Governance Best Practices & Practical Strategies
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1 Governance Best Practices & Practical Strategies PRESENTATION MATERIALS September 22, 2016 FOSTER PEPPER PLLC 618 West Riverside Avenue, Suite 300 Spokane, Washington
2 Table of Contents Presentation Speaker Bios Lara Hemingway, Foster Pepper PLLC Paul D. Fitzpatrick, Foster Pepper PLLC Presented by:
3 Presentation
4 GOVERNANCE BEST PRACTICES & PRACTICAL STRATEGIES Spokane Business Roundtable Series September 22, 2016 Lara Hemingway Paul D. Fitzpatrick Presentation Overview Corporate Governance Basics Clearly Defining Roles Effective Risk Management Emphasizing Integrity and Ethics Performance Evaluation and Compensation Decisions 2 1
5 Disclaimer This presentation gives overviews and summaries of otherwise very complex and detailed areas of law. Depending on the facts and circumstances of a particular matter, the statements in this presentation may or may not specifically apply. 3 Section 1: Corporate Governance Basics 2
6 What is Governance? Mechanisms by which business entities make decisions and take actions Large bodies of law surround Corporate Governance for incorporated entities LLC s and Partnerships have lesser governance requirements, but can still take advantage of best practices in business governance Corporate rules and practices can act as a guide for good governance practices 5 Differences in Entity Type: Corporation A corporation is governed by a Board of Directors, who are elected by the Shareholders to oversee the operations of the business in the best interests of the Shareholders The Board of Directors delegates management authority to Officers of the Company The roles and responsibilities of the Directors and Officers are captured in the Company Bylaws 6 3
7 Differences in Entity Type: LLC An LLC can generally be governed in two different ways Member Managed Manager Managed Either category can involve multiple parties who must agree by majority to the actions to be taken by the LLC The Member and Manager roles, responsibilities and obligations are captured in the Operating Agreement for the LLC 7 Differences in Entity Type: Partnership General Partnership A partnership can be formed merely by two people agreeing to enter into an enterprise for profit together Yes, you can have oral partnerships and no governing documents In general, the partners control the operations of the partnership together and are all liable for the activities of the partnership Primary governance document is a Partnership Agreement Limited Partnerships More complex partnership structures exist that limit the liability of certain partners, but the details of these are beyond our scope today 8 4
8 What Does the Governing Body Govern? Approves and recommends changes to the governance documents for an entity Ensures the occurrence of necessary meetings and approvals from entity owners (shareholders, LLC members, partners or limited partners) Unless delegated, the governance body should approve any official actions of the Company, such as Contracts Financial Transactions Debt Financing Compensation Approval Employees, Directors and Owners Tax Returns Ownership Changes 9 Core Governance Duties Duty of Care: Directors must perform their duties with the care that a person in a like position would reasonably believe appropriate under similar circumstances The Board must make decisions with all available and material information Must act in a deliberate and informed manner Must act to promote the best interest of the company based on a reasonable investigation of the options available 10 5
9 Core Governance Duties Duty of Loyalty: Directors much perform their duties in good faith and in a manner the director reasonably believes to be in the best interests of the Company This requires Directors to put the interest of the Company ahead of his/her own interests Any diversion of corporate opportunities, assets or information for personal gain is a violation of the duty of loyalty Conflict of interest policies and procedures are essential 11 Section 2: Best Practice - Clearly Defining Roles 6
10 Define Roles and Responsibilities The Board s role is oversight Management s role is operations 13 Define Roles and Responsibilities Delegation of Oversight to Committees By resolution By Committee Charter 14 7
11 Define Roles and Responsibilities Committees Chairperson runs meeting; ensures minutes are taken Committee Charter defines responsibilities and scope of authority Most common committees Nominating/Governance Compensation Audit/Finance 15 Roles and Responsibilities Delegation of Operations Responsibility To employee Officers Via Bylaws Via job descriptions/employment Agreements Via reporting responsibilities Note any questions requiring follow up to the Board and ensure answers are given in a timely manner 16 8
12 Section 3: Best Practice - Effective Risk Management Risk Management As the strategic leaders of the Company, the Board s focus on Risk Management is key Establish the company s risk tolerance Develop a framework for managing risk 18 9
13 Risk Management Identify both short and long term risks Consider those that currently exist and those that are emerging Review and guide the framework that management develops to manage these risks 19 Risk Management Establish a framework to consider risks and manage oversight Identify Assess Mitigate Monitor Report These elements should be documented and considered with respect to each risk that has been indentified 20 10
14 Best Practice - Emphasizing Integrity and Ethics Integrity and Ethics Tone starts at the Top Management and the Board should clearly share a strong commitment to ethics and integrity 22 11
