As I look ahead to the challenges that boards will face in 2015, I am more confident than ever in NACD’s mission to help directors navigate an increasingly complex environment. Our programs and resources remain focused on helping directors improve their performance as strategic assets for their organizations. We achieve this primarily by providing the foresight to anticipate emerging issues, thereby enhancing stakeholder confidence in the board’s ability to provide effective leadership.
I’d like to briefly share with you the three critical issues that NACD will focus on this year.
1. Cybersecurity. It will surprise no one that cyber-risk oversight has become a top agenda item for boards. NACD’s latest survey found that the majority of directors are dissatisfied with the cybersecurity information they are getting from management. How well does your board understand the company’s cyber risk practices? Does your board have an established response plan in the event of a cyber-breach? These are the issues that NACD will continue to help directors resolve throughout 2015.
2. Board-Shareholder Communications There’s no question that shareholders will continue to influence boardroom agendas in 2015. In our most recent meeting with major institutional investors, we asked the participants to list their priorities for board focus in 2015. The three areas identified were: (1) focusing on “drivers” of effective board leadership, (2) holding directors accountable when investors believe shareholder rights have been undermined, and (3) ensuring communication between boards and investors are about context, not volume. We will continue to meet with both institutional investors and activist shareholders throughout the year and will share their perspectives with you.
3. Strategy. You may be wondering why strategy is on this list. Isn’t oversight of the organization’s strategy an inherent responsibility of the board? The answer is still yes. However, in an increasingly dynamic climate, boards can no longer afford to take an annual “review and concur” approach to management’s strategy. Our 2014 Blue Ribbon Commission Report strongly recommends continuous board engagement with management in the strategy development, and course correction, process. Our members’ reaction to this new – and potentially radical – approach has been very positive, and we will continue to provide guidance on this topic in 2015.
Two final notes. Our NACD Directorship 2020 initiative, which puts a spotlight on the market disruptors that will impact companies in the years to come, continues to be very popular. We will hold three member-exclusive events again in 2015. Please be sure to register early as the sessions tend to sell out.
We are holding our inaugural NACDStrategy and Risk Forum in San Diego on May 12-13. The forum will include a full day dedicated to cybersecurity, with former Department of Homeland Security Secretary Tom Ridge as a featured speaker. Click here to learn more about this exciting new program.
Thank you for your membership. I wish you a successful year ahead and encourage you to continue to work with your dedicated NACD Concierge to identify the educational programs and topical resources to enhance your board leadership.
Chief Executive Officer
National Association of Corporate Directors Advancing Exemplary Board LeadershipTM
On the morning of Tuesday, October 14, 2014, a group of Board Leadership Conference attendees joined Alan M. Klein, Partner, Simpson Thacher; Jamie S. Moser, Partner, Joele Frank; and moderator Chris Ruggeri Principal, Deloitte for a power breakfast session entitled “Balancing Shareholders and Capital Markets”.
It is well known that there has been a rise in shareholder activism over the last few years. There are more than 400 activist funds today with more than $100 billion under management. If viewed as an asset class, activist funds are a top performer. Money flows to where it can generate the largest return, and activist-backed funds have flourished. In turn, panelists observed that this has emboldened shareholders of all stripes. In their quest to have a more prominent voice in how companies are run, these investors have changed the dynamics of company-shareholder interaction.
There are many different kinds of shareholders ranging from professional, established investors to newer, smaller entrants into the market. Moser believes that some larger organizations that tend to maintain long-term positions in companies can be considered activists as well. While they prefer not to run campaigns on their own, they feed ideas to others who will. Klein noted, “In a sense these ‘long only’ funds have outsourced their activism”.
Panelists noted that activist shareholders don’t pick targets lightly. They spend a significant amount of time drilling down into companies, and have a surprising depth of knowledge. As such, it would be a mistake to disregard them or view them as superficial. Nevertheless, there is often a mismatch between the way those who run companies view their businesses and the perspective of many activists.
Governance issues can be used as part of a shareholder’s demands. Although they are not typically the crux of an activist fight, these issues can become part of the story and set the tone. For example, panelists cited topics such as related party transactions or sluggish board turnover as “low hanging fruit” for shareholders. Even if these issues have been properly disclosed, a shareholder may use them to put the company on the defensive.
On the other hand, some investors – particularly the more well-established fund – ask for reasonable conversations with the board and management. Panelists observed that if directors can demonstrate to them the validity of the current plan and why their thesis is wrong, some investors may listen or even back off. That being the case, engagement is extremely important.
