Introduction to the SDX Protocol

The Shareholder-Director Exchange (SDX™) [1] is a working group of leading independent directors and representatives from some of the largest and most influential long-term institutional investors. [2] SDX participants came together to discuss shareholder-director engagement and to use their collective experience to develop the SDX Protocol, a set of guidelines to provide a framework for shareholder-director engagements. While the decision to engage directly with investors should be made in consultation with or at the request of management, the 10-point SDX Protocol offers guidance to US public company boards and shareholders on when such engagement is appropriate and how to make these engagements valuable and effective.

Changes to the corporate governance landscape, including an increasing focus on better and more effective governance practices, the frequency and scale of activist campaigns, the increased use of proxy advisory services, and an increased understanding of the potential benefits of direct engagement, have led institutional investors and public company boards to review their current approaches to shareholder-director engagement. More institutional investors are seeking meetings with the public company directors they elect, and more directors are accepting these requests. Some boards are proactively requesting meetings with significant shareholders.

In December 2013, Securities and Exchange Commission Chair Mary Jo White emphasized the importance of direct engagement by stating “the board of directors is—or ought to be—a central player in shareholder engagement.” [3]

This post synthesizes the perspectives of participating directors, institutional investor representatives, and other thought leaders concerning four key reasons why the time is right for the SDX Protocol:

• Shareholders are increasing their involvement with public companies and are often focused on corporate governance matters
• Directors are responding by engaging more frequently with the company’s owners
• Both investors and directors are realizing significant value from direct engagement
• Perceived barriers to engagement can be avoided or addressed

Shareholders are increasing their involvement with public companies and are often focused on corporate governance matters

One of the most significant developments in corporate affairs in recent years is the shift in the balance of power between shareholders and the management and boards of the companies in which they commit their capital. Passive shareholders whose portfolios are largely indexed have long seen engagement as an important tool; now, active shareholders are no longer content with exiting their investments when operating performance, investment returns, or corporate governance are unsatisfactory. With increasing frequency, more investors are attempting to influence the corporate governance and operations of companies through the proxy process or other forms of activism, and long-term investors are increasingly willing to consider and support these efforts. It is shortsighted for corporate boards to avoid engaging with their long-term investors when activists frequently meet with those same institutions to pursue corporate change.

Some directors involved with the SDX Protocol noted that companies on whose boards they sit have received engagement requests because performance, policies, or practices have triggered shareholder interest. This is more than just anecdotal, as traditional activism is clearly on the rise:

• Activist shareholder interventions (e.g., seeking board representation, share buybacks, CEO removal) increased 88% between January 1, 2010 and September 20, 2013, with the majority of that growth in Europe and the United States. [4]
• Activist shareholders worldwide have stepped up their actions at companies with market capitalizations exceeding $2 billion by 129% since January 2010. [5] The average market value of companies targeted by activists increased to $8.2 billion in 2012, up from $3.9 billion in 2011. [6]
• The number of shareholders globally with a stated activist strategy has more than doubled over the last decade. [7]
• Activist funds are estimated to have over $100 billion in assets under management—three times the amount invested in 2008. [8]

An important change from the past is that activists no longer need to take large stakes in their targets to gain leverage over companies, even those that were previously viewed as unapproachable because of their large size. Today, relatively small positions can provide a platform for disproportionate influence, as in the case of ValueAct’s 0.8% position in Microsoft and Pershing Square’s 1% position in Procter & Gamble. [9]

In addition, some institutional investors are pushing companies to change policies and practices, adopting tactics traditionally associated with activists. For example, the California State Teachers’ Retirement System recently co-sponsored a proposal with activist fund Relational Investors in an effort to break up Timken Co. The two organizations objected to the Timken family holding three of 11 board seats while holding only 10% of the stock. [10]

The Shareholder Rights Project at Harvard Law School has targeted staggered boards of directors with remarkable success. In 2012 and 2013, 58 of the 61 declassification proposals submitted by the Shareholder Rights Project and the investors it represents that went to a vote were passed by shareholders, with an average of 81% of votes cast in support; many other companies declassified by settlement. [11]

To prepare for potential activities like those described above, companies must be mindful of a growing list of red flags that can draw the attention of activists and corporate governance experts and have led to engagement requests or activist campaigns: [12]

Directors are responding by engaging more frequently with the company’s owners

Forward-thinking directors have moved to mitigate the impact of the shifting balance of power toward shareholders by engaging with longer-term shareholders. SDX participants reported that this type of engagement has become increasingly common.

