5REASONS IT SUCKS

OF DIRECTORSTO BE ON THE BOARD

and what to do if you still want to join

01Directors can be sued for breach of duties. Heck, they

can even be sued because they were perceived to have made bad decisions or failed to ask the right

questions or offer the right challenges to management.

The fact that you don’t think you breached any duties, didn’t understand your duties, or even that you didn’t breach anything, does not mean you’re

protected from lawsuits or that you’ll win!

And, win or lose, lawsuits can bankrupt you personally.

LIABILITY

02Get caught up in a Dysfunctional Board, and I guarantee that you’ll waste a lot of emotional energy into stress, anger, regret, and anxiety.

Dysfunctional Boards have a lot conflict, may be driven by politics & egos, micromanage

operations, contain members who do not possess the right level of expertise to govern, discuss

short-term status rather than long-term strategy, and produce ineffective or idiotic decisions.

EMOTIONAL TRAUMA

03Usually, joining a board is good for your

reputation, and that is good because once you hit your career stride, rep is critical.

However, if you end up on a Dysfunctional Board, or get publically sued or shamed, your ep can be

irreparably damaged.

EMBARRASMENT

04Being on a board can be incredibly rewarding.

However, any returns (financial, personal, or educational) will come at a significant cost of time,

especially for immature boards, executive teams, or directors.

If you are to execute your duty of care (and protect yourself from breach), you need to be prepared to

invest quite a bit of time, especially if you are on sub-committees, and especially if those are the risk,

remuneration, or audit sub-committees.

POOR ROI

05In many jurisdictions, if you are a Director of a firm that goes bankrupt, you have continuing

restrictions, such as the inability to start a new company.

BANKRUPTCY AFTERTASTE

so, given that being on the board is actually pretty rewarding and

you’re going to go ahead despite all this, how can

you protect yourself?

01Board members have specific accountabilities vis-à-

vis shareholders and management. They also have specific roles and deliverables in the execution of

their role. Finally, each board has governance processes (like voting)

You must be crystal clear on all this, and be confident in your ability to deliver, before you agree to join a

board. If there is a lack of absolute clarity, don’t join the board.

In the eyes of the law, ignorance of your fiduciary duties is negligence, not defence.

UNDERSTAND YOUR LIABILITY

02While Directors & Officer’s Insurance does not

protect against negligence, it is useful in all other cases. Even the best run firms may experience claims

from shareholders or other parties.

Understand the indemnification & insurance provided for Directors – what’s covered and to what value, and

are expenses covered up front.

GET D&O INSURANCE

03Before you join, understand how the business works

Also, check out any previous or ongoing legal issues and understand whether the firm is at financial risk so that you understand how risky the business model is.

Talk to the company’s auditor if possible.

Finally, understand the shareholders. Who are they, how powerful are they, what are their goals, how

aggressive are they, etc?

UNDERSTAND THE BUSINESS

04Talk to all existing board members before you join.

You should be personally comfortable with them (trust, even). You should understand their functions on the board, and be convinced that they have the

skills & experience required to deliver.

You should also understand your role, time commitments, and other expectations, and agree that you fit in & will have time / energy to deliver.

Finally, you should be happy that the board and its sub-committees are meeting frequently enough to

perform their role.

CHOOSE THE RIGHT BOARD

05Make sure that professionalism and compliance

makes up the core of the boards culture. Remember, the failure to implement an effective compliance and

ethics programme may breach the board's duty of care, giving rise to at least the potential for personal

liability against directors.

Make sure that the company, board, and executives (especially if the chairman is also the CEO)

understand and are committed to good governance and compliance.

Do not accept a role as a rubber stamp.

FIND THE RIGHT CULTURE

06The ability of directors to perform their duties is tied

directly to the quality of information the board receives from management and how it is evaluated

Make sure that the executives are prepared to get you the operational data you need for oversight and

that you can get the data regularly and/or far in advance of board meetings.

This is especially critical if you end up on sub-committees like audit, finance, or risk.

GET THE RIGHT DATA

07Don't worry as to whether management likes you. Be

able to ask them the tough questions, and have a healthy level of scepticism (without being abusive or

negative -- but don't wimp out either).

Make sure you trust them. If they don’t get you what you need to perform your role, it is you who are liable

for your duty of care, not them.

CHOOSE THE MANAGEMENT

08Your role is not to run the company. It is to provide

governance, oversight, and strategic direction. Don’t allow yourself to get caught up in the weeds.

DON’T MICROMANAGE

09Make sure that the key processes are nailed down, documented formally and transparently, and followed:

• Appointing directors• Assessment of the effectiveness of the Board and all Directors• Executive & directoral remuneration

In addition, the Board should:

• Establish an Audit Committee with clear authorities and duties and perform independent internal audit

• Regularly Review company controls and ensure they are sound• Communicate often and effectively with shareholders

ENSURE PROPER PROCESSESxxx

10You are an expert and are expected to act in the best

interests of the shareholders, who you represent.

You are expected to have the good business judgement of an expert and to be attentive, though you are allowed to take reasonable business risk in

good faith.

If you are shown to be asleep at the wheel, or to make heinous decisions, this is considered negligent,

and makes you liable.

ACT WITH CARE

11As a representative of the shareholders, you have the

duty to avoid conflicts of interest and to put the interests of the firm ahead of your own (self-dealing,

compensation, poaching, trading on inside information, fraud, entrenchment, etc) .

ACT WITH LOYALTY

Please note that all content & opinions expressed in this deck are my own and don’t necessarily represent the position of my current, or any previous, employers

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