business o Ability to foster and maintain cooperative relationships with stakeholders 4 Scope of Corporate Secretary
Function Required by State Law: A corporate secretary is required by state corporation laws. For example, Section 142 of the Delaware General Corporation Law provides: 142. Officers; Titles; Duties; Selection; Term; Failure to Elect; Vacancies (a) Every corporation organized under this chapter shall have such officers with such titles and duties as shall be stated in the bylaws or in a resolution of the board of directors which is not inconsistent with the bylaws and as may be necessary to enable it to sign instruments and stock certificates which comply with sections 103(a)(2) and 158 of this title. One of the officers shall have the duty to record the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose. Any number of offices may be held by the same person unless the certificate of incorporation or bylaws otherwise provide.
5 Scope of Corporate Secretary Function Bylaws set duties Bylaws set forth corporate secretarys powers and duties Powers and duties set forth in the bylaws typically reflect the bare minimum and provide maximum flexibility for the position. The Board of Directors shall appoint a Secretary of the Corporation to serve at the pleasure of the Board of Directors. The Secretary of the Corporation shall (a) keep minutes of all meetings of the stockholders and of the Board of Directors, (b) authenticate records of the Corporation, (c) give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and (d) in general, have such powers and perform such other duties as may be assigned to him or her by these Bylaws, as may from time to time be assigned to him or her by the Board of Directors or the Chief Executive Officer and as may be incident to the office of Secretary of the Corporation. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then the Board of Directors may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officers signature. The Secretary shall see that all books, reports, statements certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be. 6 Scope of Corporate Secretary Function Typical Roles & Responsibilities Responsibilities to the Corporate Group Maintain corporate records related to the share registry, dividends, shareholder meetings & board meetings Attest to certain corporate departments Ensure compliance with corporate charters & by-laws Manage corporate formalities of subsidiaries Stay current on evolving governance laws, regulations, listings rules & norms of effective governance practices Manage compliance with corporate governance-related federal
and state laws and regulations Oversee securities market listings and compliance with listing standards 7 Scope of Corporate Secretary Function Typical Roles & Responsibilities (Cont) Responsibilities Related to Shareholders Provide notice of & organize annual shareholders meeting Organize & contribute to preparation of proxy statement Manage stock transfers & dividends Communicate with shareholders as appropriate Stay current on changing expectations of shareholders
Support shareholder engagement on governance issues Maintain relations & negotiate with proxy advisors 8 Scope of Corporate Secretary Function Typical Roles & Responsibilities (Cont) Responsibilities to the Board Provide notice of and organize board & committee meetings Help ensure that appropriate matters are brought to the attention of the board Organize and assist in compiling and preparing board and committee materials Record & maintain the minutes of board and committee meetings Support the work of the board and its committees, including by: Advising on governance-related matters; and Facilitating flow and availability Advise board on corporate governance duties & practices and shareholder interests Support the work of the board leader(s) including the independent lead director or independent chair Support the non-management & independent directors
Support individual directors as requested 9 Scope of Corporate Secretary Function Typical Roles & Responsibilities (Cont) Responsibilities Related to CEO & Management Support work of the CEO and management team in relation to: Shareholder engagement; Board agenda and information flow; Compliance with governance-related laws, regulations and listing standards; and Evolving norms of effective governance practices Advise management on corporate governance issues and shareholder interests 10 Scope of the Corporate Secretary Function Typically Reports to CEO or GC
Appointed by board Member of management team hired, promoted and compensated based on recommendations or decisions of CEO or other management Directly report to the CEO or GC but some have formal reporting obligations to the board If corporate secretary is also the GC, typically reports to the CEO, but may also report to board chair or lead independent director 11 Scope of the Corporate Secretary Function Role Combinations & Potential Conflicts of Interest Dual Corporate Secretary/General Counsel Role
Inability to allocate sufficient time to each area of responsibility Different organizational reporting and associated responsibilities Potential confusion about which communications are privileged Corporate secretarys reporting to GC may conflict with duty to not disclose sensitive board information Growing confusion about the role of in-house lawyers exacerbates potential dual corporate secretary & GC role considerations 12 Scope of the Corporate Secretary Function Role Combinations & Potential Conflicts of Interest Conflicts Between GC/Corporate Secretary and Compliance Roles o Many companies have a stand-alone chief compliance officer. Ongoing debate about whether combining role of in-house counsel and CCO is
prudent o Key distinctions Compliance officers: o Reduce company risk by focusing on both ethics and legal compliance, rather solely by law o Prevent misconduct o Uncover legal or ethical misconduct o Neutral fact finder o Key driver of companys culture of ethics and compliance (not just legal compliance) o Oversee ethics and compliance program, including developing and implementing internal policies, training and communication, monitoring and auditing, staffing and other resources, etc. 13 (Cont) Role Combinations & Potential Conflicts of Interest Conflicts Between GC/Corporate Secretary and Compliance Roles o Key distinctions General Counsels: o Law-focused companys legal defender and advocate