Activists and corporate governance campaigners can use the presence of the red flags noted above as a lever to gain shareholder support for their initiatives, and failure to engage with shareholders can only bolster their efforts. James Woolery, chairman-elect of Cadwalader, Wickersham & Taft LLP, recently made this point: “Unable to effectively communicate with their boards, shareholders are routinely turning to aggressive activism … Boards that don’t engage with their investors on a continuing basis risk making themselves vulnerable to activists eager to exploit the lack of communication.” [13]

Objective self-analysis by companies can identify points of vulnerability that could lead to engagement requests or more disruptive forms of shareholder activism. Having a clear view of a company’s vulnerabilities may lead the board to undertake an engagement process with shareholders designed to listen to concerns and explain the board’s approach to strategy, business challenges, and compensation, for example. A company’s corporate secretary can help the board and its nomination and governance committee by surfacing current governance issues, as well as any specific items cited by the company’s largest shareholders.

Both investors and directors are realizing significant value from direct engagement

While shareholder activism is often the trigger for board-shareholder engagement, interaction between shareholders and directors is increasing simply because it is seen as beneficial to both parties. Engagement improves transparency, mutual understanding, and the overall quality of governance in the market. Engagement can also reduce friction and transaction costs.

SDX participants noted that engagement benefits companies by enabling them to do the following:

• Demonstrate quality of board oversight. Direct engagement gives boards the opportunity to present their processes, philosophy, and rationales with respect to specific corporate governance issues important to shareholders. In doing so, boards can improve the perception of, or enhance the awareness of, the company’s unique business context and the quality and thoughtfulness of board efforts. Explaining a board’s processes also builds a valuable sense of the board’s accountability.
• Create direct and open channels for substantive and productive communication. Proactive engagement in the normal course of business, on clearly defined engagement topics, creates channels of communication between the board and representatives of its shareholders and can help the company provide context for the business environment and explain key strategic or governance decisions. The development of professional relationships arising from this process—and the experience directors gain through engagement—can improve targeting of communication and greatly enhance outcomes when directors solicit shareholder support in times of corporate crisis (e.g., activist attack, proxy battle, etc.).
• Better understand investor perspective of business and governance issues. Investors have an informed view of the company and its competitive landscape, both on an absolute basis and relative to its peers. Boards can gain valuable insight on how company management and strategy is perceived by the market. Investors can also be a source of insight on the attributes and skills desirable in board members or, in some cases, a source of candidates to consider for board membership.
• Influence proxy-voting decisions. Companies can move the percentage of votes for or against a proposal, either when engagement is requested or by requesting engagement. For example, companies can seek engagement to provide context for the board’s thinking and enable investors to cast fully informed votes. This may convince investors to take an exception from their proxy-voting guidelines.

Likewise, SDX participants noted that engagement benefits investors by enabling them to do the following:

• Evaluate board effectiveness. Investors gain real insight into boardroom composition, capabilities, function, and dynamics by meeting with a company’s directors.
• Create direct and open channels for substantive and productive communication. Direct engagement creates channels for communication and can create a history of good-faith engagement with respect to corporate governance issues. Investors may receive better reaction to their own requests and perspectives when there is a track record of engagement.
• Better understand director perspective of business and governance issues. Hearing a director explain the board’s approach offers a unique window into the company that enhances the investor’s understanding of the company’s situation and thinking.
• Influence governance policies and practices. Direct engagement gives investors the opportunity to present unfiltered views and can persuade a company to reconsider and change corporate governance policies and practices. Investors can communicate their concerns directly to the board and potentially avoid the need to file a shareholder resolution or take a public position on a proxy item. Investors can use engagement to better inform their voting decisions and to supplement their overall investment thesis regarding a company.