15 Integrity and Ethics Conflict of Interest Policy Directors and Management must recuse themselves from discussions and votes on matter in their own interest Business Code of Ethics Policy Emphasize the Company s culture of integrity in business dealings Respect for and compliance with laws and policies without fear of recrimination/retaliation Process for reporting and dealing with non-compliance with the policy Whistleblower Policy 23 Integrity and Ethics Make someone responsible for oversight and management of these policies and procedures HR Finance Third party services Responsible party should report to the Board on incidents covered by the policy Anonymously Time to resolve Steps taken to address concerning trends 24 12
16 Best Practice - Performance Evaluation and Compensation Decisions Performance Evaluations The Board should regularly review and evaluate the performance of the CEO and other top management The Board should regularly review and evaluate its own performance and the performance of its Committees 26 13
17 Performance Evaluation Establish measureable targets for executive officers Regularly assess and evaluate performance against these goals Goals can be about financial return or completion of business and administrative tasks 27 Compensation Decisions Performance evaluations will typically confirm and support the compensation decisions Independence is key here Ideally, the Compensation Committee is Outside Directors CEO and other Officers should exit the meeting for the discussion 28 14
18 Director Compensation Seek market information Consider what is a reasonable rate for hours spent Per meeting fees (Board and Committee) Additional fees for Chairing a committee Compensation Committee should consider the details and recommend director fee levels to full Board for approval 29 Practical Strategies 15
19 Practical Strategies Delegate it Document it Calendar it 31 Practical Strategies: Delegate Management is tasked with doing the heavy lifting of establishing the processes and procedures to carry out governance in their respective area Assign risks Assign reporting Committees may be assigned oversight and report back to the Board in full Finance/Audit: CFO Compensation: HR Governance/Nomination: CEO 32 16
20 Practical Strategies: Document Ensure that delegation of authority is captured explicitly in writing Does committee have power to act or only power to oversee and report? At what level does management need to escalate to the Board? What is the authority threshold? Documentation is a double-edged sword. Best practice is to document and follow what the document says. 33 Practical Strategies: Document Where is the delegation documented? By resolution In minutes discussion (less official, less favored) Committee charter Management job description Company Policies 34 17
21 Practical Strategies: Calendar Use of a Board Calendar will ensure that all tasks are addressed regularly and timely Tie each task to a meeting date Each reporting requirement Each Committee charter responsibility Each discussion and approval that must occur 35 Practical Strategies: Calendar Start with decision timing Year-end bonuses (December or in Q1?) When are insurance policy renewals? What other tasks much occur at the same time each year for your business? Look at when information is available Best Example - Financial reporting review generally cannot happen comprehensively until after fiscal year-end 36 18
22 Practical Strategies: Calendar Create a balanced calendar by spreading out other tasks When is there a room on the meeting agenda as to fill in non-time sensitive tasks? Code of Conduct reporting Board/Committee evaluations Consider how items may be shifted to balance the meeting agendas throughout the year 4 quarterly meetings/6 meetings/12 monthly meetings Should an extra meeting be added? Can timing be moved, For instance, ask your insurance broker about establishing a different renewal date that coincides with a better time in your business workflow 37 Disclaimer The presenters and their law firm make no express or implied warrantees regarding the accuracy of the information presented and direct the users of this information to seek advice from counsel of their choosing regarding any particular matter generally or specifically addressed by this presentation. Lara Hemingway Paul Fitzpatrick lara.hemingway@foster.com paul.fitzpatrick@foster.com 38 19
23 20
24 Speaker Bios
25 Lara L. Hemingway OF COUNSEL SPOKANE T F lara.hemingway@foster.com SERVICES Business Employee Benefits & Executive Compensation Employment & Labor Mergers & Acquisitions Nonprofit & Tax-Exempt Organizations PRACTICE OVERVIEW Lara has over 15 years of experience as a transactional lawyer, primarily counseling clients in the areas of employee benefits and executive compensation. She has managed employee, compensation and benefit issues in merger and acquisition transactions as both in-house and outside counsel. Currently, her practice focuses on Employee Stock Ownership Plan (ESOP) transactions, involving the purchase or sale of companies in deals involving an ESOP. Lara regularly counsels clients on compliance issues related to employee benefits and executive compensation matters. She has experience in designing, drafting and implementing qualified and nonqualified retirement plans, equity based compensation programs, employment and severance agreements, change in control provisions and welfare benefit programs. She has experience advising trustees, plan fiduciaries and plan administrators on fiduciary matters related to both ERISA and trust law generally. Lara has served as an adviser to human resource professionals on employment issues, from hiring through termination, as well as advising executive management and boards of directors on corporate governance, equity compensation, and SEC reporting related to compensation matters. She has also assisted small businesses and nonprofit corporations with formation, governance and compliance issues. REPRESENTATIVE WORK Advised publicly held companies on proxy statement Compensation Discussion and Analysis. Implemented a deferred compensation program for top executives and directors at a publicly held company, including program design and documentation, and advised on ongoing administration of program, including Top Hat eligibility requirements, deferral and election considerations and Rabbi Trust funding. Advised public and private companies on Code Section 409A compliance and corrections for nonqualified deferred compensation arrangements. Designed and implemented equity compensation programs for publicly held companies, including plan and award documentation, grant considerations, and administration over the life of the program. 1