o Seek to mitigate or avoid legal risks o Narrow focus on compliance o Highly capable lawyer who is able to advise on complex legal decisions and manage legal staff. 14 Practice Tips for Key Roles & Responsibilities Annual Organizational Calendars Corporate secretary typically leads process of creating organizational calendar each year identifying tasks to be conducted and matters addressed at each regularly scheduled board meeting. Annual shareholders meeting and regularly scheduled committee meetings should also be included. Not typically approved by the board, but corporate secretary will be interacting with and getting feedback from the lead/presiding director, independent chair and/or committee chairs as the calendar is being created. Regardless of format, preparing the calendar requires a good understanding of the board and committee activities over the course of a calendar year. Good sources of information: o Corporate governance guidelines o Bylaws
o Committee charters o Past years board and committee minutes 15 Practice Tips for Key Roles & Responsibilities Board Meeting Calendars Separate from the annual calendar of board-related activities, simply identifies future meeting dates. Proposed meeting dates identified by the CEO with input from the board chair or lead director, in coordination with the corporate secretary before being presented to the full board. Alternatively, corporate secretary may circulate tentative dates to directors in advance of including a meeting schedule in the package for an upcoming board meeting.
Key is to ensure that each director or member of management who participates in meetings is notified in advance and can confirm their ability to attend. Normally prepared one year in advance and the approval of the meeting calendar can occur at various times during the companys fiscal year. Once approved, the calendar rarely changes because of difficulties in coordinating new dates among the directors, if an unanticipated issue arises then a director will simply miss a meeting. 16 Practice Tips for Key Roles & Responsibilities Scheduling Committee Meetings Formally, in committee charters or governance guidelines, scheduling of meetings is the responsibility of the committee chair. Practically, the corporate secretary manages the process, seeking the
chairs approval before presenting dates to other committee members. The individuals who need to be consulted regarding meeting dates will depend on the committee and meeting agenda. When scheduling committee meetings companies should consider content of the agenda; planned activities such as offsite board meals; and directors schedules. o This can make multi-day meetings impossible. Planning the time to devote to a meeting can depend on factors such as: committees responsibilities and workload; items on the meeting agenda; and needs of other participants (e.g. auditor sessions). 17 Practice Tips for Key Roles & Responsibilities Developing Board Meeting Agendas Critical, sets the stage for the information and materials that will be delivered to directors and the matters that will be addressed and acted
upon by the board during and outside of board meetings. In most cases, the corporate secretary oversees the agenda and associated meeting materials. Overseeing includes preparing and circulating (4 6 weeks in advance on average) a series of draft agendas based on the corporate secretarys review of the organizational calendar and input from the CEO and the independent chair and/or lead director, as well as any other key players opinions. Once the draft agenda is approved by key players, the corporate secretary drafts the final agenda and prepares for review the accompanying board book materials. Although the corporate secretarys role in preparation and oversight is crucial, the corporate secretary rarely makes a final decision as to content. 18 Practice Tips for Key Roles & Responsibilities Preparing Board Meeting Materials
The corporate secretary and/or GC are typically relied on by the CEO and lead director to determine the agenda and identify what board materials should be included. We have board materials to provide a record of informed decision making and providing information in advance of a board meeting ensures that the board spends more time discussing and deciding. Streamlining Board Materials Process Explain the purpose of the materials to those working on them Involve the team to set the calendar, which can prevent people from doing one-off/off-cycle materials, providing a cadence of the companys process. Repurpose content, but make sure to get clearance and build approvals into the process Impose presentation guidelines (for consistency and readability) Be organized, clear about how work will be divided and reviewed Dont overwhelm directors with copious amounts of material o Send less, but better 19 Practice Tips for Key Roles & Responsibilities Implementing Director Orientation Program
Formally, developing the director orientation program is left to the full board. In reality the corporate secretary drives the director orientation process. The corporate secretary prepares an orientation program for the boards review, often first vetted by CEO, nom/gov committee, or the independent lead director or board chair. Once finalized, corporate secretary implements and facilitates the program. Orientation should be catered to the needs of company and incoming director. Facilitating director education Most prevalent approaches: o education provided in-house by management or third parties o company reimbursement for encouraged director attendance of outside programs (harder for full board to attend as a group) Corporate secretary typically organizes and implements the program, which can include giving directors very advance notice of programs to increase attendance. o Corporate secretary should instruct directors on how to express interest in a particular program so that corporate secretary can make arrangements. If the board delegated responsibility for education to the nom/gov committee, then the corporate secretary will normally vet proposed programs with that committee before they present to the full board. Corporate secretarys diligence of potential programs may include previewing a program before recommending it to the committee/board. 20
