Corporate Governance in ESOP Companies. Summary of 2009 Survey Results

Transcription

1 1736 Franklin Street, 8th Floor Oakland, CA Phone: Fax: Web: Corporate Governance in ESOP Companies Summary of 2009 Survey Results December 23, 2009 This report highlights main results of the NCEO s 2009 survey of ESOP companies concerning their corporate governance practices. Topics include board composition, director terms, compensation, expected changes to the board, the role of ESOP participants in governance, and the characteristics of the ESOP trustee. More detailed information is available in several forms: A report of results available for NCEO members. An forthcoming report in the NCEO s Journal of Employee Ownership Law and Finance. A customized report prepared for your company by the NCEO. Contents 1. Highlights 2. Characteristics of Participating Companies 3. The Board of Directors: Size and Composition 4. Board Committees 5. Board Compensation 6. Director Term, Selection and Evaluation 7. The ESOP Trustee 8. Changing ESOP Trustees 9. Governance Role for ESOP Participants 10. Acknowledgements Follow-Up Future Surveys

2 1. Highlights The NCEO sent invitations to the questionnaire to its members that sponsor ESOPs in July and November, In addition, service providers to ESOP companies sent invitations to their ESOP clients. A total of 201 questionnaires were completed, although 11 represented a second survey from a single company: these 11 questionnaires were deleted, leaving 190 usable questionnaires. The typical company in this survey has fewer than 500 employees, is an S corporation 100% owned by its ESOP, and is most likely in manufacturing, construction, or engineering / architecture. The average board of directors has 5.6 members, of whom 61% are insiders, 27% are independent directors, and 12% are affiliated directors. Twenty-six percent of boards are composed solely of insiders. Majority ESOP-owned companies are more likely to have independent directors. Companies in the 2009 are more likely to have independent directors than companies in the 2005 survey. The majority of respondents do not expect to make fundamental changes to the composition of their boards in the upcoming three years. The most common expected change is increasing the number of independent directors. Among companies without independent directors, 34% expect to add independent directors in the next three years. The average board has a full meeting 3.8 times per year. Among companies with committees, the average number of committees is 3.3, most commonly a compensation / personnel committee. The median annual compensation for non-employee directors is $10,000, excluding the 26% of companies that have uncompensated non-employee directors. The vast majority of directors who are employees are not compensated specifically for their board service. The average director tenure is 9.7 years. Among companies that made non-zero payments to directed trustees, the average annual amount paid was $27,900. Among independent external trustees, the average amount paid was $22,800. Most companies have not changed their form of trustee and do not expect to make changes in the upcoming three years. Twenty-nine percent of companies provide a full pass-through of voting rights and 17% have participants vote for some or all directors. The survey indicates that 46% of companies expect zero or negative growth, 25% expect to grow at rates below their projections, and 26% expect to meet their pre-crisis projections. More detail about some of these highlights is in the following pages. Full details are available from the NCEO ESOP Corporate Governance Survey: December 23, 2009 page 2

3 2. Characteristics of Participating Companies The companies represented in this project have work forces under 500 employees, with only 3% larger than that. A slight majority (54%) are 100% owned by their ESOPs. On other measures the companies are more diverse. For example, one quarter have ESOPs more than 20 years old and 18% have ESOPs founded in the last four years. Geographically, all regions are represented, although the Midwest has twice as many respondents as the next most common region. Among the companies in the survey, 75% are S corporations. All but one of the responding companies are privately held. Responding companies are distributed among many industry categories, as in table 1. Table 1: Industries of Responding Companies Industry Percent of Companies Manufacturing 27% Construction 13% Engineering/Architecture 12% Service 9% Wholesale 9% Retail 7% Technology 6% Consulting/Analysis 6% Finance, Insurance, Real Estate 4% Transport/Distribution 4% Health Care 3% 159 valid responses 3. The Board of Directors: Size and Composition The average number of directors among the companies responding to the survey is 5.6. The average is higher in larger companies, 100% ESOP companies, and companies with longer-term ESOPs. Table 2 shows the different averages for different types of companies. Table 2: Size of the Board of Directors Average Number of Directors All companies 5.6 Revenue: Under $30 Million 5.3 Revenue: Over $30 Million 6.0 ESOP Ownership: Minority 5.0 ESOP Ownership: Majority (excludes 100%) 5.3 ESOP Ownership: 100% 6.1 ESOP Established: Before ESOP Established: 1990 to ESOP Established: 2000 to ESOP Established: 2005 or Later valid responses 2009 ESOP Corporate Governance Survey: December 23, 2009 page 3

