Corporate Governance f o r M a i n M a r k e t a n d a i M C o M p a n i e s

Corporate Governance f o r M a i n M a r k e t a n d a i M C o M p a n i e s

Shepherd and Wedderburn is one of the UK s eading aw firms. We have an uncompromising commitment to our cients, with quaity at the heart of everything we do. Our cients agree. Technicay and commerciay exceent, their experience shines through and makes the cient experience superb. They have an understanding of our business objectives and they are seen as an integra part of the business team. CHAMBERS 2012 For more information contact Water Bake at water.bake@shepwedd.co.uk London Edinburgh Gasgow Aberdeen www.shepwedd.co.uk

18. Managing directors conficts Water Bake, Shepherd and Wedderburn LLP Historicay, with their roots in the common aw regime, the rues on conficts of interest have been difficut for directors to navigate. This task shoud have been made easier by the introduction of a statutory framework for conficts under the Companies Act 2006 (the Act), which became effective on October 1, 2008. Whie the Act has not reay simpified or carified the rues on conficts, or significanty affected what is expected from directors in terms of behaviour, it has restated those rues in a statutory context. Overview The Act sets out seven genera duties owed to a company by a director, three of which reate directy to directors conficts of interests. These are: to avoid a situation in which a director has, or can have, an interest that does or may confict with the interests of the company of which he is a director not to accept benefits from third parties to decare any interest in a proposed transaction or arrangement with the company. The duties are owed to the company, not to any individua sharehoder(s) who may, in imited circumstances, take action to enforce the duties in the name of the company. In addition, there is a separate obigation (not, stricty speaking, a genera duty) to decare any interest in an existing transaction or arrangement with the company. Faiure to compy with this obigation (unike the genera duties) is a crimina offence. There was considerabe debate around the time that the new statutory provisions came into force over the extent to which they changed the existing common aw rues. It is now generay accepted that they modified the common aw rues on directors conficts in two key respects. First, directors now have the power to authorise certain conficts of interest that previousy coud ony be authorised by sharehoders. Second, certain transactions or arrangements between directors and the company are now permitted (without the need for separate authorisation) provided they have been appropriatey discosed to the other directors. Duty to avoid conficts of interest Under Section 175 of the Act, a director must avoid a situation in which he has, or can have, a direct or indirect interest that conficts, or possiby may confict, with the interests of the company. This has come to be known as a situationa confict. The duty ony appies to situations arising after October 1, 2008. It appies in particuar to the expoitation of any property, information or opportunity, whether or not the company coud take advantage of it for its own purposes. The duty does not appy to transactions or arrangements with the company (athough it appears to catch transactions or arrangements with subsidiaries of the company), which are generay subject to separate discosure (as opposed to authorisation) requirements under Sections 177 and 182 for proposed and existing transactions respectivey. As discussed beow, however, certain transactions between a director and the company require specific sharehoder approva. The scope of the Section 175 duty is very broad. It appies to both actua and potentia conficts and, athough principay aimed at preventing directors from expoiting situations for their own benefit at the company s expense, it aso catches confict Post-IPO considerations Managing directors conficts Page 137

