Showing posts with label Gobierno Corporativo. Show all posts
Showing posts with label Gobierno Corporativo. Show all posts

Thursday, 2 April 2015

Board of Directors. Board, Board Members. Code of corporate governance of Spain. 2015

  1. Large part of the changes in the Good Corporate Governance Code relate to the board of directors and its specialised committees, to improve its efficient functioning and to favour the participation and dedication of its members:

I Meeting of the Board.-  It is recommended that the board meets at least eight times a year. 
II Board Members
  1. Non attendance.- If a director does not attend a meeting, it is recommended that he or she confers representation with precise voting instructions.                               
  2. Gender diversity is encouraged, promoting the objective that in 2020 the number of women directors represents at least 30% of the members of the board of directors.
  3. Independent directors are recommended to reach at least half of the total number of directors (or only a third in companies that do not have a high capitalisation or companies with one or various shareholders who jointly control more that 30% of the share capital).  
  4. Coordinating Director. The functions of the coordinating director ares extended with respect to those regulated by the Companies Act. He or she ought to be charged with keeping contact with investors and shareholders to learn about their opinions and concerns regarding the company's corporate governance.
  5. Conflicts of interests. It is recommended that companies publish on their websites any information on the remunerated activities performed by their directors, whatever their nature.
  6. Remunerations.

a.       Some recommendations are included towards there being a balance between the need to remunerate the directors' talent and dedication and promoting corporate sustainability and profitability at long term. It is recommended that the contract with the executive director includes the possibility that the company may claim reimbursement of the variable components of the remuneration when payment is not in line with performance conditions or when they have been paid in view of data that is later proved to be inaccurate.
b.      In relation to the termination compensation, it is recommended that a quantitative limit is established equal to the total annual remuneration for two years, and also that the compensation is not paid until the company has verified that the director has accomplished the established performance criteria.
III Board Structure. Commissions and Units
  1. Internal risk control and management unit. The Code recommends its creation under the supervision of the audit committee to the correct functioning of the company's risk control and management systems and monitor compliance of the policy defined by the Board.
  2. Nomination and remuneration committee, due to the importance given to the selection of directors and the plurality of technical considerations to be taken into account when establishing their remuneration systems, in high capitalization companies it is recommended that two separate committees be created, one for remunerations and the other for nominations,

CSR in the Corporate Governance Code of Spain. February 2015

Corporate Governance Code in Spain. New version, February 2015

  • On 24 February 2015 the regulatory body of the Spanish Stock Market (Comisión Nacional del Mercado de Valores, CNMV) published the new Unified Code on Good Corporate Governance for listed companies which substitutes the previous version from 2006, partly amended in 2013. 
  • The CNMV  had the support and assistance from the Committee of Experts on corporate governance created by agreement of the Council of Ministers on 10 May 2013 that also worked in drafting the Law 31/2014, published on 4 December 2014 and which amended the Companies Act in matters of corporate governance.
  • The new Good Corporate Governance Code excludes some recommendations of the previous Code as they have already been incorporated in a binding regulation. It  only includes matters subject to the principle of "comply or explain".
  • One of the fundamental changes in this Good Corporate Governance Code is the inclusion of recommendations related to the policy of corporate social responsibility, a matter that in recent years has aroused particular interest and awareness within and beyond our borders. This is why, for the first time, it is recommended that companies examine the impact their activity has on society and the minimum recommended content of the corporate social responsibility policy is established. Moreover, it is recommended that the company informs (whether in its management report or in a separate document) about matters related to corporate social responsibility.

Sunday, 1 March 2015



The amendments to the Revised Text of the Corporations Act (LSC), approved by Royal Legislative Decree 1/2010 of July 2, introduced by Law 31/2014 affect Directors’ duties, as it follows

1.- The reform provides important developments in the regulation of the legal status of the directors (functions, duties, liabilities and remuneration)
2.- Thus, in the case of the duty of care, the comprehensive reform of the general statement ("directors must perform and discharge  the duties imposed by the laws and statutes with the diligence of a prudent businessman, (...)"). Diligence in performing the duties should be assessed according to the functions assigned to each member of the board, thus taking into account the division of functions therein. (Article 225.1 LSC). The 2014 reform includes a duty to dedicate time in accordance with the position of each director (Article 225.2 LSC) as well as the duty to demand and the right to obtain from the company the information necessary (Article 225.3 LSC) 
3.- As for the duty of loyalty the Reform Act 31/2014 reinforces its regime expressly stating that it is mandatory: "The rules governing the duty of loyalty and liability for its violation are mandatory. Statutory provisions restricting this duty will be void (Article 230.1 LSC). It also
·         Reformulates the definition of generic duty: "Managers must hold their position with the loyalty of a faithful representative, acting in good faith and in the best interest of society" (Article 227.1 LSC).
·         Increases the detail in the definition of unfair behavior, completing the previous catalogue (especially on conflicts of interest), and dividing the content of the preceding Articles 227-230 and 232 LSC into two groups:
o    i) obligations derived from the basic duty of loyalty (new Article 228 LSC) and
o    ii) the duty to avoid conflicts of interest (new Article 229 LSC):
The former include the traditional duty of secrecy, abstaining from voting in cases of conflict of interest and acting independently without interference from third parties. The later refer to the duty not to take advantage of business opportunities of the Company and not to compete with the company.