4 Respondents classified each director into one of three categories: Inside directors (i.e., current employees of the company) Independent directors (i.e., directors with no direct financial relationship and no current or past employment with the company) Affiliated directors (i.e., non-employees with an ownership or business interest in the company, or family members of employees, owners, or business partners) Among all responding companies, the average board has 61% insiders, 27% independent directors, and 12% affiliated directors. The percentage of directors falling into each category varies substantially from one company to the next. Table 3 shows, for example, that 2% of companies have zero inside directors on their boards and 26% have boards composed entirely of insiders. That represents an increase since the 2005 survey in the number of companies with at least one independent director. Table 3: Composition of the Board None Some Entire Board Inside directors 2% 73% 26% Independent directors 40% 59% 1% Affiliated directors 64% 35% 1% The majority of respondents do not expect to change the size of their board or make substantial changes to the mix of inside, independent and affiliated directors over the next three years. Even when we just look at companies that currently have no independent directors, the majority of respondents still do not expect to add independent directors. Those expecting to change the size of the board are likely to be planning an increase. Regarding inside directors, companies are as likely to plan an increase as a decrease. Companies that are planning changes are far more likely to plan an increase in the number of independent directors and a decrease in the number of affiliated directors. The survey also asked about additional roles played by members of the board, for example, whether any directors are company founders or non-executives (i.e., employees who do not report directly to the CEO), as table 4 shows. Table 4: Other Roles of Directors Company Founder Seller Nonexecutives Nonemployee, owner At least one director 22% 50% 55% 11% 190 valid responses The average company plans to have 3.8 full board meetings and 2.1 interim meetings during These numbers are little changed since the 2005 survey: the number of 2009 ESOP Corporate Governance Survey: December 23, 2009 page 4

5 boards meeting less than quarterly is up slightly (from 36% in 2005 to 39% now), and the number meeting six or more times per year is essentially unchanged (from 16% in 2005 to 15% now). In the majority of companies (61%), the chief executive is also the chair of the board, and in another 23% the chair is a former executive. The chair is mostly likely to be the CEO in smaller companies, minority ESOPs, and companies with recent ESOPs. 4. Board Committees One-third of responding companies do not have any board committees, but among those companies that have committees, the average number of committees is 3.3. The majority of responding companies (54%) have compensation / personnel committees, and over one-third (37%) have audit committees, as table 5 shows. On average, committees meet between 1.5 times per year (nominating committees) and 5.3 times per year (finance committees). Table 5: Types of Board Committees Percent of Companies Meetings Per Year Compensation / Personnel 54% 2.2 Audit 37% 2.4 Governance 24% 3.7 Executive 21% 5.0 Finance 21% 5.3 Nominating 19% 1.5 Strategy 19% 3.6 Leadership Development 13% 4.0 ESOP 3% 3.7 Other 6% * Note: No average for other is included: some companies reported more than one other committee, so the average would not be for a single committee. 5. Board Compensation The survey asked for data about compensation to directors who are also employees, but those results are excluded here because the vast majority of responding companies (92%) do not pay their internal directors any compensation specifically for their service on the board. Among those companies that do compensate internal directors, the median estimated annual compensation is $5,000. The rest of this section deals with directors who are not employees of the company, hereafter referred to as external directors. We estimated annual compensation based on the reported size of retainers, per-meeting fees, and other forms of compensation ESOP Corporate Governance Survey: December 23, 2009 page 5

