Transcript Chapter 4
Business & Society
Ethics, Sustainability, and Stakeholder Management Eighth Edition Archie B. Carroll Ann K. Buchholtz
© 2012 South-Western, a part of Cengage Learning 1
Chapter 4
Corporate Governance: Foundational Issues
2 © 2012 South-Western, a part of Cengage Learning
Learning Outcomes
1.
2.
3.
4.
5.
6.
Link the issue of legitimacy to corporate governance.
Identify the best practices that boards of directors can follow.
Discuss the problems that have led to the recent spate of corporate scandals and the efforts that are currently underway to keep them from happening again.
Discuss the principle ways in which shareholder activism exerted pressure on corporate management groups to improve governance.
Discuss the ways in which managers relate to shareholders and the issues arising from that relationship.
Discuss the issue of shareholder democracy, its current state, and the trend for the future.
© 2012 South-Western, a part of Cengage Learning 3
Chapter Outline
• • • • • • • • Legitimacy and Corporate Governance Problems in Corporate Governance Improving Corporate Governance The Role of Shareholders The Role of the SEC Shareholder Activism Investor Relations Summary © 2012 South-Western, a part of Cengage Learning 4
Legitimacy and Corporate Governance
•
Legitimacy
A
condition
that prevails when there is a congruence between an organization’s activities and society’s expectations.
•
Legitimation
A
dynamic process
by which a business seeks to perpetuate its acceptance.
5 © 2012 South-Western, a part of Cengage Learning
Legitimacy
Micro Level of Legitimacy Macro Level of Legitimacy
Adapt operational methods to perceived societal expectations.
Focus is on the totality of business enterprises.
Attempt to change societal expectations or norms to conform to firm’s practices.
Subject to ratification.
Seek to enhance its legitimacy by identifying itself with others that have a powerful legitimate base in society.
Existence is solely because society has given it that right.
© 2012 South-Western, a part of Cengage Learning 6
Corporate Governance
Corporate governance
• Refers to the method by which a firm is being governed, directed, administered, or controlled and to the goals for which it is being governed. Is concerned with the relative roles, rights, and accountability of such stakeholder groups as owners, boards of directors, managers, employees, and other stakeholders.
7 © 2012 South-Western, a part of Cengage Learning
The Corporation’s Hierarchy of Authority
State Charter Shareholders Board of Directors Management Employees
© 2012 South-Western, a part of Cengage Learning 8
Separation of Ownership from Control
Precorporate Period Corporate Period Shareholders (ownership) Owners (ownership) Board of Directors Managers (control) Management (control) Agency problems develop when managers pursue self-interest over owner interest
© 2012 South-Western, a part of Cengage Learning 9
The Need for Board Independence
•
Outside directors
the firm – independent from •
Inside directors
the firm – have some tie to Board independence is crucial to good governance © 2012 South-Western, a part of Cengage Learning 10
Issues Surrounding Compensation
CEO Compensation and Performance Executive Retirement Plans Outside Director Compensation
11 © 2012 South-Western, a part of Cengage Learning
Issues Surrounding Compensation
(continued)
CEO Pay Controversy 1) Shareholder push to link pay to performance 2) Increasing use of “clawback” provisions where executives must return pay under some conditions
12 © 2012 South-Western, a part of Cengage Learning
CEO Pay/ Firm Performance Relationship
•
Stock Options
Allows the recipient to purchase stock in the future at the price it is today.
•
Backdating
Allows the recipient to purchase stock at yesterday’s price, resulting in immediate wealth increase.
•
Spring-Loading
Granting of a stock option at today’s price, but with the inside knowledge that stock’s value is improving.
•
Bullet Dodging
Delaying of a stock option grant until right after bad news.
13 © 2012 South-Western, a part of Cengage Learning
Excessive CEO Pay
Ratio of CEO pay to average worker is 319 to 1 (down from 531 to 1 in 2000).
• •
Say on Pay
Evolved from concerns over excessive executive compensation.
Began in the United Kingdom in 2002 with regulations on pay.
Clawback provisions
• Compensation recovery mechanisms that enable a company to recoup compensation funds, typically in the event of a financial restatement or executive’s misbehavior.
14 © 2012 South-Western, a part of Cengage Learning
Executive Retirement Plans and Exit Packages
• Retirement packages have come under • scrutiny.
Robert Nardelli received $210 million when he was ousted from Home Depot by shareholders.
Contrast to most workers, many of whom to do have a retirement plan.
15 © 2012 South-Western, a part of Cengage Learning
Outside Director Compensation
• • Paying board members is a recent concept.
Controversy over whether directors should be paid at all, and whether they are paid enough.
16 © 2012 South-Western, a part of Cengage Learning
Transparency
• • SEC requires disclosure of executive compensations.
Disclosure forms are long and difficult. •
Tax Gross-Up
Reimbursement for taxes one would have to pay on medical benefits or other such costs.
17 © 2012 South-Western, a part of Cengage Learning
Impact of the Market on Corporate Control
Poison pill Golden parachutes
18 © 2012 South-Western, a part of Cengage Learning
Insider Trading
The practice of obtaining critical information from inside a company and using that information for one’s own personal financial gain.