It is critical that directors understand the perspective of the company’s shareholders. The first question Moser asks a company is, “When’s the last time you spoke with your top 10 shareholders?”
Further, the board should engage with shareholders for the first time outside proxy season, when the discussion is often centered around voting. Then, if a proxy contest starts, the company can reply “our board has been speaking directly with shareholders; we’ve been active and engaged.” Meetings between the board and investors should demonstrate transparency and openness. Directors can simply ask investors, “what’s on your mind?” Of course, panelists noted that it is important to remain conscious of Regulation FD; avoid the discussion of material items in a one-on-one setting.
Boards can also go beyond annual “deep dives” to ensure the current strategy is still viable. For example, Klein suggested that boards invite a banker to give a presentation, valuing the strategic plan and showing how it stacks up to strategic alternatives. If the board has conducted this type of analysis, they are more able to speak to the current strategy’s strengths and how it will produce the most value for the company. It is also important that the strategic plan for the company is communicated in the most compelling way possible. “The first three-quarters of any ‘fight letter,’” Moser noted, should be about strategy – how your strategy provides more value than what the shareholder is proposing.”
Activist Investors on the Board
Finally, the panel discussed how boards can work with new activist directors once elected to the board. Klein noted that most activist situations today end in a negotiated outcome: Either a proxy fight doesn’t start, or the fight may end before it ever gets to a vote. Typically, as the result of a negotiation, the shareholder ends up with one or two seats. If these new directors can make their case in a logical manner, a fresh perspective may prove beneficial for a board.
Ultimately, panelists agreed that there has been a sea change regarding how companies and their shareholders interact. To the question of whether activism is good or bad, the answer is “yes”– it depends on facts and circumstances.
A recent blog by British twitter maven Lucy Marcus got me thinking about where new thinking and fresh strategy comes from. Lucy rightly points out that new beginnings take time and that, in this cost-conscious era, there is a risk that no company has the patience to sew seeds and give them time to grow. We’ll call this impatience, and certainly it is a failing that often besets the super-bright who are restless company executives, and their peripatetic counterparts who become board members.
There are other stumbling blocks in the way of innovation too, and chief amongst them is information overload. At NACD’s recent Investor Insights Roundtable , Denny Beresford revealed that he had seen proxy statements that were longer than the 10-K. Anne Sheehan, director of corporate governance for CalSTRs, concurred. “Don’t send me the charter; I can read that for myself,” she pleaded, making a request for only critical information, presented in a concise and accessible form. As all of us know, too much information can be as bad as too little. Swamp your readers and they’ll find it all too easy to miss your point.
But there is one shortfall that always stands in the way of progress for fresh thinking, and that is lack of imagination. Too few C-suites, committees and other information providers really think about the message they wish to convey, and ways to engage the audience they seek. The best teachers understand that without engagement, there is no education. Information is passed and knowledge is gained through story-telling, entertaining experiences that stick in the mind, and the thoughtful paring down of data and equally thoughtful pumping up of passion, color and context. These are skills and approaches that have value in every area of life, business and governance. They should not be confined to the classroom.
our engagement quotient was high: Richard Levick discussed crisis planning at the board level, using the miserable face of an oil-soaked shag and the equally miserable face of former BP CEO Tony Hayward to make his key points; Rob Galford, compensation chair at Forrester Research, used his physical presence and party tricks (“point your finger in the air. Now, on the count of three, point it at the spokesperson in your group”) to drive home some interesting thoughts on performance metrics; and Charles Elson, a director on the board of HealthSouth corporation, used catch phrases (“Don’t be sleazy; Don’t be sloppy”) to help more than 60 directors grasp the essence of the Duty of Loyalty and the Duty of Care.
All of this leads me to an interesting opportunity for washed-up television producers such as myself: We should position ourselves as Chief Engagement Officers for corporations prone to boring their boards to death. We could be creative conduits, taking the dry, dense and dusty and turning it into presentations worthy of prime-time. Similarly, all boards should look for comedians down on their luck, children’s book illustrators with a gift for detail that captivates, and song and dance acts capable of rhyming “audit” with either “plaudit” or “sod it.” Once identified, this rag-tag group should form an Engagement Oversight Committee with advisory status to the board. This EOC would work alongside the GC and reshape anything terminally turgid into a director’s delight. It would solve an unemployment problem in the entertainment sector, and would greatly enhance not only board meetings, but also board, company and stock performance. It might also offer an interesting second career opportunity for burned out teachers…
If you sleep at night surrounded by spreadsheets and with PowerPoint as your pillow, urge your company to consider this engagement initiative, and soon you’ll look forward to board meetings: We put the “Glee” in governance.