Professional Documents
Culture Documents
Governance
(Shareholders Portion)
Organization
Agency Theory
Agency Theory
‘Agency’ occurs when one party (Principal) employs another party (Agent) to perform a task on their behalf. In
most companies, there is separation of ownership and control. Shareholders own the company and directors
run the company on behalf of the shareholders.
Agent: Directors (as they run the company on behalf of the shareholders)
Problems With Agency Arrangement
Conflict of interest (covered below)
Oversight (e.g. directors maybe negligent or miss something)
Lack of integrity and honesty (e.g. directors doing frauds)
Lack of transparency (e.g. inaccurate reporting)
Ethical violations (e.g. directors may deviate from the values and ethics of the shareholders)
Conflict of Interest
Directors have a fiduciary duty to act in the best interests of shareholders. ‘Conflict of interest’ means that
director’s ‘personal’ interest surpasses the interest of the shareholders, i.e. directors lose their independence,
integrity and objectivity. Directors must solely work for the best interest of shareholders and avoid their
personal interest at all times (or disclose).
Accountability: The agent is fully accountable to the principal. Directors, individually and collectively, have a
duty under corporate governance to run the company in the best interest of the shareholders and to be held
accountable of the results and outcomes. . Directors can be held accountable in following ways:
Scrutiny of their performance by NEDs
Linking directors’ remuneration with performance
Non-appointment of director upon completion of tenure
Costs of Agency
Agency cost is a cost incurred by the Principal (shareholders) to monitor the Agents (directors). Agency cost
can be classified in two categories:
Monitoring cost (e.g. remuneration of directors, cost of monitoring, audits, attending AGMs, NEDs, etc.)
Residual loss (cost beyond remuneration of directors, e.g. where there is conflict of interest by
directors leading to a loss to business / shareholders)
Board of Directors
Introduction
Every company is led by a Board of Directors, which is collectively responsible for achieving the objectives and
long-term success of the company. The board should have appropriate
Knowledge
Independence
Size
Skills KISSE(D)
Experience
Non-Executive Directors (NED) are part-time outside directors ‘independent’ of the company i.e. they are not
employee of the company.
Completeness: Provide complete picture, disclosures should meet minimum statutory obligations
Accuracy: Correct facts and figures, no errors, inspire confidence
Regularly: Regular, timely communication CART
Transparency: Open and fair disclosure of information, no concealment
Board Meetings
Meeting should be held regularly
Minimum quorum to be present
Agenda:
Decided by Chairman
Include both short-term and long-term issues
Circulate in advance so that Directors can prepare
Chairman to direct meetings and encourage debates
Role of NEDs
Strategy: discuss strategies, bring external experience and leadership
Performance: scrutinize the performance of Executive directors
Risk: ensuring effective internal control and risk management systems are in place and
financial reporting is accurate and reliable
People: nomination, remuneration and succession planning of executive directors and
senior executives, providing added comfort to shareholders
Advantages of NEDs
Brings independence to the Board (i.e. no conflict of interest)
Adds confidence to shareholders
Have external experience and wider perspective
Scrutinize / challenge performance of executive directors and the company
Employees can discuss confidential or sensitive matter with NED directly (whistle-blowing)
Company can comply with Regulatory / Listing requirements
Disadvantages of NEDs
Difficult in finding an appropriate NED with relevant experience and willing to work at a small fee
May lack independence
May face resistance from executive directors
May find it hard to enforce their views
May not give sufficient time to business
Smaller remuneration as compared to executive directors
Independence of NEDs
No business or financial relationship with the company for last 3 years
Not an employee of the company for last 5 years
Not an NED in same company for more than 9 years
Not have close family ties or friendship with executive directors
Not a significant customer or supplier of the company for last 3 years
No family members working in the company in senior position
Not an auditor of the company for last 3 years
Not have a cross-directorship with another executive director
No share in profit or having share options of the company
NEDs should be allowed to seek independent expert advice on any professional matter, if required
Number of NEDs
There is no fixed number of NEDs. Different jurisdictions have different rules:
UK: Sufficient number of NEDs so that their views carry significant weight
NY Stock Exchange: NEDs should be > 50% of the total board size (i.e. in majority)
Singapore: Atleast one third of the board
Two of the NEDs have permanently retired and use the income they get from being NEDs to
supplement their living
Board Committees
Key Board Committees
3- Audit Committee: Reviewing accounts and internal controls, liasoning with external auditors
and supervising internal audit function
Risk Committee
The Risk Committee is responsible for oversight of the risks which the company faces and ensuring that a
sound system of risk management and internal controls exists to deal with those risks. Risk Committee
comprises of majority of NEDs with some Executive directors, as specialist expertise of Executive directors can
benefit the committee.
Long term incentive: e.g. share options (covered below), long term bonus
Bonus payout is based on financial performance of the company, mainly profitability. Non-
financial targets can also be there, e.g. customer satisfaction, market sharer, etc.
Retention options:
Attractive package
Loyalty bonus (e.g. if you stay with Company for 5 years, you will get Rs XXX bonus)
Share options
Share options are long term incentives scheme whereby directors are allotted company shares which they can
only sell after 3-5 years (exercise date). Share prices should increase over time due to growth and profitability
of the company. This motivates directors to stay with the company and focus on creating long term
shareholder wealth.