26 Lara L. Hemingway OF COUNSEL SPOKANE T F lara.hemingway@foster.com Advised companies on qualified plan administration, including investment committee duties and charter, plan sponsor considerations, and governance related to plan sponsor and committee activities. Advised public and private companies on employee benefits and executive compensation issues in merger and acquisition transactions, including due diligence review, drafting and negotiating new employment agreements for top executives, benefit plan integration, COBRA, 401(k) plan mergers or terminations, SERP and executive salary continuation plan issues, and other employee related issues applicable to the transaction. Advised financial institutions on TARP/EESA/ARRA and troubled institution FDIC regulations related to executive compensation. Took minutes, prepared materials and provided governance advice to boards and board committees primarily on issues related to executive compensation, equity awards and fiduciary matters. Advised closely held companies on 401(k) profit sharing plan design, implementation, amendment and on-going administration. ACTIVITIES Spokane Public Library Board of Trustees, Trustee, 2016-Present Spokane County Bar Association, Member ESOP Association, Member National Center for Employee Ownership, Member Northwest Autism Center, Board Member, 2002-Present National Institute of Pension Administrators Spokane Chapter, Board Member, Spokane County Bar Association Young Lawyers Division, Trustee, EXPERIENCE Foster Pepper PLLC, Of Counsel, 2015-Present K&L Gates, Counsel, 2015 Umpqua/Sterling Bank, SVP Associate General Counsel, Witherspoon Kelley, Shareholder, Preston Gates & Ellis, Special Projects Attorney, PUBLICATIONS HIPAA Privacy and Security It s About People, Not Technology, Author Pension and Benefit Plan Alert Major Changes May Be Required in Author PRESENTATIONS Leveraged Employee Stock Ownership Plan Transactions Liquidity and Legacy, Speaker Practicing Law, Speaker, Gonzaga University School of Law Panel Discussion At Long Last The Final 403(b) Regulations, Speaker Liability of Non-Profit Organizations, Speaker Fiduciary Duties Fiduciaries Around Every Corner, Speaker Management of Medical Records in Washington, Speaker Practice Conditions Forum, Panel Member, WA Young Lawyers Division Section 125 Cafeteria Plans Legal Compliance, Speaker 2
27 Lara L. Hemingway OF COUNSEL SPOKANE T F lara.hemingway@foster.com HIPAA Compliance A Practical Approach, Speaker BAR ADMISSIONS Washington, 2000 EDUCATION LL.M., Taxation, University of Washington School of Law, 2001 J.D., University of Washington School of Law, 2000 B.A., University of Washington,
28 Paul D. Fitzpatrick MEMBER SPOKANE T F paul.fitzpatrick@foster.com SERVICES Business Estate Planning Mergers & Acquisitions Nonprofit & Tax-Exempt Organizations Real Estate Tax PRACTICE OVERVIEW With more than 35 years of legal practice in Spokane and Northern Idaho, Paul brings extensive experience in estate planning and administration, small business, federal estate and gift tax, real estate law and tax-exempt organizations to the firm. He has worked extensively with families to effectively preserve and transition assets and businesses to successive generations. Additionally, Paul has provided a wide variety of business clients with legal services ranging from buy-sell agreements, business sales and acquisitions, third party contracts and real estate leases and loan documentation. He is an accredited estate planner with the National Association of Estate Planning Councils. RECOGNITION The Best Lawyers in America Trusts and Estates, , 2017 Washington Super Lawyers list, ACTIVITIES Washington Bar Association ARC of Spokane Spokane Guild s School Inland Northwest Community Foundation Spokane Symphony QUOTED Expertly Given, Wheat Life, Washington Association of Wheat Growers, April 2015 PUBLICATIONS The Bottom Line: The Washington Uniform Transfer on Death Act, Author, Wheat Life, Washington Association of Wheat Growers, July 2015 :The Bottom Line: Uncovering Hidden Estate Taxes in Your Estate, Author, Wheat Life, Washington Association of Wheat Growers, February
29 Paul D. Fitzpatrick MEMBER SPOKANE T F paul.fitzpatrick@foster.com Ownership by Fiduciaries and Transfers Upon Death, Author, Washington State Bar Association Real Property Desk Book, 4th Edition, Chapter 2, 2013 Community Property and Joint Tenancy Proceedings or Agreements Affecting Title, Author, Washington State Bar Association Real Property Desk Book, 3rd Edition, Chapter 73, 1996 Uniform Transfer to Minor Pamphlet for Public Dissemination, Author, Washington State Bar Association, 1995 Revocable Living Trust Pamphlet for Public Dissemination, Author, Washington State Bar Association, 1995 PRESENTATIONS Business Succession Planning Practical Considerations and Techniques, Speaker, Foster Pepper Client Briefing, May 2016 EXPERIENCE Foster Pepper PLLC, Member, 2015-Present K&L Gates + Of Counsel, Partner, Fitzpatrick Law Group, PS, Witherspoon, Kelley, Davenport & Toole, PS, BAR ADMISSIONS Washington, 1978 Idaho, 2002 U.S. District Court + Eastern District of Washington EDUCATION LL.M., University of Florida Levin College of Law, Taxation, 1977 J.D., Gonzaga University School of Law (cum laude), 1976 B.A., Washington State University,
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