Responsibilities Assisting in Board Evaluations Most boards conduct self-evaluations (annual evaluation required by NYSE, not by Nasdaq, but most companies conduct as it is best practice). Ways to conduct evaluations: o Written questionnaires o Software or online programs with questionnaires or surveys o Peer evaluations o Group discussions led by a designated director o Employee or outside facilitator Questionnaires are the most common tool by which such evaluations are conducted, but many companies also use outside parties. Ensure that the evaluations are noted in the board organization calendar so that they are conducted at least annually, as best practice. The corporate secretarys involvement tends to be greater when the evaluation is done in-house. For example, if using a self-evaluation questionnaire, responsibility may include preparing questionnaire forms for committee or board review/approval,
circulating questionnaires, summarizing and communicating anonymous results to committee chair, and preparing any resulting board-approved action plans. With an outside party, corporate secretary usually assists, coordinates, or facilitates with the third party and the nom/gov committee. 21 Preparing the Board Minutes Corporate Function & Statutory Requirements Minutes serve many purposes, such as: Providing an official record of discussions, decisions, and actions taken by the corporations governing body; Serving as a resource for identifying or communicating to outside parties actions taken by the board; Confirming a record of director diligence Providing evidence of the corporate existence of the company; and Preserving company history
The Model Business Corporation Act 161 provides that: A corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors and A corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time. In addition, many state statues require that minutes be kept. oE.g. the DGCL 142(a) provides that One of the officers [of a Delaware corporation] shall have the duty to record the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose. In the absence of statutory requirement, lack of written minutes does not affect validity of board/committee action. oPractically, minutes are normally prepared/permanently retained. 22
Preparing the Board Minutes Preparing the Minutes Points to remember Minutes constitute a companys history of board/committee actions and are vital legal records. In a time of increasing litigation by shareholder activists and scrutinizing of the corporate business community, it is important that minutes provide an accurate representation of meetings. o Less is more does not necessarily apply as minutes are records of how directors exercised their business judgment at a meeting to either take action or refrain from action. o Minutes reflect completeness of information considered by the Board and thoroughness of the process by which directors reached conclusions. Corporate secretaries should ensure that the minutes clearly: o record exactly what discussions or other matters occurred during the meeting; o record what actions were taken; o provide identification in the minutes of any documents incorporated by reference or attached to the minutes; and o note if any limitations were placed on the action taken or authority granted such limitations need to be explicit in the written resolution(s). Although the minutes are the official record of actions taken by the corporation, all of the records created before/during/after the meeting are business records of the company subject to discovery in litigation. o Such documents should be retained and discarded in compliance with the companys
approved document retention policy. 23 Preparing the Board Minutes Preparing the Minutes The Meeting Agenda There is little statutory, regulatory, or case law guidance on what should be in the minutes or the form they should take. o In practice, they normally cover each item on the final agenda for the board or committee meeting as well as any significant discussion of other items related to performance by the board or committee of its duties. The agenda can be referred to prepare an outline of the minutes
which can then be filled in during meeting. A Minutes Checklist Date and location of meeting If the meeting is regular or special Recital of notice having been given or waived Meeting beginning time (can also note the end) Attendance by directors (and absence) Recital of quorum being present Names of person chairing the meeting and the person taking minutes Attendance by management or consultants (names and titles) Indication of action taken Comings and goings of directors after start of meeting Resolutions adopted Reference to briefing materials distributed in advance or presented during meeting Note if executive sessions were held
24 Preparing the Board Minutes Preparing the Minutes Key Tips Because minutes are the official record of what actions were taken, and not taken at the meeting, its important that minutes list key discussions and resolutions accurately. Once minutes have been approved, all draft documents should be discarded in compliance with the companys approved document retention policy. Once the minutes are drafted, prior to distribution for comment, review the checklist to confirm each item is included. 25 Preparing the Board Minutes Drafting Practices Methodology oMinutes are a record of what occurred, not a transcript. oCan use computers or tablets but many corporate secretaries still write notes in longhand. Data recorded on a computer can be retrieved in litigation and used to impeach directors testimony or the minutes themselves this is a significant risk, as wording of
notes during the meeting may differ slightly from final minutes. oDeleting a document does not make it irretrievable. Special consideration should be given to saving electronic documents. oMust use care in note-taking during meeting, since any notes are discoverable. Avoid personal/irrelevant notes and write neatly. Ensure that corporate secretary notes and notes of individual directors are retained and disposed of in accordance with the companys document retention practices. Director Notes oIdeally, directors should be advised to refrain from taking notes, that any notes they take belong to the company, and that all such notes will be collected at the end of the meeting. This is because individual directors records do not reflect official acts of the company and the company cannot control their retention and limit disclosure if there is more than one official set of company records. Practically, it is difficult to prevent directors from taking notes and notes can be useful. 26 Preparing the Board Minutes Drafting Practices Dealing with issues of content o Corporate secretary has responsibility of deciding what to record and what parts of the discussion are relevant. o Corporate secretary must be alert to capture the substance of