situations where the director does not benefit personay (for exampe, where he is a director of two or more group companies whose interests confict). The definition of confict of interest incudes a confict of interest and duty, and a confict of duties. Authorisation of conficts by directors Section 175 gave directors a new power to authorise situationa conficts of interest. The duty to avoid situationa conficts is not breached if the reevant matter has been authorised in advance by the directors, provided that: in the case of a pubic company, the company s constitution aows the directors to give the authorisation in the case of a private company, the company s constitution does not contain anything that invaidates the authorisation. Many pubic companies have amended their artices of association to take advantage of the authorisation regime. Private companies incorporated before October 1, 2008 must pass a sharehoder resoution giving directors the power to authorise. Authorisation of a situationa confict under the new statutory power must be given at a quorate meeting of the board of directors. The authorisation is ony effective if quorum requirements are met without the reevant director voting or woud have been met without his votes being counted. Generay, conficted directors shoud not attend a board meeting (or the reevant part of the meeting) at which the matter is being considered. Each board member, in considering whether to authorise a confict of interest, wi of course need to consider his other duties incuding, in particuar, the overriding statutory duty to act in a way that he considers, in good faith, woud be most ikey to promote the success of the company for the benefit of its sharehoders as a whoe. Authorisation by the company The directors power to authorise situationa conficts does not repace or restrict the power of the company whether through sharehoder resoutions or provisions in the artices to authorise matters that woud otherwise be a breach of the directors genera duties (see safe harbours, beow). GC100 guidance on conficts of interest In January 2008, the GC100, a grouping of the senior ega officers of more than 85 FTSE 100 companies, pubished a detaied note on conficts of interest. This provides hepfu guidance on the exercise of the Section 175 power to authorise conficts and reated issues. The GC100 aso pubished a suggested checkist for company secretaries, a draft briefing paper for directors and a questionnaire designed to hep directors identify conficts of interest. The Association of British Insurers has advised that isted companies shoud undertake to foow emerging best practice in ine with GC100 guidance. Duty not to accept benefits from third parties Under Section 176 of the Act, a director must not accept a benefit from a third party conferred by reason of his being a director or doing (or not doing) anything as a director. The duty is intended to prevent a director from expoiting his position for his own benefit. The duty does not prevent a director from receiving benefits from either the company, an associated body corporate or a person acting on behaf of the company or an associated body corporate; or from a person by whom his services (as a director or otherwise) are provided to the company. Page 138 Managing directors conficts

The duty is wide enough to catch gifts and corporate hospitaity. However, it is not breached if the acceptance of the benefit cannot reasonaby be regarded as ikey to give rise to a confict of interest. As such, ow-eve gifts or corporate hospitaity in the norma course of business are unikey to resut in a breach. The duty sits aongside the UK Bribery Act 2010 and other egisation intended to combat bribery and corruption. Companies shoud ensure that their poicies and procedures for deaing with bribery and corruption are kept up to date and that directors are aware of their responsibiities. Decaring interests in transactions or arrangements with the company Proposed transactions with the company (Section 177) A director has a statutory duty to decare to the other directors the nature and extent of any interest, direct or indirect, in a proposed transaction or arrangement with the company. Authorisation by the directors under Section 175 of the Act is not possibe; that authorisation procedure ony appies to situationa conficts (and not to conficts of interest arising in reation to a transaction or arrangement with the company). Consequenty, for a proposed transaction or arrangement with the company, the directors have to decide whether to proceed and, if so, whether any specia conditions shoud appy to dea with the confict. The decaration must be made before the company enters into the transaction or arrangement, and a director shoud aso update any previous decaration of interest if it proves to be, or becomes, inaccurate or incompete. The requirement to update previous decarations is not subject to a materiaity threshod, so a reativey trivia change coud trigger that obigation. Existing transactions with the company (Section 182) There is a separate requirement for a director to decare to the other directors the nature and extent of any interest, direct or indirect, in an existing transaction or arrangement with the company. This may happen, for exampe, when a new director is appointed and has some interest in a pre-existing transaction. There is no need to decare an interest in an existing transaction or arrangement if that interest has aready been decared as a proposed transaction, athough directors wi have to provide an update for previous decarations if they prove to be, or become, inaccurate or incompete. The decaration must be made as soon as possibe and it is a crimina offence (rather than a breach of duty) to fai to decare an interest in an existing transaction (or to update a previous decaration) in accordance with Section 182. Decaring interests under Sections 177 and 182 A decaration under Section 182 must (and a decaration under Section 177 may) be made at a meeting of the directors, by notice in writing to the other directors (emai can be used if the directors agree) or by genera notice to the other directors. A genera notice, for these purposes, shoud state that the director has an interest in a particuar entity or is connected to a specified person and he/she is therefore to be regarded as interested in any future transaction or arrangement with that entity or person. The genera notice shoud state the nature and extent of the director s interest in the other entity or the nature of the connection to the other person. The notice shoud be given at a meeting of the directors, faiing which the director shoud take reasonabe steps to have it brought up and read at the next meeting after the genera notice has been given. Post-IPO considerations Managing directors conficts Page 139