Perceived barriers to engagement can be avoided or addressed

Some key objectives of the SDX Protocol are to address legacy practices and concerns that have historically kept directors from engaging with their shareholders and to provide solutions to issues that could be problematic. The table below outlines concerns and responses that SDX participants identified.

The SDX™ Protocol process

The work of the Shareholder-Director Exchange has been supported by Tapestry Networks, Cadwalader, Wickersham & Taft LLP, and Teneo Holdings, together with Broadridge Financial Solutions. Tapestry, Cadwalader, and Teneo conducted interviews with public company directors, institutional investor representatives, subject matter experts, and other thought leaders about shareholder-director engagement. For a list of working group participants and others interviewed in connection with the SDX, please see Appendix 2. The SDX Protocol reflects a majority perspective on detailed recommendations. [15]

Tapestry, Cadwalader, and Teneo can be contacted to discuss the SDX Protocol more generally or to provide further context and information with respect to shareholder-director engagement. Broadridge can be contacted to discuss the SDX Protocol and alternative methods in which engagement can be scaled to incorporate retail and other individual investor classes. For contact information for Tapestry, Cadwalader, Teneo, or Broadridge, please see Appendix 3.

The SDX™ Protocol

The Shareholder-Director Exchange Protocol (SDX Protocol) was created by a working group of leading independent directors and representatives from some of the largest and most influential long-term institutional investors. The group came together to provide guidance to other investors and directors about the growing trend towards shareholder-director engagement.

The working group has devised the SDX Protocol to assist public company boards and institutional investors who wish to consider engagement by providing a practical framework for effective, mutually beneficial engagement. Although the SDX Protocol can be utilized in the context of a corporate crisis, it is intended to be a broader template for addressing corporate issues in the normal course of business.

Conclusion

Companies and investors often miss valuable opportunities to engage. While the SDX Protocol does not offer a one-size-fits-all approach to engagement, it does provide meaningful guidance and concrete suggestions from seasoned engagement practitioners. It is offered in service to public company directors and investors to enable them to more effectively make and respond to engagement requests.

The SDX Protocol can accessed in its entirety here.

Endnotes:

[1] SDX and the SDX logo are trademarks of Tapestry Networks, Inc., Cadwalader, Wickersham & Taft LLP, and Teneo Holdings, LLC.
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[2] Working group participants and others interviewed in connection with the development of the SDX Protocol are identified in Appendix 2.
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[3] Securities and Exchange Commission Chair Mary Jo White, “Remarks at the 10th Annual Transatlantic Corporate Governance Dialogue” (speech, December 3, 2013). Note that SDX participants do not wish to subordinate management’s primary role with respect to investor relations, but rather to provide an additional mechanism for engagement with a company’s owners. Management’s role is addressed more fully in the text box “Management’s role.”
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[4] Linklaters, “Activist Investors Turn Up the Heat in Global Boardrooms,” news release, November 11, 2013.
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[5] Ibid.
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[6] James C. Woolery, “Bridging the Chasm Between Boards and Shareholders,” Wall Street Journal, October 9, 2013.
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[7] Linklaters, “Activist Investors Turn Up the Heat in Global Boardrooms.”
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[8] Woolery, “Bridging the Chasm Between Boards and Shareholders.”
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[9] Company and investor filings.
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[10] Louis M. Thompson, “When Pension Funds Turn Activists,” Compliance Week, December 17, 2013.
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[11] Lucian Bebchuk, Scott Hirst, and June Rhee, “Towards Board Declassification in One-Hundred S&P 500 and Fortune 500 Companies,” Harvard Law School Forum on Corporate Governance and Financial Regulation (blog), October 30, 2013.
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[12] This list will likely evolve over time. Corporate secretaries can ensure their boards are kept up to date with the latest thinking in governance to avoid unwelcome surprises.
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[13] Woolery, “Bridging the Chasm Between Boards and Shareholders.”
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[14] Broadridge and PwC, “2013 Proxy Season Recap,” ProxyPulse, accessed January 11, 2014.
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[15] Participation was in an individual capacity and neither these individuals nor the institutions with which they are affiliated necessarily endorse all aspects of the SDX Protocol.
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