Unitary Board:
In this approach, there is just one board in the company:
Single board having Executive directors as well as Non-Executive directors
Executive directors focus more on day to day management (similar to Management Board under Two
Tier approach)
Non-Executive directors focus more on advice and protecting shareholder interests (similar to
Supervisory Board under Two Tier approach)
However, all directors have equal voting rights
Advantage Disadvantage
Methods of CPD
External trainings
In-house trainings
Attending conferences and seminars
Professional courses and certifications
Reading / writing relevant books
Mentoring and coaching
Advantage of CPD
Maintain professional knowledge and skills of directors
Keeps directors up to date with latest topics and developments
Enhance director’s competence
Improves board’s effectiveness
Demonstrate director’s commitment to their profession and company
Advantages of Diversity
Wider pool of talent
Broader range of ideas and knowledge
More representative of the community
Enhanced reputation and outlook of organization
Compliance with listing regulations
Issues of Diversity
May lead to sub-groupings within the board
Board may ignore the views of diversified members
Diversified members may not feel motivated to contribute
By resolution following directions from Govt / State – intervention under certain circumstances
Leaving of Directors
Following are the circumstances in which directors leave office
Retirement at the end of the term
Removal:
Resignation anytime during the term
Disqualification anytime during the term
Removal by shareholders anytime during the term
Retirement by Rotation
Directors contract are limited to a specific time period, after which he / she automatically retires by default.
Then the director offers himself / herself for re-election (retire by rotation). In UK, director’s contract is for 1
year for large listed companies and 3 years for other companies.
Removal of Directors
A director may leave or maybe removed from office before his / her term expires. There are many possible
reasons:
Resignation by director – a director can resign on his own by giving formal notice period
Disqualification of Director
Disciplinary offence
Fraud
Absent for more than 6 months
Disability / Death
Bankruptcy
1. Independence (no conflict of interest, no wrong motives, fact based, no bias, no undue influence)
2. Probity (integrity, honesty, straight forward, truthfulness, not conceal anything wrong)
3. Transparency (disclose all material matters to shareholders, open relationship with shareholders)
Institutional Investors
Definition
Shares in listed companies are held by a range of individuals and institutions. Institutional shareholders are
organizations which have large amount of money to invest. They include pension funds, insurance
companies, investment & unit trusts, mutual funds, etc. Accordingly, the number of shares held is much
higher than number of shares held by an individual shareholder. Hence institutional shareholders have a
much higher influence than an individual shareholder. Institutional investors employ Fund Managers to
manage the investment portfolio with the aim to benefit the individual member of the funds.
Exercise: Identify the differences between individual investor and institutional investor
Characteristics of Institutional Investors
Higher dominance as power is concentrated in few hands
Higher ‘Shareholder Activism’:
Active participation in key strategies and decisions
Paying attention to the Board composition, Committees and NEDs
Making active use of voting rights
Critical review of remuneration policy and perks
Dictating risk appetite
Outsider Dominated Business is one in which the controlling shareholding is held by a large number of
shareholders, e.g. a listed company. Shares could also be held by Institutional Investors. Since these are
listed companies, they are subject to higher regulations / corporate governance requirements.
None or few NEDs with weak position Significant NEDs having strong position
Less focus on internal audit and High focus on internal audits & risk management
risk management
Lower agency problems and cost (as family Higher agency problems and cost (as directors
is running the business directly) run the business on behalf of the shareholders)
Benefit Problem
Greater involvement in management Discrimination against minority shareholders
Lower agency problems and cost High chances of dispute between
major shareholder groups
Focus on long term strategies
Conflict of interest
Higher level of ethical behavior due
to reputational risk Weak corporate governance / NEDs
Improved communication and
coordination between shareholders
NEDs
Internal Audit
Which one is rule based approach and which one is principle based approach?
Advantage: Advantage:
Clear regulations – no subjectivity Shareholders decide to what extent compliance
Standard rules across the board needs to be done
Punishment acts a deterrent Flexible / Can be adopted according to industry,
Provides a level playing field for all industries and company size and nature of risk
companies Able to address exceptional situations
Suited for non knowledgeable shareholders Lower cost of compliance
Disadvantage: Disadvantage:
Inflexible Subjective
Unable to address exceptional situations Not suited for non-knowledgeable shareholders
High cost of compliance Lack of consistency across industry
OECD Principles
OED principles were developed in 1998 and revised in 2004 and grouped into 5 broad areas:
ICGN Principles
ICGN report was issued in 2005 and revised in 2009 to provide practical guidance on OECD principles. It
emphasis on the following matters:
1. Shareholders (create long term value, protect their rights, fair treatment)
2. Directors (board structure, skills, term, remuneration, election, evaluation)
3. Corporate culture (ethics, integrity, bribery/anti-corruption, whistle blowing)
4. Risk management (analyze, manage, risk appetite)
5. Remuneration of Senior Management (link with performance)
6. Audits (external, internal, relationships)
7. Disclosures and transparency (material financial & non-financial info)
Common Themes Amongst All Codes
Shareholders
Stakeholders
Directors
Auditors and Audit Committee
Disclosures and Transparency
Risk Management, Ethics & Culture
Practice
Questions
P1 – Jun 2010 Q2: Remuneration Committee | Reward Package (Tomato Bank)
P1 – Dec 2014 Q3: Role of CEO | Benefits of NED | Conflict of Interest (New