As a concession to common sense, directors are not required to decare interests (or update previous decarations) if they are not aware of the interest or the reevant transaction or arrangement. Directors are, however, presumed to be aware of matters of which they ought reasonaby to be aware. There is no need to decare an interest if the other directors are aready aware (or ought reasonaby to be aware) of it, or if it concerns the terms of a director s service contract that has been or is being considered by the other directors. Safe harbours No reasonabe ikeihood of a confict There is no breach of the various statutory provisions if the reevant matter cannot reasonaby be regarded as ikey to give rise to a confict of interest. It wi not aways be easy for directors to determine whether particuar circumstances fa within this safe harbour and, where there is any doubt, they shoud decare the matter and seek director and/or sharehoder authorisation as appropriate. Authorisation of confict by the company or under its artices of association There is no breach of the genera duties (incuding Sections 175, 176 and 177 of the Act) if: the company has specificay or generay authorised (whether by sharehoder resoution or through the artices of association) an act or omission by any or a of the directors that woud otherwise constitute a breach; or there are provisions in the company s artices deaing with conficts of interest, and those provisions have been foowed. As a practica matter, sharehoder approva under this safe harbour where it can be readiy obtained may we be the best soution for resoving a confict if there is any doubt as to the avaiabiity of another exemption or safe harbour. Specific transactions requiring sharehoder approva There is no breach of the genera duties on conficts of interest under Sections 175 and 176 of the Act where sharehoder approva for specific transactions is required and that approva has been obtained. Transactions where such approva may be required incude directors ong-term service contracts, substantia property transactions, oans, quasi-oans and credit transactions, and payments for oss of office. Ratification Sharehoders can ratify any breach of the genera duties on conficts of interest by ordinary resoution or unanimous approva. The vote of the conficted director, and any sharehoder connected to him, cannot be counted for the purpose of any ratifying resoution. Consequences of breach An action for breach of duty wi generay be brought against a director by the company. Remedies for breaches of the duties set out above may incude an injunction, setting aside of the transaction, restitution and account of profits, restoration of company property hed by the director, damages, or termination of the director s service contract. As stated above, faiure to compy with Section 182 is a crimina offence. Duties continue after cessation of directorship Certain statutory duties continue even after a person has ceased to be a director. A former director has a continuing obigation to avoid a confict of interest under Section 175 in reation to the expoitation of any property, information or opportunity of which he became aware whie he was a director. There is aso a continuing duty not to accept benefits from third parties under Section 176 in reation to things done or not done whie a director. Page 140 Managing directors conficts

Managing directors conficts Benchmarking and briefing directors Companies wi wish to monitor best practice in this area and consut their ega and other advisers where appropriate. Companies shoud aso ensure that directors are aware of their statutory duties as we as the reevant interna poicies and procedures. These shoud be covered in the induction process for new directors. Continuing duty Directors need to monitor their persona positions on an ongoing basis in order to identify any actua or potentia conficts of interest that shoud be avoided or authorised under Section 175, or decared or updated under Sections 177 or 182. Directors shoud aso be reminded that reputationa damage can easiy resut from a situation that may not technicay constitute a breach of duty or other obigation reating to conficts of interest. Consider the provisions of artices Many companies wi have updated their artices of association to refect the statutory provisions on conficts of interest around the time those provisions came into force in October 2008. Any requirements in the artices reating to notification, quorums and voting shoud be carefuy foowed. Directors other duties In considering whether to authorise a confict of interest under Section 175, each non-conficted director must have regard to his other duties, incuding the overriding duty to act in a way he considers, in good faith, woud be most ikey to promote the success of the company for the benefit of its sharehoders as a whoe. Anticipate issues Directors shoud seek to anticipate the types of issues that coud arise from a confict situation. For exampe, where the director is aso a director of a competitor or represents a major sharehoder, there is penty of scope for difficuties. Directors shoud seek to identify and consider such issues as soon as possibe. Post-IPO considerations Authorisations It may be appropriate to make any authorisation subject to conditions or restrictions, such as pacing a time imit on the authorisation or stating that it can be revoked at any time, and restricting the discosure of confidentia information. Review of authorisations Companies shoud keep a record of authorisations that have been granted and put in pace procedures to review authorisations from time to time, perhaps annuay. Annua report The Association of British Insurers has indicated that it woud expect boards of isted companies to report annuay that there are procedures in pace to dea with conficts of interest and that they operate effectivey. Managing directors conficts Page 141