discussions and key words in formulating motions on significant transactions (such as a merger). o Must also be alert in case any matter addressed at the meeting becomes the subject of dispute or litigation. o Corporate secretary should have a copy of any material distributed for consideration at the meeting, for later destroying or filing with the minutes. o The corporate secretary should check with others as to what was stated because it can be difficult to keep track of all the matters being discussed, all the directors views on such matters, and the various side conversations that take place. E.g. Corporate secretary consults the CFO when drafting financial report and the Chief of HR when drafting compensation resolutions. 27 Preparing the Board Minutes Drafting Practices Exposure Risk o
o o o o o Corporate secretary should keep in mind that minutes are discoverable in litigation and enforcement actions, care should be taken to ensure that they are accurate, complete, contain no unnecessary information, and correspond to an evidentiary record appropriate for public disclosure. Minutes should be edited to make certain no future traps or waivers of privileges or privacy rights are created. Pay particular attention to tax areas. Privileged matters, such as advice from counsel regarding litigation should be dealt with appropriately. Minutes should be consistent with official forms filed during the transaction. E.g. securities filing minutes should be consistent with MD&A, 10-K, and Annual Report. What is not recorded in the minutes can also present risk, it can still be discovered in litigation if it happened.
Corporate secretaries should be prepared to explain that off the record requests should be made only about irrelevant matters. Because, someone can testify about the matter even if it was not recorded. Minutes are considered prima facie evidence of what occurred at the meeting. The more incomplete or ambiguous the minutes are, the broader the extrinsic evidence the court will allow to clarify or explain matters/motions. 28 Preparing the Board Minutes Drafting Practices Choosing Words Carefully o Minutes serve to confirm participants common perceptions of and consensus on meeting events, keeping the language as clear as possible serves this purpose. o Language should be simple, clear, and unambiguous. o Descriptive terms should not be value judgments. o Corporate secretary should remain a neutral recorder of the proceedings. o Advisable to avoid internal company or industry terminology or usage, unless essential to accuracy. o Avoid undefined acronyms, as this will make minutes easier to understand in the future, when common understanding of particular
acronyms may have disappeared. 29 Preparing the Board Minutes Drafting Practices Writing minutes for the executive session o Directors may meet without members of management, and recording these minutes can be challenging. o If no topics were scheduled for the session, the corporate secretary can check with the director who led the discussion and ask if there was anything discussed that should be recorded. If not, minutes might read: All of the members of management left the meeting and the directors met in a private session. No action was taken. o If the director indicates a topic should be recorded, minutes might read: All of the members of management left the meeting and the directors met in a private session. Among other things, the directors discussed the CEOs performance metrics and the board succession planning process. No action was taken.
o If an action was taken during the executive session, the corporate secretary will need to talk with the presiding director in more detail so that the resolution can be accurately recorded. 30 Preparing the Board Minutes Style & Special Circumstances Consistency v. Flexibility o Style is determined in a large part by the personal preferences of the Chairman of the Board, the Corporate Secretary, or other senior officers, directors, and tradition. o Consistency is key Any change in style should be carefully considered, because changes may appear more significant then they actually are. Consistency will minimize questions regarding the differences in detail and avert confusion from stylistic variation. Special Circumstances
o Minutes should be consistent, but some events (e.g. merger or acquisition) may be considered material and require a greater amount of detail which will help demonstrate that directors met their duty of care under the business judgment rule. In these cases, exercise of judgment can be included in the minutes expressly. However, the corporate secretary should state facts rather then drawing conclusions. 31 Preparing the Board Minutes Style & Special Circumstances Fair amount of case law on what to include in minutes. o As a result of, Smith v. Van Gorkum (1985) in the DE Supreme Court, most corporate secretaries now make sure that corporate minutes document: Indication that board consulted with members of senior management and other knowledgeable individuals, particularly in-house counsel Indication that the board consulted with experts
Indication of other studies made and their distribution to directors with ample time for review and discussion Indication that documents were considered and notation that such documents were distributed to directors with ample time for review and discussion Indication of efforts made by the board and by experts retained to find the highest stockholder value (if the sale was considered appropriate and in the company and stockholders best interests) Indication that the board acted in a business-like manner and that ample time was given for consideration of the offer/alternatives, in addition to reports and documents Many of these things need to be considered by the board and documented in transactions other then of M&A activity 32 Preparing the Board Minutes Writing Resolutions When are resolutions required o Generally drafted by Corporate Secretary unless complex/technical then may be drafted by outside counsel or others with knowledge of the form or content required.
