NYSE: Corporate Governance Guide NYSE: NYSE: Corporate Governance Guide nyse.com/cgguide nyse.com/cgguide NYSE: Corporate Governance Guide Published in association with New York Stock Exchange, an Intercontinental Exchange Company | NYSE Governance Services Consulting editors: Steven A. Rosenblum, Karessa L. Cain, and Sabastian V. Niles, Wachtell, Lipton, Rosen & Katz Published by White Page Ltd NYSE: Corporate Governance Guide Consulting editors Steven A. Rosenblum, Karessa L. Cain, and Sabastian V. Niles, Wachtell, Lipton, Rosen & Katz Publisher Tim Dempsey Publishing editor Nigel Page Production editor Matt Rosenquist Design Graphic World Inc Printing and binding Transcontinental Printing nyse.com/cgguide NYSE: Corporate Governance Guide is published by: White Page Ltd 17 Bolton Street London W1J 8BH United Kingdom Phone: + 44 20 7408 0268 Fax: + 44 20 7408 0168 Email: [email protected] Web: www.whitepage.co.uk First published: 2014 ISBN: 978-0-9565842-6-7 NYSE: Corporate Governance Guide © December 2014 Copyright in individual chapters rests with the authors. No photocopying: copyright licenses do not apply. DISCLAIMER This guide is written as a general guide only. It should not be relied upon as a substitute for specific legal or financial advice. Professional advice should always be sought before taking any action based on the information provided. Every effort has been made to ensure that the information in this guide is correct at the time of publication. 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Introduction—the spotlight on boards Steven A. Rosenblum, Karessa L. Cain, and Sabastian V. Niles Wachtell, Lipton, Rosen & Katz he ever evolving challenges facing corporate boards prompt an updated snapshot of what is expected from the board of T directors of a major public company—not just the legal rules, but also the aspirational “best practices” that have come to have almost as much influence on board and company behavior. The end goals of boards remain the same: overseeing the successful, profitable, and sustainable operations of their companies. But the pressures that confront directors, from activism and short-termism, to ongoing shifts in governance, to global risks and competition, are many. The submissions contained in this guide provide additional perspectives on the current corporate governance environment and the challenges—and opportunities—faced by boards of directors. In the current environment, boards are expected to: • Establish the appropriate “tone at the top” to actively cultivate a corporate culture that gives high priority to ethical standards, principles of fair dealing, professionalism, integrity, full compliance with legal requirements, and ethically sound strategic goals. • Choose the CEO, monitor his or her performance, and have a succession plan in case the CEO becomes unavailable or fails to meet performance expectations. • Maintain a close relationship with the CEO and work with management to encourage entrepreneurship, appropriate risk taking, and investment to promote the long-term success of the company (despite the constant pressures for short-term performance) and to navigate the dramatic changes in domestic and worldwide economic, social, and political conditions. • Approve the company’s annual operating plan and long- term strategy, monitor performance, and provide advice to management as a strategic partner. NYSE: Corporate Governance Guide iii Introduction—the spotlight on boards Wachtell, Lipton, Rosen & Katz • Develop an understanding of shareholder of age, length of service, independence, perspectives on the company and expertise, gender and diversity, and foster long-term relationships with provide compensation for directors that shareholders, as well as deal with the fairly reflects the significantly increased requests of shareholders for meetings time and energy that they must now to discuss governance and the business spend in serving as board and board portfolio and operating strategy. committee members. • Evaluate the escalating demands of • Evaluate the board’s performance, and corporate governance activists designed the performance of the board committees to increase shareholder power. and each director. • Work with management and advisors • Determine the company’s reasonable to review the company’s business and risk appetite (financial, safety, cyber, strategy, with a view toward minimizing political, reputation, etc), see to the vulnerability to attacks by activist hedge implementation by management of state- funds. of-the-art standards for managing risk, • Organize the business, and maintain monitor the management of those risks the collegiality, of the board and its within the parameters of the company’s committees so that each of the increasingly risk appetite, and oversee that necessary time-consuming matters that the board steps are taken to foster a culture of risk- and board committees are expected to aware and risk-adjusted decision making oversee receives the appropriate attention throughout the organization. of the directors. • See to the implementation by • Plan for and deal with crises, especially management of state-of-the-art standards crises where the tenure of the CEO is in for compliance with legal and regulatory question, where there has been a major requirements, monitor compliance, and disaster or a risk management crisis, respond appropriately to “red flags.” or where hard-earned reputation is • Take center stage whenever there is a threatened by a product failure or a socio- proposed transaction that creates a political issue. Many crises are handled seeming conflict between the best less than optimally because management interests of stockholders and those of and the board have not been proactive in management, including takeovers and planning to deal with crises, and because attacks by activist hedge funds. the board cedes control to outside counsel • Recognize that shareholder litigation and consultants. against the company and its directors is • Determine executive compensation to part of modern corporate life and should achieve the delicate balance of enabling not deter the board from approving a the company to recruit, retain, and significant acquisition or other material incentivize the most talented executives, transaction, or rejecting a merger while also avoiding media and populist proposal or a hostile takeover bid, all of criticism of “excessive” compensation which is within the business judgment of and taking into account the implications the board. of the “say-on-pay” vote. • Set high standards of social responsibility • Face the challenge of recruiting and for the company, including human rights, retaining highly qualified directors who and monitor performance and compliance are willing to shoulder the escalating with those standards. workload and time commitment required • Oversee relations with government, for board service, while at the same community, and other constituents. time facing pressure from shareholders • Review corporate governance guidelines and governance advocates to embrace and committee charters and tailor them “board refreshment”, including issues to promote effective board functioning. iv NYSE: Corporate Governance Guide Wachtell, Lipton, Rosen & Katz Introduction—the spotlight on boards To meet these expectations, it will be devote sufficient time to preparing for and necessary for major public companies (1) to attending board and committee meetings; have a sufficient number of directors to staff (4) to provide the directors with regular the requisite standing and special committees tutorials by internal and external experts as and to meet expectations for diversity; (2) to part of expanded director education; and have directors who have knowledge of, and (5) to maintain a truly collegial relationship experience with, the company’s businesses, among and between the company’s senior even though meeting this requirement may executives and the members of the board. result in boards with a greater percentage We thank each of the contributors to this of directors who are not “independent”; guide for their thoughtfulness and hope you (3) to have directors who are able to find their perspectives of value. NYSE: Corporate Governance Guide v NYSE: Corporate Governance Guide Tom Farley, President New York Stock Exchange, an Intercontinental Exchange Company Foreword The relationship between companies and their shareholders has never been more important than it is today. Open communication as well as trust in both management and the board are critical to building long-term relationships with investors,