From left: Shelley Broader, David Walker, Jan Fields, and Lauren Smith
Chico’s FAS, parent company of the Chico’s, White House Black Market, and Soma brands, made headlines in 2016 when an activist investor dropped its bid for board seats at the company. Chico’s FAS was one of the largest U.S. companies targeted in a 2016 proxy contest. The company’s victory was credited to a number of factors, including the new CEO’s clear vision and the board’s preemptive work on governance.
NACD’s Florida Chapter recently convened a program at the Chico’s FAS headquarters in Fort Myers, hearing insights from NACD Florida Chapter Board member and Chico’s FAS Chair David Walker; Jan Fields, chair of the company’s corporate governance and nominating committee; and Chief Executive Officer and President Shelley Broader.
To set the stage for the discussion, the group shared details about the company’s situation in 2015, prior to hearing from the activist:
In the spring of 2015, the company was coming off a weak earnings announcement. The stock was languishing.
Fields recognized the situation and began to put together a plan in her new role as head of the company’s corporate governance and nominating committee.
Walker became the chair of the Chico’s FAS board.
As the prior CEO retired, Broader was identified and slated to join in December of 2015.
She quickly assessed and provided the company with a four-pillar strategy that was underpinned by the philosophy that the customer is looking for an excellent experience.
Based on the actions the board took during this period, the panelists shared key steps that every company should consider—not just to fend off activists but, more importantly, to ensure the board and management are looking after all of the company’s shareholders:
Ask the question, “What makes us so appealing to an activist?” Think about operations, capital allocation, governance, etc.
Know your shareholders. The stock of Chico’s FAS is widely held, so having a strong and engaged investor relations group is a critical element in the company’s success.
Identify a team to help point out weaknesses and prepare for challenges. This team could include legal, public relations, proxy advisors, investment banks, etc.
Use the newly-formed team to help you look at the company like an activist shareholder might, and be willing to make tough decisions when performance lags. Look at your company against its peers and review what analysts are saying.
Utilize a skills and experience matrix to ensure the board has the talent it needs to provide oversight to the company. To avoid directors rating themselves as expert in all areas of the skills matrix, ask each director to rate his or her top three areas of strength. Consider term and age limits. Recruit “rock stars” when you need new board members and make sure they are filling any gaps identified in your matrix.
When the activist challenge arose, the Chico’s FAS board agreed on the key members who would focus on the issue, and management did the same thing, ensuring that all but a small group at the company would continue to devote themselves entirely to advancing the company’s four-pillar strategy and running the day-to-day business during the proxy fight.
For those tasked with meeting personally with an activist, Broader repeatedly stressed the need to actively listen to the activist. Be sure to understand the activist’s point of view without reacting or prejudging any ideas or suggestions.
Though settling with an activist can sometimes be in the best interest of shareholders, leadership at Chico’s FAS determined that a fight to the proxy stage was warranted. A select group went on a roadshow, visiting significant investors, and creating tailored presentations based on the investor’s particular interests. The group also met with proxy advisory firms by phone.
The meetings proved highly valuable, with these firms ultimately siding with the company. In all of its meetings, the company articulated its strategic plan, introduced its slate of board candidates, and explained in detail why both were better options than those being proposed by the activist.
Lessons learned from Chico’s brush with an activist investor follow.
Shareholder relationships are like a vaccine. Maintain robust, ongoing engagement.
Be open to change after a vulnerability review. Taking action to address vulnerabilities can result in a stronger defense if one is needed.
Be willing to consider settlement but don’t settle if it is not in the company’s best interests.
Adopt corporate governance best practices. For example, director independence both by definition and in thinking is critical, and executive pay should be tied to performance. A board must continually hold itself accountable. (It is worth noting that Chico’s FAS is a full board member of NACD.)