Some resolutions must be in a form required by a third party, so generally reviewed by them before presentation to the board. o Purpose of a properly drafting resolution is to accurately and completely describe an action by the Board. Therefore, may not be concise, simple, or easily readable. o A clear and concise statement of the action of the board in a formal resolution minimizes ambiguity or misunderstanding. o A formal resolution is not the only way to bind the corporation or give authority to bind, evidence can be introduced that the board took the necessary or appropriate action, even if no formal resolution was recorded in the minutes. Corporate Secretary can also decide to not make a formal resolution, and can just indicate that the board decided to take the action/make the decision after discussing the matter. 33 Preparing the Board Minutes Writing Resolutions When are resolutions required (Cont) o Although there are no absolute rules, formal resolutions are generally
considered required or appropriate with respect to the following matters: When required by statute, charter, or the companys by-laws; When the secretary is required to furnish evidence that the board performed a certain act; Establishment of board committees and their authority and responsibilities; Dividend declarations; Matters in excess of managements authority, such as real estate matters, mergers or acquisitions, or large capital transactions; When the matter pertains to an amendment to either the charter or by-laws of the corporation; and When a third party requests that the action taken be evidenced in a formal resolution. 34 Preparing the Board Minutes Writing Resolutions (Cont) Simplification o o
o Traditional preambles to resolutions are used infrequently, unless required by a third party. For many, it is sufficient to say RESOLVED, Whereas clauses can be used to introduce complicated resolutions or provide background information to fully convey boards basis for actions, lengthy and numerous Whereas clauses are not recommended. Resolutions themselves should contain all vital facts. Consistency in use of such clause will prevent unintended inferences from being drawn from the presence/absence of Whereas clauses. Resolutions can be written in plain English, without use of Resolved format. E.g. The board of directors of [ABC Corporation] authorizes and determines: Incorporation by Reference o o To avoid lengthy minutes, resolutions may specifically identify and incorporate
documents by reference or otherwise refer to them or to brief memoranda explaining them, with documents themselves and any supporting papers retained as part of the record of the meeting. Many corporate secretaries prepare resolutions in advance, clearing them with counsel or third parties, so they can be included in the materials for the meeting. 35 Preparing the Board Minutes Noting Reports, Dissents, Approvals, etc. Reports o Management may wish to have a report permanently recorded in the minute book if it is especially important or not too lengthy, or if it contains crucial information. In these cases, the Corporate Secretary should: Mark the report as Appendix A or Exhibit A to the minutes Refer to it in the body of the minutes Attach it to the minutes o A copy of the document should incorporate the draft of the minutes when sent for review to those within the company. o A copy of the document should be made available for anyone, who
subsequent to approval of the minutes, reads the minutes. o Great caution should exercised in selecting documents for incorporation because they become part of a permanent record. Approval of minutes also ratifies the contents of the documents attached unless a limited purpose has been explained. Without such an explanation, a document which is later argued/proven to be wrong or misleading could result in unintended consequences. 36 Preparing the Board Minutes Noting Reports, Dissents, Approvals, etc. Committee Reports o In the past, minutes contained little detail concerning committee reports, other than matters requiring board action. In recent years, because of the increasing importance of committees under the Sarbanes-Oxley Act and otherwise, more and more companies describe committee reports in the same amount of detail as the description of any other important report made to the board.
