Yearly Archives: 2010

Governance Problems in Closely-Held Corporations

This post comes to us from Venky Nagar, Associate Professor of Accounting at the University of Michigan, Kathy Petroni, Professor of Accounting at Michigan State University, and Daniel Wolfenzon, Professor of Finance and Economics at Columbia Business School.

The notion of balance of power, as any schoolchild or immigration test-taker knows, was central to our Founding Fathers’ conception of effective governance. Their deep insight on human behavior not only shaped our political institutions, but also cleanly translated to the design of modern corporations. As Berle and Means have noted, owners of a corporation that separates ownership from control have to remain ever-vigilant about expropriation by the controlling party. One way to achieve balance of power is to share ownership across individuals, so that no individual can unilaterally expropriate. However, the benefits of shared ownership are difficult to assess in public firms for two reasons. First, the large number of owners implies that each owner free rides with respect to the monitoring efforts of other owners (the individual owner may also not have the relevant expertise). Second, the liquid market of a company’s shares enables ownership structures to evolve endogenously. In equilibrium, the ownership structure of firms depends on their specific conditions and, as a result, it is difficult for an outsider to disentangle the effect of ownership structure from the effect of other firm characteristics.

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The Board’s Role in Succession Planning

Jeffrey Stein is a partner in the Corporate Practice Group at King & Spalding LLP. This post is by Mr. Stein, Bill Baxley and Rob Leclerc, and relates to a report on a recent meeting of the Lead Director Network, which is available here.

One of the most challenging aspects of the recent financial crisis has been the significant increase in the number of CEOs who have left their companies unexpectedly or on short notice. Despite this trend and the widespread view that succession planning is a critical board function, directors of many public companies are not fully satisfied with the effectiveness of their succession planning.

Against this background, the Lead Director Network, a group of lead directors, presiding directors and non-executive chairmen from many of America’s leading companies, met recently to discuss the board’s role in succession planning. Following this meeting, King & Spalding and Tapestry Networks have published the ViewPoints report here to present highlights of the discussion that occurred at the meeting and to stimulate further consideration of this subject.

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Worldwide Investor Preferences for Performance Measures

This post comes to us from Jan Barton, Associate Professor of Accounting at Emory University, Bowe Hansen, Assistant Professor at the University of New Hampshire, and Grace Pownall, Professor of Accounting at Emory University.

In our paper, Which Performance Measures Do Investors around the World Value the Most – and Why?, which was recently accepted for publication in the Accounting Review, we examine the value relevance of a comprehensive set of summary performance measures including sales, earnings, comprehensive income, and operating cash flows.

Academics and practitioners have recently begun to move away from proposing “better” measures of earnings to instead focusing on earnings quality attributes—such as persistence, predictability, smoothness, and timeliness—that may make a particular earnings measure more useful in equity valuation, especially if such attributes capture some dimension of information risk about the firm’s future performance.

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A Stewardship Code for Institutional Investors

Editor’s Note: Ben W. Heineman, Jr., the former GE Senior Vice President for Law and Public Affairs, is senior fellow at the Harvard Law School Program on Corporate Governance and the Harvard Law School Program on the Legal Profession, as well as senior fellow at Harvard Kennedy School’s Belfer Center for Science and International Affairs. This post is based on an article by Mr. Heineman published today in the Harvard Business Review Online.

The role of shareholders in corporate governance has become one of the hot-button issues following the credit melt-down and economic crisis. Would more active involvement by shareholders have helped to prevent or lessen the crisis?

Broadly speaking, there are those who believe that short-term institutional shareholders — with concern about making their own quarterly or annual numbers, with opaque governance and improper incentives for fund-managers — are part of the problem, and that they have been one of the causes of short-sighted, risk-indifferent behavior by financial institutions.

On the other hand, there are those who believe that longer-term institutional shareholders are part of the solution — that increased shareholder involvement in governance, not just through exercise of market power, is essential to creation of sustainable, long-term corporate value, and to holding boards of directors and senior business leaders accountable. Such shareholder proponents advocate regulation or voluntary corporate action on key issues like “say on pay” or “proxy access.”

A “third way” emerged late last year in the UK — a “Stewardship Code” for institutional investors.

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Risks to Overbidders Under Delaware Law

William Savitt is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton client memorandum by Mr. Savitt and Ryan A. McLeod, an associate in Wachtell Lipton’s Litigation Department. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

A recent Delaware Court of Chancery decision refusing to dismiss damages claims by NACCO Industries arising out of its failed attempt to acquire Applica Inc. provides important guidance for parties contemplating an overbid and highlights the risks that remain even after a topping deal is successfully closed. NACCO Indus., Inc. v. Applica Inc., C.A. No. 2541-VCL (Dec. 22, 2009).

The complaint alleged that while NACCO and Applica were negotiating a merger agreement in 2006, Applica insiders provided information to principals at the Harbinger hedge funds, which were then considering their own bid for Applica. During this period, Harbinger amassed a substantial stake in Applica (which ultimately reached 40 percent) but reported only an “investment” purpose on its Schedule 13D filings, disclaiming any intent to control the company. After NACCO signed up the merger, the complaint alleged, communications between Harbinger and Applica management about a topping bid continued. Eventually, Harbinger amended its Schedule 13D disclosures and made a topping bid for Applica, which then terminated the NACCO merger agreement. After a bidding contest with NACCO, Harbinger succeeded in acquiring the company.

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Looking Ahead at 2010 By Looking Back at 2009

Francis H. Byrd is Managing Director and Corporate Governance Advisory Practice Co-Leader at The Altman Group. This post is based on an Altman Group Governance and Proxy Review by Mr. Byrd.

Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning. – Sir Winston Spencer Churchill

Don’t look back. Something might be gaining on you. – Leroy (Satchel) Paige

As 2009 comes to a close and we prepare for the 2010 proxy season, it is time to contemplate the changes that have occurred, and what they might portend for 2010. The two quotes above seem to best encapsulate both the mood and the reality of those involved in corporate governance.

As 2009 started, advisors and observers hunkered down to weather all of the dramatic changes that appeared to be certainties: Proxy Access, ‘Say on Pay’ (SOP), and separation of the role of Chairman from that of Chief Executive would altered by legislative fiat or regulatory order. Yet despite all of the motion and noise, only one major governance change took place in 2009, that of the Securities and Exchange Commission amending the broker discretionary vote, NYSE Rule 452, relating to director elections. 2009 might have been an even more dramatic year for corporate governance had it not been for the Obama administration focus on health care. This shift in attention on the part of the White House has been cited by numerous commentators as a key reason for the decrease in momentum of financial and governance-related regulation and legislation.

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Court Takes Narrow View on Safe Harbor for Whistleblower Procedures in France

Edward Greene is a partner at Cleary Gottlieb Steen & Hamilton LLP focusing on corporate law matters. This post is based on a Cleary Gottlieb Steen & Hamilton Alert Memo.

On December 8, 2009, the French Cour de Cassation rendered an important judgment about the implementation of whistleblower procedures in France.

Since 2005, whistleblower procedures have been the subject of considerable controversy and difficulties in France. After prohibiting affiliates from McDonald’s Corporation and Exide Technologies from implementing whistleblower procedures required under the Sarbanes-Oxley Act, [1] the French Commission Nationale de l’Informatique et des Libertés (the “CNIL”) released guidelines (the “Guidelines”) summarizing its views on whistleblower procedures [2] and later implemented a safe harbor (the “Safe Harbor”) whereby whistleblower procedures are deemed authorized pursuant to a “unified authorization,” subject to certain conditions. [3]

Since the publication of the Safe Harbor, companies wishing to implement whistleblower procedures in France have three options: [3]

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Proposed Changes May Facilitate “Wall-Crossed” Offerings

Eduardo Gallardo is a partner focusing on mergers and acquisitions at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn client memorandum by Andrew Fabens, Glenn Pollner, Jamie Greenberg and Megan Olds.

On December 21, 2009, the Securities and Exchange Commission issued a proposed amendment to paragraph (c) of Rule 163 under the Securities Act of 1933, as amended. Rule 163 was initially adopted in 2005 as part of the SEC’s Securities Offering Reform, which, among other things, eased many of the “gun jumping” restrictions on communications by issuers and others in connection with registered securities offerings. The proposed amendments to Rule 163 would further ease some of these restrictions and may thereby facilitate so called “wall-crossed” offerings by well-known seasoned issuers, or WKSIs. [1]

As currently in effect, Rule 163 permits a WKSI to offer securities before filing a related registration statement. Such offers may be deemed made, for example, when discussions with potential investors take place to gauge market interest prior to broad public disclosure of a transaction. However, as currently drafted, Rule 163 applies only to communications made “by or on behalf of the issuer itself.” Other offering participants, such as underwriters or dealers, may not rely on this exception from the gun jumping restrictions. This limitation can create a significant impediment to a WKSI seeking to communicate with potential investors in advance of a securities offering, but has not filed an automatic shelf registration statement, or ASR, [2] covering the security to be offered.

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Acquirer-Target Social Ties and Merger Outcomes

This post comes to us from Joy Ishii, Assistant Professor of Finance at the Stanford Graduate School of Business, and Yuhai Xuan, Assistant Professor of Business Administration at the Harvard Business School.

In our recent working paper Acquirer-Target Social Ties and Merger Outcomes, we estimate the relationship between merger announcement returns and the extent of social ties between the top managers and directors of the two merging firms. We focus on educational institutions as well as employment history as the basis of the social networks that we use in our analyses.

Using a sample of 539 mergers between publicly-traded U.S. firms between 1999 and 2007, we find that acquirers’ announcement returns associated with a merger tend to be lower in the presence of many social connections. Upon examining the relationship between target announcement returns and social ties, we find no significant relationship that would indicate that targets are overpaid based on social networks. We then consider the acquirer and target weighted average announcement return for the combined entity and confirm that the overall effect of social ties is significantly negative, both statistically and economically. This supports the view that the negative impact of social networks outweighs whatever positive information-based effects might be present.

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Pros and Cons of Voluntarily Implementing Proxy Access

Charles Nathan is Of Counsel at Latham & Watkins and is Global Co-Chair of the firm’s Mergers and Acquisitions Group. This post is based on a Corporate Governance commentary by Latham & Watkins and Georgeson Inc.

Although many things about proxy access remain uncertain, it is clear the SEC remains committed to adopting a final rule in early 2010. The new rule will likely be effective for the 2011 proxy season.

In our previous Proxy Access Analysis No. 4 we observed that:

  • A critical question for companies and investors alike is whether the final rule will permit shareholders to adopt bylaws that impose greater limitations on proxy access than the SEC rule (for example, by raising the minimum number of shares that a nominating shareholder must own or increasing the holding period).
  • If the final rule does permit shareholders to adopt such a bylaw (commonly called an opt-out bylaw), it seems safe to assume many companies will propose opt-out bylaws to their shareholders in order to tailor proxy access better to the particular circumstances of each company.
  • It would make sense for companies to consider over the next several months whether they would prefer to propose an opt-out bylaw at their 2010 annual meetings, rather than waiting until their 2011 meetings or later.

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