Situationa conficts Exampes of situations where a director coud face an actua or potentia confict may incude: Where the director is, or has been, appointed by a private equity investor In considering whether to grant authorisation, the directors wi need to have regard to their genera and other duties to the company, incuding the duty to act in a way they consider, in good faith, woud be most ikey to promote the success of the company for the benefit of the sharehoders as a whoe. In practice, the directors wi often wish to authorise this type of confict, especiay where the private equity investor has a contractua right to appoint a director. They may, however, wish to attach conditions to any authorisation in order, for exampe, to safeguard confidentia company information and to set out what shoud happen if circumstances change. Where a director is, or in some way represents, a customer, suppier or competitor of the company This situation coud arise, for exampe, where the wife of a director is empoyed by a competitor of the company, or where a director aso serves on the board of a company that is a customer or competitor. The other directors wi need to consider whether they wish to authorise such conficts given their genera and other duties. The matter may be reativey straightforward if they beieve that the arrangement brings cear benefits to the company (such as access to the director s particuar expertise or industry knowedge) and that the confict can be appropriatey managed (through, for exampe, safeguards to protect confidentia information). Where a director is, or in some way represents, an adviser of the company If the directors are prepared to authorise this type of confict situation in the particuar circumstances, it is ikey that the company wi aso agree that the director has no obigation to discose confidentia information that he obtains through his roe with the adviser. By way of reciprocation, it is aso ikey that the adviser wi agree that the director has no obigation to discose confidentia company information. Where a director is aso a director of the corporate trustee of the company pension scheme Companies may consider authorising this type of confict through the artices of association in order to avoid the need to go through the Section 175 procedure each time there is a change of reevant personne. The directors shoud of course consider the surrounding circumstances carefuy before authorising the confict. A director who is aso a director of the company pension scheme trustee wi need to monitor his position continuousy to identify any actua or potentia conficts. The Institute of Chartered Accountants in Engand and Waes and the Pensions Reguator have each pubished hepfu guidance on conficts of interest for trustees of company pension schemes. Page 142 Managing directors conficts

Other areas for consideration Listing Rues reated-party transactions The rues on reated party transactions contained in the Listing Rues (LR) may be reevant for certain conficts invoving directors of isted companies, as the definition of reated party incudes a company s current, and certain previous, directors. The rues set out in LR11 and appying ony to companies with a Premium Listing are intended to prevent reated parties from taking advantage of their position and to prevent any perception that they may have done so. Reated-party transactions require (among other things) sharehoder approva in accordance with LR 11.1.7R, athough there are some exceptions and aso modified requirements for certain smaer transactions. Takeover Code management buyouts Under the Takeover Code, where an offer is a management buyout or simiar transaction, a director of the target company wi normay be regarded as having a confict of interest if it is intended that he/she shoud have any continuing roe (whether in an executive or non-executive capacity) in either the acquiring or target company in the event of the offer being successfu. Where a director has a confict, he/she shoud not normay be joined with the remainder of the board in the expression of its views on the offer, and the nature of the confict shoud be ceary expained in the target board s circuar. Any conficted director shoud discose the confict to the other directors as soon as possibe. The target company wi wish to put certain safeguards in pace, incuding setting up an independent committee of the board to dea with the proposed transaction, so that conficted directors are excuded from the discussions. The board committee wi aso need to give specific consideration at an eary stage to the discosure of confidentia information by a conficted director to third parties. Concusion Athough the Companies Act 2006 has codified the rues on directors conficts of interest in a statutory context, this remains a compex area for companies and directors. The new UK regime on directors conficts has, however, probaby resuted in: more attention being paid to conficts (actua and potentia) by companies and directors the adoption by many companies of more forma procedures for deaing with conficts directors being ess ikey than before to fa fou of the rues on conficts, particuary if they foow deveoping best practice. Post-IPO considerations Managing directors conficts Page 143

Shepherd and Wedderburn LLP Condor House, 10 St Pau s Churchyard, London EC4M 8AL Te +44 20 7429 4900 Web www.shepwedd.co.uk Other offices Edinburgh, Gasgow, Aberdeen Water Bake Partner, London Emai water.bake@shepwedd.co.uk Water Bake is a corporate partner based in the firm s London office. He has acted on numerous corporate transactions, incuding IPOs, secondary issues and M&A, invoving UK and internationa companies. His cients incude corporates from a range of industry sectors, as we as a number of investment banks. As part of his roe, Mr Bake reguary advises companies and boards on corporate governance issues.

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