o When numerous reports are presented, it can be mentioned that the Committee reviewed and discussed a report and the name of the report can be provided as well as the title of each section or (PowerPoint) slide heading. Dissents o Most Board resolutions are adopted unanimously. o In the case of a non-unanimous vote or abstention, the name of the dissenting or abstaining voter should be listed in the minutes. Some dissenting directors may insist on having their dissents in the minutes, especially if the believe majoritys actions to be improper. 37 Preparing the Board Minutes Noting Reports, Dissents, Approvals, etc. Conflicts of Interest o Directors normally have a legal obligation to declare any interest they
or their relatives/associates have in a matter being brought before the board. o The minutes should state the nature of the matter discussed and, if required or appropriate, that the interested director abstained. It might also be appropriate to describe the nature of the conflict. Seconders o The names of proposers and seconders of board and committee resolutions are generally omitted in the minutes. Informal Approvals o When no vote is taken on a question and the Chairman obtains the consensus of the directors in an informal manner, it is sufficient to note this consensus in the minutes with a general phrase such as: The directors expressed their approval of and to follow with the facts. 38 Preparing the Board Minutes
Committee Minutes Points to Remember o o o Since committees typically carry out more focused reviews of matters then the board as a whole, their minutes may be more detailed than the board minutes. Nonetheless committee minutes are discoverable, and should be written understanding that they may become evidence against the company/directors in litigation. Committee actions are normally reported to the board during the next regular meeting. Committee minutes are approved by the committee but rarely presented to the full board for approval, although some companies present them to the board for informational purposes. Because the board frequently relies on the recommendations of committees, appropriate level of detail should be used to demonstrate that committees have exercised sound business judgment and have diligently exercised the discretion
granted to them by the board. Minutes of 3 major board committees need to reflect that the committees have carried out their responsibilities as outlined in committee charters and applicable SEC regulations and exchange listing standards. 39 Proxy Statement and the Annual Meeting Proxy solicitation rules regulate communications in which the Company solicits proxies from its shareholders so that shareholders can exercise their voting rights without having to physically attend the annual meeting. Proxy statement filed with SEC on Schedule 14A: o Contains information concerning matters to be considered at annual meeting of shareholders, including director biographies
o Compensation, discussion and analysis and related tables have become focus o Includes information about the corporate governance structure of the company o Has become a communication tool with investors and proxy advisory firms o Must include a proxy card If incorporation by reference has been used in connection with the Form 10-K (including executive compensation) and must be filed within 120 days of end of fiscal year. May be delivered through notice and access (other than in business combinations). 40 Subsidiary Management Ensures adequate supervision of subsidiaries to facilitate board
oversight and mitigation of risks Increased regulation and focus in recent years on the governance and management of all group entities Failure to exercise good governance throughout the organization can result in increased costs and reputational damage Use of technology in governance (i.e. board portals, entity management systems, document management, automated approval process) Protect the corporate veil o Maintain corporate separateness o Hold annual meetings and obtain required approvals o Document all intercompany transactions Understand differences between jurisdictions 41 Part II Corporate Governance Considerations
42 Fiduciary Duties of the Board Duty of Care Directors are required to fulfill fiduciary duties: o Duty of Care o Duty of Loyalty Fiduciary duties may not be delegated 43 Fiduciary Duties of the Board Duty of Care Required of Corporate Directors A director shall discharge duties as a director, including duties as a member of a committee: in good faith; with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and in a manner reasonably believed to be in the best interests of the corporation Time commitment: o Devote sufficient time and attention to board matters (attend meetings, review reports, consider information, ask questions, seek information
where needed) Information: o Have timely access to the information Reliance: o Reach out to management and experts when necessary Delegation and oversight: o Actively monitor corporate affairs and those to whom authority has been delegated; apply constructive skepticism Investigations and compliance: o Investigate potential problems when alerted to them and require reasonable systems to be in place to detect, report and correct wrongdoing 44 Fiduciary Duties of the Board Duty of Loyalty Required of Corporate Directors Act honestly Analyze rationally Avoid self-dealing and misappropriation of corporate assets (including confidential
information) or other use of board position for advantage of self or others Fully disclose to the board potential, actual or apparent conflicts, so that the Board may take appropriate action 45 Presumptive Good Faith: Business Judgment Rule DE courts presume that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company o Provides protection from liability when directors act diligently, in good faith, and without self-interest o Directors are not liable for mere errors or mistakes of judgment Courts do not like to second-guess business decisions Where there is a conflict, it is important to be able to show that the decision was made by disinterested, independent directors Due to broad availability of D&O insurance and indemnification, it is rare but not unheard of for
public company directors who were found personally liable (or settled) to have to pay out of personal funds 46 Public Company Corporate Governance Considerations as Corporate Secretary Independent Directors Committee Roles, Responsibilities and Composition Independent Board Leadership Executive Session Requirements Meeting Frequency, Director Attendance Conflicts of Interest 47 Independent Directors New York Stock Exchange (NYSE) and Nasdaq Stock Market (Nasdaq) both require that independent directors must comprise a majority of the board of directors NYSE and Nasdaq define an independent director