6 This calculation also assumes that the average external director is compensated for three committee meetings per year. While many directors certainly attend more committee meetings, others attend none. On average, companies in the database have 10.8 committee meetings per year and 3.3 committees. On the assumption that most board members are on a single committee, we use three committee meetings per director per year as a conservative estimate for calculating total director compensation. The totals amounts reported here are estimates for This is necessarily an estimate, and likely a lower bound of compensation. These figures do not include: Additional payments to board chairs or committee chairs Any director fees billed at an hourly rate Of the 190 companies in the database, 141 companies have at least one external director. Twenty-six percent of those companies do not compensate their external directors or did not provide any compensation data for them. These companies are excluded table 6, which shows estimated compensation for external directors in In other words, the median compensation among those companies that compensated their external directors is $10,000. Table 6: Estimated 2008 Compensation for External Directors % With Non-Zero Compensation Median Annual Compensation All companies 74% $10,000 Revenue: Under $30 Million 79% 1 $6,500 Revenue: Over $30 Million 82% $15,000 ESOP Ownership: Minority 68% $7,8000 ESOP Ownership: Majority (excludes 100%) 73% $15,000 ESOP Ownership: 100% 89% $10,000 ESOP Established: Before % $13,200 ESOP Established: 1990 to % $8,900 ESOP Established: 2000 to % $12,000 ESOP Established: 2005 or Later 43% $7,800 Directors in 89% of responding companies have at least some ownership interest in the company. In most cases, that ownership is at least in part through being an ESOP participant. 1 Careful observers will note that the percentages for the two revenue subsets of the data are both above the average for the entire database (i.e., 74% of companies overall pay non-zero compensation to external directors, which is less than the 79% of companies under $30 million in revenues and also less than the 82% of companies over $30 million in revenues). This apparent impossibility is the result of the companies which provided compensation data but did not indicate their revenue category. These companies, included under all companies but excluded under both revenue subsets, overwhelmingly did not compensate external directors ESOP Corporate Governance Survey: December 23, 2009 page 6

7 6. Director Term, Selection and Evaluation The greatest number (39%) of companies with independent directors have one-year terms, although just slightly fewer (36%) do not specify a term. The vast majority (95%) of companies do not specify a maximum number of consecutive terms for their independent directors. The great majority of companies have annual elections for their boards, although the election may be for only a portion of the seats. The average length of service for all directors at companies ranged from a low of two years to a maximum of 30 years, with an average of 9.7 years. A minority of companies (24%) have written guidelines for director performance (i.e., job descriptions, statement of principles, documentation of responsibilities). A slightly higher percentage (31%) have a written policy about the process for removing a director. 7. The ESOP Trustee In most responding companies, the board of directors selected the current ESOP trustee, as table 7 shows. Table 7: Who Selected Current ESOP Trustee Trustee Selected By Senior Management Board of Directors All companies 18% 71% 10% Revenue: Under $30 Million 19% 69% 12% Revenue: Over $30 Million 18% 74% 9% ESOP Ownership: Minority 32% 64% 4% ESOP Ownership: Majority (excludes 100%) 6% 81% 13% ESOP Ownership: 100% 15% 72% 13% ESOP Established: Before % 71% 15% ESOP Established: 1990 to % 67% 13% ESOP Established: 2000 to % 79% 2% ESOP Established: 2005 or Later 23% 70% 7% 164 valid responses ESOP Committee Among companies with directed trustees, it is usually the board of directors that directs the trustee (61%), although an administrative committee does for 27% and senior management gives directions in the remaining 12%. Table 8 reports the total amount paid by companies to trustees specifically for trustee duties: salary paid to employees who serve as trustee is not counted. We include the results for companies with directed trustees and those with independent external trustees. There was an insufficient number of companies with independent insider trustees for us to report the data, although the vast majority of companies in this 2009 ESOP Corporate Governance Survey: December 23, 2009 page 7