19 © 2012 South-Western, a part of Cengage Learning
Improving Corporate Governance: Sarbanes-Oxley Act of 2002 (SOX)
• • • • Limits the nonauditing services an auditor can provide Requires auditing firms to rotate the auditors working with a specific company Makes it unlawful for accounting firms to provide services where conflicts of interests exist CEOs and CFOs certify and are held responsible for financial representations 20 © 2012 South-Western, a part of Cengage Learning
Improving Corporate Governance:
• • • •
Sarbanes-Oxley Act of 2002 (SOX)
(continued) Enhances financial disclosure with requirements, such as: • • Reporting off-balance sheet transactions Prohibiting personal loans to executives and directors • Requiring auditors to assess and report upon internal controls Audit committees must have at least one financial expert Whistle-blowers are given protection Code of ethics disclosure 21 © 2012 South-Western, a part of Cengage Learning
Improving Corporate Governance
•
Changes in boards of directors
• • Board diversity Outside board directors • • • • Use of board committees for: Audit Nominating Compensation Public policy The board should “get tough” with the CEO. 22 © 2012 South-Western, a part of Cengage Learning
Ranking of Red Flags Signaling Board Problems
Red Flags
Company has to restate earnings Poor employee morale Adverse Sarbanes Oxley 404 opinion Poor Customer satisfaction track record Management misses strategic performance goals Company is target of employee lawsuits Stock price declines Quarterly financial results miss analysts’ expectations Low corporate governance quotient rating © 2012 South-Western, a part of Cengage Learning 23
Steps to Take for Board Repair
Steps to Board Repair
Spread risk oversight among multiple committees Seek outside help in identifying potential risks Deep involvement in corporate strategy Align board size and skill with strategy Revamp executive compensation Pick compensation committee members who will question the status quo Use independent compensation consultants Evaluate CEO on grooming potential successors Know what matters to your investors 24 © 2012 South-Western, a part of Cengage Learning
Board Diversity
• • • •
Board diversity is lacking
Only around 15% of directors in U.S. are women.
Sixty-six Fortune 500 firms have no female board members.
Hispanics, Asian Americans and African Americans also under-represented.
Diverse boards are also less likely to fall prey to groupthink because they have a range of perspectives.
Is a global problem.
25 © 2012 South-Western, a part of Cengage Learning
Use of Board Committees
Principle Responsibilities of an Audit Committee
1.
To ensure that published financial statements are not misleading.
2.
To ensure that internal controls are adequate.
3.
To follow up on allegations of material, financial, ethical, and legal irregularities.
4.
To ratify the selection of the external auditor.
26 © 2012 South-Western, a part of Cengage Learning
Other Board Committees
• •
Nominating committee
Is composed of outside directors.
Has the responsibility of selecting competent, objective board members.
•
Compensation committee
Evaluates executive performance and recommending terms and conditions of employment.
• •
Public issues committee (Public policy committee)
Responds to public or social issues.
Deals with areas in which public or ethical issues are present.
27 © 2012 South-Western, a part of Cengage Learning
Board Member Liability
•
Business judgment rule
Holds that courts should not challenge board members who act in good faith, making informed decisions that reflect the company’s best interests. Board members need to be free to take risks without fear of liability.
© 2012 South-Western, a part of Cengage Learning 28
Board Member Liability
(continued) The “Caremark Standard,” which heightened concerns over
personal liability,
states that directors can be held personally liable if:
1.
The director utterly failed to implement any reporting or information system or controls, or 2.
Having implemented such a system or controls, consciously failed to monitor or oversee its operations, disabling their ability to be informed of risks or problems requiring their attention.
29 © 2012 South-Western, a part of Cengage Learning
Shareholder Democracy: Key Issues
•
Majority Vote
The requirement that board members be elected by a majority of votes cast.
•
Classified Boards
Boards that elect their members in staggered terms.
•
Proxy Access
Provides shareholders with the opportunity to propose nominees for the board of directors. 30 © 2012 South-Western, a part of Cengage Learning
The Role of the SEC
• Is responsible for protecting investor interests.
• Critics argue that the SEC is more focused on businesses than on investors.
SEC failed to catch the Bernard Madoff Ponzi scheme before losing investors billions.
31 © 2012 South-Western, a part of Cengage Learning
Shareholder Activism
Shareholder activism Shareholder resolutions Shareholder lawsuits
© 2012 South-Western, a part of Cengage Learning 32
Investor Relations
•
Full disclosure (Transparency)
Information filed at regular and frequent intervals that contains information that might affect investment decisions.
Management is responsible for communicating with shareholders.
33 © 2012 South-Western, a part of Cengage Learning
• • • • • • • • • • • •
Key Terms
Accounting Reform and Investor Protection Act of 2002 Agency problems Audit committee Backdating Board of directors Business judgment rule Legitimacy Legitimation Charter Classified boards Clawback provisions Compensation committee • • • • • • • • • • • • • • Corporate gadfly Corporate governance Shareholder democracy Employees Full disclosure Inside directors Insider trading Golden parachute Legitimacy Legitimation Majority vote Management Nominating committee Out-of-pocket liability 34 © 2012 South-Western, a part of Cengage Learning
• • • • • • • •
Key Terms
(continued) Outside directors Personal liability Poison pill Ponzi scheme Public Securities Litigation Reform Act of 1995 Proxy access Public issues committee Public policy committee • • • • • • • • • • • Sarbanes-Oxley Act Separation of ownership from control Shareholder activism Shareholder democracy Shareholder lawsuits Shareholder resolutions Shareholders Spring-loading Stock options Tax gross-up Transparency 35 © 2012 South-Western, a part of Cengage Learning