generally as one who the board affirmatively determines has no material relationship with the company. o Material relationships either directly or indirectly Each stock exchange also has a set of bright line director independence qualifications, generally: o Director is or was a company employee o Director or immediate family member received $120,000 or more in compensation o Director or immediate family relationship with companys independent auditor o Compensation committee interlocking relationships o Director or immediate family member received other payments for property or services from the company 48 Audit Committee Public companies must have an Audit Committee composed entirely of independent directors: o At least three members o Additional independent requirements are imposed on Audit Committee Members o Must be financially literate and must disclose members who are
financial experts Typical responsibilities: o Appoint, compensate and retain public accountant o Establish procedures (i.e., whistleblower) for receiving complaints regarding accounting, internal controls or auditing matters o Review financial statements and earnings releases o Risk assessment and risk management 49 Compensation Committee Public companies must have a Compensation Committee composed entirely of independent directors Typical responsibilities: o Review and approve goals and objectives for CEO compensation o Recommend to the Board non-CEO compensation levels o Review and approve Compensation, Discussion and Analysis disclosure in public filings, typically filed in the companys annual meeting proxy statement o Retain and evaluate compensation consultants
50 Nominating/Corporate Governance Committee Public companies must have a Nom/Gov. Committee composed entirely of independent directors o Alternatively, Nasdaq companies may recommend director nominees by the independent directors of the Board Typical responsibilities: o Identify individuals qualified to become board members by applying board membership criteria o Select or recommend selecting director nominees o Develop and recommend corporate governance guidelines o Oversee evaluation of board and management 51 Independent Board Leadership Combined Chair of the Board and Chief Executive Officer o Public companies must publicly disclose the leadership structure of the board, and if the same person serves as both the Chair and CEO
o If one person serves as both Chair and CEO, company must disclose whether company has an independent lead director, and what specific role the lead independent direct plays in the leadership of the board Typical Independent Chair / Independent Lead Director responsibilities include: o convene and chair Board meetings, and preside at the Annual Meeting of Shareholders (Independent Chair only); o convene, chair and determine agendas for executive sessions, and coordinate feedback to the CEO regarding issues discussed in executive sessions; o approve the schedule for Board meetings, agenda items and the Boards information needs associated with those agenda items, and identify the need for and scope of related presentations; o assist the Board in the evaluation of senior management (including the CEO) and communicate the results of such evaluation to the CEO; o serve as an information resource for other directors and act as liaison between directors, committee chairs and management; o provide advice and counsel to the CEO; o develop and implement, with the Nominating and Corporate Governance Committee, the procedures governing the Boards work; o where appropriate and as directed by the Board, communicate with shareholders, rating agencies, regulators and interested parties; and o speak for the Board in circumstances where it is appropriate for the Board to have a voice distinct from that of management.
Proxy advisory firms, such as ISS, generally support that the Chair position be filled by an independent director 52 Executive Sessions and Director Attendance Executive sessions are designed for outside (independent) directors of the Board o Purpose is to allow directors to meet and have an open, candid discussion without the presence of management New York Stock Exchange and Nasdaq requires that independent directors hold regularly scheduled executive sessions 53 Providing Guidance on Conflicts of Interest Administration and enforcement of related person transactions policy and code of conduct o Related person transactions must be disclosed in the companys 10-K or proxy statement
Set tone and expectations for reporting and seeking guidance on potential conflicts The most important element of dealing with conflicts is the process of how the Company evaluates and handles conflicts (e.g., disclosure, recusal, evaluation) Appointment to the board by a sponsor is not in and of itself a conflict (and also not a per se independence disqualification); such directors must understand their fiduciary obligations to the Company and all of its shareholders Entire fairness standard for any interested party transactions 54 Hot Topics / Trends in Corporate Governance Shareholder Engagement and Communication Many public companies are continuing to recognize that some form of ongoing engagement by directors with shareholders is an effective governance tool. Institutional investors are becoming more vocal about the need for companies to stay engaged consistently throughout the year.
Some companies have implemented and publicly disclosed engagement programs, based on various structures, including the Shareholder-Director-Exchange (SDX) Protocol. Notable successes in 2016 of activist investors waging or threatening proxy fights are continuing to contribute to this trend. The Corporate Secretary works in partnership with the head of Investor Relations for shareholder engagements and communications. 55 Hot Topics / Trends in Corporate Governance Cybersecurity and Risk Management As a result of high-profile cyber incidents, companies and their boards continue to focus on the risk of reputational and financial damage resulting from a cyber-incident, ways to mitigate and otherwise manage such risk, and response planning. There is growing awareness generally of the vulnerability of companies and the inevitability of cyber-attacks. Disclosure with respect to cybersecurity has been an SEC focus for several years.
