Corporate Governance Survey—2017 Proxy Season

David A. Bell is partner in the corporate and securities group at Fenwick & West LLP. This post is based on portions of a Fenwick publication titled Corporate Governance Practices and Trends: A Comparison of Large Public Companies and Silicon Valley Companies (2017 Proxy Season); the complete survey is available here.

Since 2003, Fenwick has collected a unique body of information on the corporate governance practices of publicly traded companies that is useful for Silicon Valley companies and publicly‑traded technology and life science companies across the U.S. as well as public companies and their advisors generally. Fenwick’s annual survey covers a variety of corporate governance practices and data for the companies included in the Standard & Poor’s 100 Index (S&P 100) and the technology and life science companies included in the Silicon Valley 150 Index (SV 150). [1]

Significant Findings

Governance practices and trends (or perceived trends) among the largest companies are generally presented as normative for all public companies. However, it is also somewhat axiomatic that corporate governance practices should be tailored to suit the circumstances of the individual company involved. Among the significant differences between the corporate governance practices of the SV 150 technology and life science companies and the uniformly large public companies of the S&P 100 are:

  • Dual‑Class Voting Stock Structure. Adoption of dual-class voting stock structures has emerged as a recent clear trend among Silicon Valley technology companies—among the mid-to-larger SV 150 companies—though it is still a small percentage of companies. Historically, dual-class voting stock structures have been significantly more common among S&P 100 companies than among SV 150 companies, though the frequency in the SV 150 (11.3% in 2016 to 10.9% in 2017) has surpassed the S&P 100 (9.0% in both 2016 and 2017) in recent years.
  • Classified Boards. Classified boards are now significantly more common among SV 150 companies than among S&P 100 companies. Compared to the prior year, classified boards remained fairly consistent, holding steady at 6.7% for the top 15 companies in the SV 150 while the S&P 100 has been at 4.0% since 2016.
  • Majority Voting. The rate of implementation of some form of majority voting has risen substantially over the period of this survey. The increase has been particularly dramatic among S&P 100 companies, rising from 10% to 97% between the 2004 and 2017 proxy seasons. Among SV 150 companies, the rate has risen from zero in the 2005 proxy season to 59.9% in the 2017 proxy season.
  • Stock Ownership Guidelines. The prevalence of stock ownership guidelines has generally increased over time in both groups but the SV 150 only recently surpassed the level of the S&P 100. This year’s edition of the survey includes additional detail regarding the minimum holding amount and period requirements for executives and directors.
  • Executives and Directors ‑ Equity, Voting Power Ownership. There is a clear multi-year trend that the distribution of simple equity ownership and voting power ownership skews higher among technology and life sciences companies in the SV 150 than among S&P 100 companies.
  • Board Diversity. 2017 continued the long-term trend in the SV 150 of increasing numbers of women directors and declining numbers of boards without women members. The rate of increase in women directors for SV 150 overall continues to be higher than among S&P 100 companies. When measured as a percentage of the total number of directors, the top 15 of the SV 150 now slightly exceed their S&P 100 peers (the top 15 averaged 25.4% women directors in the 2017 proxy season, compared to 23.9% in the S&P 100). Companies with at least one woman director went from 74% to 78.2% over the past year for the SV 150. Over a two-year period the percentage of companies with at least one woman director grew by 10 percentage points.
  • Board Size, Meeting Frequency, Leadership. Combined chair/CEOs existed at about one third of companies in the SV 150, while combined chair/CEOs exist at about 72% of S&P 100. SV 150 companies held board meetings more often in fiscal 2016, while S&P 100 companies decreased meeting frequency in 2016 (companies report meetings for the prior year). SV 150 companies, though, continued to skew noticeably toward fewer meetings compared to the S&P 100. Insider directors are more common among members of the boards of SV 150 companies than among board members at S&P 100 companies, though continuing a long-term downward trend. The number of directors also tends to be substantially lower among SV 150 companies than among S&P 100 companies.
  • Stockholder Proposals. Stockholder activism—measured in the form of proposals included in the proxy statements of companies—is substantially lower among the SV 150 than among S&P 100 companies. There is a current general downward trend of stockholder activism in both groups, although the SV 150 has had an upward trend in number of proposals in recent years. This year each group had just one contested director election. For more detail, please see our post, Silicon Valley and S&P 100: A Comparison of 2017 Proxy Season Results.
  • Executive Officers. The number of executive officers tends to be substantially lower among SV 150 companies than among the S&P 100, and there continues to be a general decline in the average number of executive officers per company in both groups. By contrast, the percentage of companies including General Counsel, Chief Legal Officer or Chief Technology Officer or engineering executive as “executive officers” have been on a long-term upswing.

Complete Coverage

In complete publication, available here, we present statistical information for a subset of the data we have collected over the years, updating for the 2017 proxy season. These include:

  • makeup of board leadership
  • number of insider directors
  • gender diversity on boards of directors
  • size and number of meetings for boards and their primary committees
  • frequency and number of other standing committees
  • majority voting
  • board classification
  • use of a dual‑class voting structure
  • frequency, coverage and details of executive officer and director stock ownership guidelines
  • frequency and number of shareholder proposals
  • number and makeup of executive officers

In each case, comparative data is presented for the S&P 100 companies and for the high technology and life science companies included in the SV 150, as well as trend information over the history of the survey. In a number of instances we also present data showing comparison of the top 15, top 50, middle 50 and bottom 50 companies of the SV 150 (in terms of revenue), [2] illustrating the impact of company size or scale on the relevant governance practices.

The complete publication is available here.

Endnotes

1The S&P 100 is a cross‑section of companies across industries, but is not a cross‑section of companies across all size ranges (it represents the largest companies in the United States). While the SV 150 is made up of the largest public companies in Silicon Valley by one measure—revenue, it is actually a fairly broad cross‑section of companies by size, but is limited to the technology and life science companies based in Silicon Valley. Compared to the S&P 100, SV 150 companies are generally much smaller and younger, have lower revenue. The 2017 constituent companies of the SV 150 range from Apple and Alphabet with revenue of approximately $218B and $90B, respectively, to Aemetis and DSP Group with revenue of approximately $143M and $138M, respectively, in each case for the four quarters ended on or about December 31, 2016. Apple went public in 1980, Alphabet (as Google) in 2004, Aemetis in 2007 and DSP Group in 1994. Apple and Alphabet’s peers clearly include companies in the S&P 100, of which they are also constituent members (eight companies were constituents of both indices for the survey in the 2017 proxy season), where market capitalization averages approximately $130B. Aemetis and DSP Group’s peers are smaller technology and life sciences companies that went public relatively recently and have market capitalizations well under $1B. In terms of number of employees, the SV 150 averages 9,500 employees (with a median of 1,800 employees), ranging from Hewlett Packard Enterprise with 195,000 employees spread around the world in dozens of countries, to companies such as Aemetis with 144 employees in the United States and India, as of the end of their respective fiscal years 2016. The S&P 100 averages 130,000 employees and includes Wal‑Mart with 2.3 million employees in more than two dozen countries at its most recent fiscal year-end.(go back)

2The top 15, top 50, middle 50 and bottom 50 companies of the SV 150 include companies with revenue in the following respective ranges: $8.4B or more, $1.6B or more, $380M but less than $1.6B, and $138M but less than $375M. The respective average market capitalizations of these groups are $178.8B, $66B, $3.3B and $1.2B.(go back)

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