What does the future hold for the company? Broader says that interesting times are ahead for retail in general, and innovation and design will be important drivers of her company’s success. While others are taking resources away from brick and mortar stores, Chico’s FAS recognizes the storefront as a key component of its omni-channel approach. No matter the path, the company’s board and management team have now learned a great deal about staying ahead of activists.
NACD Florida would like to thank the team at Chico’s FAS, for hosting the program and the panelists for sharing their experiences with attendees.
Kimberly Simpson is an NACD regional director, providing strategic support to NACD chapters in the Capital Area, Atlanta, Florida, the Carolinas, North Texas and the Research Triangle. Simpson, a former general counsel, was a U.S. Marshall Memorial Fellow to Europe in 2005.
Each year I find myself declaring that the profession of directorship has become more challenging than it was in the previous year. I believe we’ve now reached the point where we should recognize this escalation as the status quo, not an annual anomaly. The Securities and Exchange Commission’s director qualification disclosure requirements, the advent of proxy access, and the increasingly public role of shareholder activists have contributed to a business environment in which directors’ qualifications and performance are continually scrutinized.
NACD’s mission is to help directors lead with confidence—and to foster stakeholders’ confidence in their directors’ ability to effectively serve their companies. I’d like to highlight three critical issues that we believe directors—of all company types—should focus on during the year ahead.
1. Director Awareness
The dramatic slowdown in China’s economy, plummeting oil prices, recent terrorist activities, and the rise of the digital economy have put a fine point on the need for directors to be aware of disruptors that may cause a drastic change in sea conditions for their organizations.
No one can be expected to anticipate every potential disruption. (Who could have seen Uber idling around the corner?) But foresight comes down to one deceptively simple practice: asking the right questions. Are board members exploring the possible impacts of a terrorist act on the company’s supply chain, investigating their organization’s vulnerability to a cyber attack, or considering new competitors that can bring products to market faster than ever before and with nominal investment? Throughout 2016 our NACD Directorship 2020 initiative will continue to focus on disruptive forces, putting a spotlight on the issues that may affect your companies in the years to come.
It goes without saying that activist investors have gotten our attention. A record-setting 355 activist campaigns were announced in 2015, including 33 against Fortune 500 companies. Last year was also a record year in terms of activist campaigns resulting in board seats—127 resulted in at least one board seat for the activist or the activist’s appointee. Our own annual survey of public-company directors found that 20 percent of respondents’ boards were approached by an activist investor in the past year. But nearlyhalf of respondents reported that they are unprepared for an activist challenge.
Activists aren’t practicing black magic; they are performing effective due diligence and smart analytics on their holdings. Boards need to think like activists and anticipate the issues these investors may raise. Do your company’s metrics fall outside industry norms? Does your board composition have any perceived weaknesses? Do you engage with management about the assumptions that undergird your company’s strategy? In 2016, NACD will continue to provide resources that can help your boards to anticipate—and respond to—emerging issues.
M&A activity reached record levels in 2015. Given this phenomenon, it’s more critical than ever that boards understand their role in M&A. We believe it boils down to readiness and oversight.
At any given time, directors may need to consider either the sale of their own company or the purchase of another company. The board must carefully weigh all opportunities to buy or sell as part of its routine corporate oversight. Be on the lookout for NACD’s new M&A Board Resource Center, which will be available later this quarter. The center will serve as a one-stop shop to help boards participate effectively in the evaluation of proposed M&A transactions.
NACD Cyber Summit
On a final note, I’d like to call your attention to the 2016 NACD Cyber Summit, which will be held on June 15 in Chicago. With Congress now considering passage of a bill that would require companies to publicly identify the “cybersecurity experts” on their boards, scrutiny of the board’s role in cybersecurity oversight has never been greater. This year’s Cyber Summit will equip directors and management with the tools they need to foster cyber resiliency and confidently oversee cyber-risk management.
If you would like to receive additional resources on the three issues mentioned above or more information about the Cyber Summit, I encourage you to contact your dedicated NACD Concierge. If you have not yet had a chance to meet the concierge assigned to you, give us a call at 202-775-0509, and we’ll connect you.