More public companies are developing enterprise risk management (ERM) programs, including forming an ERM Committee composed of management and board members to oversee the ERM program and receive reports. 56 Hot Topics / Trends in Corporate Governance Director Expectations in the Current Environment Boards are subject to an increasingly high degree of public and regulatory scrutiny, and are expected to be engaged, capable and ethical. Among key topics that remain at the forefront for boards attention and consideration in order to satisfy these stakeholders include: o o o o o strategy and risk management financial stability and controls culture and tone at the top relations with key stakeholders
board capabilities, composition, evaluation, governance structure and processes. A recent Delaware Supreme Court decision in October 2015 has placed a new spotlight on the sometimes routine analysis of director independence. The case illustrates that even if a director does not have a direct financial interest in a transaction, the directors independence can be called into question based on long-standing close personal friendships and economically advantageous relationships, and that reliance on the bright-line tests of the stock exchange rules may not be sufficient in determining the independence of directors. 57 Hot Topics / Trends in Corporate Governance Key Proxy Advisory Firm Developments ISS and Glass Lewis updated their proxy voting policies effective for the 2016 proxy season. Some of the key updates for 2016 relate to: o o o o
Director overboarding Proxy access Shareholder proposals related to environmental and social disclosure, Performance failures associated with board composition or environmental or social risk oversight, and o Unilateral board actions that materially diminish shareholder rights. 58 Hot Topics / Trends in Corporate Governance Proxy Access Proxy access, which has come to the forefront through Rule 14a-8 proposals submitted by certain pension funds and other governanceoriented activists, is designed to enable shareholders to use a companys proxy statement and proxy card to nominate one or more director candidates of their own. In 2015, many companies were awaiting SEC guidance in response to the shareholder proxy access proposal in the Whole Foods case, to see if they could exclude a shareholder proposal by proposing their own version of proxy access with thresholds that were more onerous than those requested by the shareholder. o While the SEC did issue new guidance in October 2015, it severely limits the use of competing company proposals as a method for companies to exclude shareholder proxy access proposals.
ISS recently published new FAQs that could result in ISS recommending a vote against directors after it examines how a company has adopted a proxy access bylaw in response to a majoritysupported shareholder proposal. 59 Hot Topics / Trends in Corporate Governance Majority vs. Plurality Voting Standard During uncontested director elections, company bylaws previously provided that directors are elected by a plurality of the votes cast during uncontested elections, unless otherwise provided in the companys charter or bylaws. o Plurality voting means that a director nominee receiving a single shareholder vote at the annual meeting is elected. o Since most director elections are uncontested, proponents of shareholder rights have criticized the traditional plurality voting standard and advocated for a majority voting standard. A majority voting standard typically requires that a company incorporate a provision into its charter or bylaws providing that a director must receive a majority of the votes cast to be elected in an uncontested election. Trends indicate that larger companies have moved toward adopting the majority voting standard.
Large institutional shareholders and shareholder rights groups, such as CalPERS and the Council of Institutional Investors, have amended their voting policies to require that any director who does not receive the majority of votes cast must leave the board as soon as practicable. 60 Hot Topics / Trends in Corporate Governance Disclosure Developments on the Horizon: Dodd-Frank Final Four Pay Ratio: Adopted rule (August 5, 2015) o The SEC adopted the controversial pay ratio disclosure rule by adding Item 402(u) to Regulation S-K. The new item will require a company to disclose the ratio of the annual total compensation of its chief executive officer to the median of the annual total compensation of all employees (except the CEO) Clawbacks: Proposed rule (July 1, 2015) o Rule would direct national securities exchanges like the NYSE and Nasdaq to establish listing standards that require a listed company to adopt a recovery (clawback) policy Pay-for-Performance: Proposed rule (April 29, 2015) o New disclosure would appear in tabular format in proxy statement o Would entail a comparison of (a) compensation actually paid to the CEO with (b) the companys financial performance
Hedging: Proposed rule (February 9, 2015) o Disclosure would be required in annual meeting proxy statements of whether the company permits any employees (not limited to officers) or directors, or their designees, to purchase financial instruments (such as collars) or otherwise engage in transactions that are designed to or have the effect of hedging or offsetting any decrease in the market value of the companys equity securities (however acquired) 61 Hot Topics / Trends in Corporate Governance Sustainability Shareholders, institutional investors and regulators are increasingly putting pressure on boards to assess and report on the sustainability of their business operations and investments. Shareholders and institutional investors have asserted their roles as stewards for long-term value creation and the impact of social, environmental and governance risks and impacts related to their businesses. o In May 2015, BlackRock teamed up with nonprofit sustainability leader Ceres to create a guide called 21st Century Engagement: Investor Strategies for Incorporating ESG Considerations into Corporate Interactions.
o Pension plans have also been vocal in their approaches to sustainability and responsible investing. For example, CalSTRS has endorsed the Principles for Responsible Investment (PRI) and worked with the Carbon Disclosure Product and Ceres to improve the transparency and disclosure of environmental risk data by corporations. 62