The reform regulates dispensation from the obligations associated with the duty of loyalty (Article 230.2 LSC)in relation with conflicts of interests the waiver may be granted by the board, provided that it is safe for the company's assets , it takes place at market conditions, and with transparency. However, in the most relevant cases listed in Article 230.2 LSC, this is authorizing Directors to perform competing activities (it can only be waived when it is not expected to harm the Company) or the expected damage would be compensated by providing benefits obtained (Article 230.3 LSC). This waiver is granted by express and separate agreement of the general meeting. The duty of loyalty extends to de facto directors managers (art. 236.3 LSC).
The scope of the penalty for breach of duty of loyalty is extended because not only will bring the obligation to compensate the damage to the Company but also there would be an obligation to give back to the Company any unjust enrichment obtained (Article 227.2 LSC).

Wednesday, 7 January 2015

Business rule. USA. Delaware.Delaware Court of Chancery Applies Business Judgment Rule to Directors Who Approve Merger Supported by Large Shareholders

Delaware Court of Chancery Applies Business Judgment Rule to Directors Who Approve Merger Supported by Large Shareholders

20 November 2014
In its October 24, 2014, decision in In re Crimson Exploration Inc. Stockholder Litigation, C.A. No. 8541, the Delaware Court of Chancery confirmed that the business judgment rule is applicable in evaluating claims for breach of fiduciary duty asserted against directors who approve a merger that is supported by and favorable to large shareholders. The court held that such transactions will be reviewed under the business judgment rule, rather than the entire fairness standard, unless both of the following factors are present: (1) the large shareholder is actually a “controller” of the target, and (2) the controller is actually conflicted.
The court provided important guidance as to the factors that might cause a large shareholder to be considered a controller and a controller to be considered conflicted.
Background This case arose from the April 2013 stock-for-stock purchase of Crimson Exploration, Inc., an oil and gas company, by Contago Oil & Gas Co. Oaktree Capital Management, L.P. held approximately 33.7 percent of Crimson’s outstanding shares, and an Oaktree affiliate owned a significant portion of Crimson’s outstanding debt. The complaint also alleged a longstanding relationship between Oaktree and Crimson’s president and CEO. As side consideration to the merger, Oaktree sought and obtained a Registration Rights Agreement (RRA) so that it could sell its stock in the new entity in a private placement. Contago also agreed to pay off much of Crimson’s debt, including Oaktree’s portion, and paid a 1 percent prepayment penalty in order to do so.
Plaintiff shareholders sued, alleging that Crimson’s directors breached their fiduciary duties in approving the merger by accepting a purportedly inadequate price for the company. According to plaintiffs, Oaktree wanted the transaction undervalued for self-serving reasons. In particular, the plaintiffs alleged that Oaktree sought and obtained side consideration from Contago (the RRA and the prepayment of Crimson’s debts) in exchange for a lower purchase price. Plaintiffs further alleged that Crimson’s directors approved this plan because they were beholden to Oaktree, which was Crimson’s controlling stockholder.
Plaintiffs argued that the merger should be reviewed under the entire fairness standard, rather than the business judgment rule, because Oaktree was Crimson’s controller and dominated the board, and Oaktree’s interests were conflicted. Defendants disputed each of these points and moved to dismiss.
Control The court first considered whether Oaktree was truly a controlling stockholder of Crimson. Although Oaktree owned only 33.7 percent of Crimson’s shares, the court observed that “[e]xceeding the 50% mark . . . is only one method of determining whether a stockholder controls the company. A stockholder who exercises control over the business affairs of the corporation also qualifies as a controller.” Opinion at 24 (quotation omitted).
After surveying 10 cases where shareholders owned between 49 percent and 27.7 percent of the companies at issue, the court concluded that “a large blockholder will not be considered a controlling stockholder unless they actually control the board’s decisions about the challenged transaction.” Id. at 29. This “actual control test,” Id. at 24, could be satisfied through a showing that certain personalities “literally dominated,” Id. at 29, other board members, including through threats or intimidation. But “[a]bsent a significant showing” of such dominance, “the courts have been reluctant to apply the label of controlling stockholder – potentially triggering fiduciary duties – to large, but minority, blockholders.” Id. at 29-30.
Plaintiffs in this case also alleged that other shareholders, together with Oaktree, formed a control group. The court held that “multiple stockholders together can constitute a control group, with each of its members being subject to the fiduciary duties of a controller,” if the relevant stockholders are “connected in some legally significant way,” such as by agreement, rather than just “mere concurrence of self-interest among certain stockholders.” Id. at 37-38.
The court held that plaintiffs in this case did not sufficiently allege that Oaktree and others formed a control group, rather than simply sharing common interests. With respect to whether Oaktree, by itself, controlled Crimson, the court expressed significant skepticism, but – given the procedural posture of the motion to dismiss – declined to rule on this point.
Conflict of Interests Even if a shareholder is deemed to be controlling, the court explained, entire fairness review is not triggered unless the controller was conflicted with regard to the transaction at issue. In particular, the court held that there are two categories of conflicted transactions: “(a) transactions where the controller stands on both sides; and (b) transactions where the controller competes with the common stockholders for consideration.” Id. at 30.
The first category could include situations where the controller of the target also had an interest in the acquirer, or where the controller buys out other shareholders. In the second category, the court identified three subcategories:
(1) “‘disparate consideration’ cases,” Id. at 31, where the controller receives greater consideration for the merger than minority shareholders do;
(2) “‘continuing stake’ cases,” Id. at 32, where the controller receives continuing equity in the surviving entity; and
(3) “‘unique benefit’ cases,” Id. at 33, where the controller receives some other sort of benefit that is not shared with other stockholders.
Here, plaintiffs alleged a combination of “disparate consideration” (the prepayment of debt) and a “unique benefit” (the RRA). The court held that these allegations were insufficient to prompt an entire
fairness review.
First, the court refused to consider the prepayment as disparate consideration for the merger, because at the time the merger was signed, there was no agreement for Contago to pay Crimson’s debt. The court held that “side deals between an acquirer and a controller, which the board did not approve and to which the corporation is not a party, do not implicate entire fairness.” Id. at 44.
The court also rejected plaintiffs’ theory that Oaktree pressured the board to accept a dramatically reduced purchase price because Oaktree wanted to obtain for itself the benefits of the prepayment and the RRA. This theory made little sense, the court reasoned, because the value of these benefits to Oaktree would have been dwarfed by the loss in value to Oaktree, as a holder of more than 15.5 million shares, had the purchase price been artificially depressed. Plaintiffs argued, in response, that the RRA was particularly valuable because it would have provided Oaktree with the ability to sell many of its shares at a time when it needed liquidity. The court discounted this argument because, in the absence of a crisis situation or a fire sale, there was no clear indication that Oaktree’s need for liquidity was so acute that it would prefer the relatively low cash value of the RRA over the potential for a significantly higher aggregate share price if the merger consideration were not artificially depressed.
Accordingly, the court held that Oaktree, even if it was a controlling shareholder, was not conflicted by the merger; instead, its overall goal – to maximize the value of its shares – was the same as that of all other shareholders. Thus, the court declined to subject the merger to an entire fairness review.
Other Rulings Regardless of any shareholders’ status or actions, the entire fairness standard would still apply if a majority of the directors themselves were not disinterested and independent, and of course the presumptions of the business judgment rule could also be rebutted if the directors acted in bad faith. The court held that the plaintiffs’ allegations were insufficient to establish either of those exceptions.
The court further held that any remaining duty of care claims could not survive the exculpatory clause in Crimson’s certificate of incorporation, and that the aiding and abetting claims against Contago and against Crimson’s merger subsidiary were also dismissible. Finally, in light of its ruling on the motion to dismiss, the court denied a motion to intervene filed by another Crimson shareholder.
Conclusion Crimson Exploration illuminates the standard that will be applied in evaluating the duties of a large, minority shareholder, and the duties of directors serving on the boards of such corporations. Crimson Exploration makes clear that the courts will continue to apply the business judgment rule unless the large shareholder both qualifies as a controller and is actually conflicted.