8 category did not provide any additional compensation to their trustees specifically for their role as trustees. Table 8: Compensation to ESOP Trustees Directed Trustees Independent External Trustees Zero 71% 0% Up to $15,000 per year 10% 14% $15,000 to $30,000 10% 38% Over $30,000 9% 28% 79 valid responses 29 valid responses Among companies that made non-zero payments to their directed trustee, the average amount paid in the most recently completed fiscal year was $27,900. Among independent external trustees, the average amount paid was $22, Changing ESOP Trustees The majority of companies with directed trustees have not made changes in the form of trusteeship: 75% of companies that currently have directed trustees had directed trustees when they established their ESOPs. The majority of companies (68%) with independent (i.e., non-directed) internal trustees started their ESOPs with independent internal trustees. By contrast, the majority of companies currently with external independent trustees (57%) have switched trustee types since the establishment of their ESOPs. To the limited extent that there is a trend, in other words, it is towards independent external trustees. Some ESOP professionals recommend that companies maintain an internal trustee during periods of standard operation and turn to an independent trustee when they need to make a specific decision, such as evaluating an ESOP transaction or a potential merger or sale of the company. Among those companies that currently have directed trustees or internal trustees, few rule out the possibility of hiring a transactional trustee, although under half say it is probable or certain that they would hire one, as table 9 shows. Table 9: Chance of hiring an independent trustee (companies with directed and internal trustees only) Companies Companies With Directed With Internal Trustees Trustees Definitely not 7% 3% Unlikely 27% 24% Possible 23% 31% Probable 21% 28% Certain 22% 14% 2009 ESOP Corporate Governance Survey: December 23, 2009 page 8

9 9. Governance Role for ESOP Participants While the ESOP trustee makes the final determination about how to vote shares held in the trust, the Employee Retirement Income Security Act (ERISA) requires that ESOP participants in privately held companies be able to direct the trustee about how to vote the shares in their accounts on a limited number of issues, including liquidation, merger, reclassification, sale of substantially all of the company s assets, etc. Companies may go beyond ERISA requirements and specify that participants will direct the trustee on all shareholder votes, also known as full pass-through voting. The survey asked companies whether they had full pass-through voting, and 29% said that they do. Participant votes may be on a basis of one vote per share or one vote per participant. According to the survey, 75% of companies specify that elections will be one-share-onevote. Election of directors is a right that may be retained by the ESOP trustee and not passed through to ESOP participants, and the majority (83%) of companies do not involve employees in choosing company directors. In the great majority of responding companies (92%), employees have no role in selecting the ESOP trustee ESOP Corporate Governance Survey: December 23, 2009 page 9

10 Acknowledgements Numerous ESOP companies insiders and service providers helped design and improve this project. Many other service providers helped publicize this survey to ensure that we had an adequate response rate. Specifically, the NCEO wishes to acknowledge Jenny Briggs, Neil Brozen, Ron Gilbert, Paul Horn, Dennis Long, Tom Roback, Randy Rowland, Sid Scott, Robert Smiley, and Cecil Ursprung for their help in improving the questionnaire and report. The following service providers offered to help reach out to their ESOP clients and encourage them to complete the survey: Merri Ash (First Bankers Trust Services, Inc.), Neil Brozen (BNC Bank), Kyle Coltman (SES Advisors),Rob Edwards (Steiker, Fisher, Edwards and Greenapple), Ron Gilbert (ESOP Services), Mike Hartman (Willamette Management Associates), Ken Hohman (Bryan, Pendleton, Swats & McAllister), Steve Magowan (Steiker, Fisher, Edwards and Greenapple), Karen Ng (Sedgwick, Detert, Moran & Arnold LLP), Tim Regnitz (Crowe Horwath), Tom Roback (Blue Ridge ESOP Associates), Randy Rowland (Teamswork), and Steve Smith (Krieg DeVault LLP). Follow Up Opportunities for more detailed analysis of the NCEO s 2009 survey on corporate governance are described on page 1. Contact Loren Rodgers (LRodgers@nceo.org; ) to learn more or to become an NCEO member. Future Surveys ESOP companies: To receive invitations to future NCEO surveys corporate governance, executive compensation, and other current-practice questions for ESOP companies, contact Loren Rodgers (LRodgers@nceo.org; ). Provide the contact information for the person at your company who should receive the survey. Signing up for any of our surveys ensures that the right person at your company will receive a survey, and that address will be used for no other purpose without your permission. All NCEO members will receive invitations unless they have requested not to receive s from the NCEO. If you would like to help design or review a survey, please contact Loren as well. Service Providers: To assist the NCEO with future surveys, contact Loren Rodgers. We are looking for help in the design of surveys and in encouraging ESOP companies to complete our questionnaires ESOP Corporate Governance Survey: December 23, 2009 page 10