Thank you for being an NACD member. I wish you a successful year ahead.
Executive compensation is a perpetual hot-button topic and one that activist investors frequently use to court shareholder support for their proposals. In a recent BoardVision video, Semler Brossy managing directors Roger Brossy and Blair Jones talk with Ken Bertsch, partner at CamberView Partners, about the following questions:
What compensation practices are red flags for activists?
What happens when an activist investor, or their representative, joins a board?
What are some practical considerations for boards and compensation committees?
Here are some highlights from that conversation.
Roger Brossy: [Activists have] $200 billion under management in various funds. We could see, at current pace, as many as 700 campaigns in corporate America led by activists. Blair, what does executive compensation have to do with this?
Blair Jones: It certainly is not the primary issue that an activist is using as they pursue a company, but it is a hook to engage other investors and also to engage the public at large if it’s a very public fight. The kind of thing they’re looking at is the magnitude of pay. So they would look at the “how much is too much?” question. They might look at certain elements of pay, like retirement or special supplemental retirement benefits, that only executives get. They love to look at pay and performance. Their favorite chart is a pay level that stays steady or even goes up, contrasted against a performance level that’s going down. That’s one of their key areas of focus and interest. They like to look at whether the metrics that they care about are included in the compensation programs, and they also look at say-on-pay votes. And if the company has a pattern of lower say-on-pay votes, it’s often an indication that there may be other governance problems underlying some of the decision-making at the company.
Brossy: Ken, we’ve engaged with activists who are very, very thoughtful about executive pay and have a very reasoned point of view about what the structure of programs ought to look like. But we’ve also been in situations where it felt like stagecraft, and we weren’t sure there was a lot of conviction. Maybe it was more just sort of a point to embarrass or try to curry favor with others. How do you see this fitting in?
Ken Bertsch: Well, I saw both things happen. This is a bit of a campaign—a political campaign—and people use things in campaigns that may make people look bad, which might not always be authentic to what’s going on. On the other hand, I wouldn’t want to overstate that, because I think executive pay does often get to, or is linked to, underlying strategy. Blair talked about discussion of metrics and what makes sense. If the investor has a view on what’s going wrong at the company and the pay strategy fits into that, that’s going to be a useful—and in some ways illuminating—piece of the campaign. So I think it’s both things, and it makes it hard to deal with.
Brossy: So what is your advice for boards?
Bertsch: Number one, be as clear as possible about executive pay. Disclosures have gotten a lot better in recent years, and I think that’s very important. Why are people being paid what they’re paid, and what’s the strategy behind it? How does it link to the company strategy? A lot of the investors who are not activists but [are] potentially voting on activism, that’s what they care about. So you want to be logical about what you’re doing. I think you want to avoid some of the practices that tend to get a lot of criticism. I think, also, you want to listen to the activists, to your shareholders, and try to hear if there is merit in the arguments being made.
Brossy: Blair, when we’ve had boards take activist slates into the board, obviously a very unusual and interesting environment ensues. People who might have been in sort of antagonistic public stand[off]s with each other are now looking to find a constructive way forward, and there may be a variety of points of views or degrees of willingness to have that happen. What should compensation committees do at that stage as they’re taking new members onto the board and potentially onto the compensation committee?
Jones: I think that’s a great question, and one of the most important things is to get a clear articulation of the philosophy of the compensation program. It’s important for the new board members to hear the history of how you got to where you did, but it’s also important for the whole board to talk about where the program is and to either affirm where they are or say there are some things that need to change. They do that as a group where they’re revisiting it. I think that’s job number one.
I think job number two is to … think about the people and the talent. Considering we’re in the situation we’re in, do we have any talent out there that we need to shore up and ask to stay and work with us through the process of taking this company into the next era? That may mean looking at things like severance arrangements so people feel like they have some protection. It may be selective retention or special programs that have new measures related to whatever the objectives of activists’ campaign were.