Saturday, 1 February 2014

BlackRock to Spain: Must improve GC

BlackRock, la gestora de fondos más importante del mundo, con sede en Estados Unidos, ha instado a España a que mejore el gobierno corporativo de las cotizadas para proteger a los inversores. Los responsables de gobierno corporativo de esta firma de inversión enviaron una carta el pasado 9 de enero dirigida al regulador bursátil, la Comisión Nacional del Mercado de Valores (CNMV), que se encuentra inmerso en la revisión de la normativa de buen gobierno, para prestar apoyo a los planes iniciales de reforma, pero aprovecha sugerir algunos cambios más. El Pais 30 01 2014

Tuesday, 21 January 2014

Non for profit corporate governance

Weil’s Guide to Not-For-Profit Governance 2013 (2013)
Not-for-profit organizations play a significant role in our society by undertaking and providing funding for projects that benefit the greater good (see more...)
The Principles for Good Governance and Ethical Practice: A Guide for Charities and Foundations is designed to help organizations evaluate and improve their operations.See guide
Non for profit governance Index 2012 Seeç Spain.- Asociación Española de Fundaciones Código de Buen Gobierno

Sunday, 29 December 2013

Gobierno corporativo islámico. Nuevos estándares: capital y gestión de riesgos

  • The Islamic Financial Services Board has adopted two new standards:
    •  [1] IFSB-14: Standard on Risk Management for Takāful (Islamic Insurance) Undertakings; and
    • [2] IFSB-15: Standard on Revised Capital Adequacy for Institutions offering Islamic Financial Services (other than Takāful Institutions and Islamic Collective Investment Schemes).
      • For further information see here.