Yearly Archives: 2017

Stock Trades of SEC Employees

Shivaram Rajgopal is the Roy Bernard Kester and T.W. Byrnes Professor of Accounting and Auditing at Columbia Business School; Roger M. White is an Assistant Professor of accounting at Arizona State University W.P. Carey School of Business. This post is based on a recent article by Professor Rajgopal and Professor White, forthcoming in the Journal of Law and Economics.

In March 2009, H. David Kotz, then Inspector General (IG) of the SEC, released a report outlining the questionable trading activity of two lawyers employed by the SEC’s enforcement division. IG Kotz admitted in subsequent testimony before Congress that the SEC lacked a compliance system capable of tracking and auditing employees’ trades [1]. This report and testimony, as well as the accompanying public outrage, spurred Mary Shapiro, then SEC Chairman, to impose new, stricter internal rules, beginning in August of 2010, whereby SEC employees must (i) refrain from buying or selling stocks of firms under SEC investigation; (ii) have their transactions pre-approved, and; (iii) order their brokers to provide transaction-level information to the SEC. [2]

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ISS Final 2018 Voting Policies

Andrew R. Brownstein, David A. Katz, and Andrea K. Wahlquist are partners at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell publication by Mr. Brownstein, Mr. Katz, Ms. Wahlquist, Sabastian V. Niles, and S. Iliana Ongun.

Proxy advisory firm Institutional Shareholder Services (ISS) has announced its final U.S. voting policies for the 2018 proxy season, which will apply to stockholder meetings held on or after February 1, 2018. ISS had previously released draft proposals on several (though not all) of the topics in October. Changes to non-U.S. voting policies were also announced.

Shareholder Rights Plans. In order to “simplify” ISS’s approach to rights plans and “to strengthen the [ISS] principle that poison pills should be approved by shareholders in a timely fashion,” ISS will now recommend voting against all directors of companies with “long-term” (greater than one year) unilaterally adopted shareholder rights plans at every annual meeting, regardless of whether the board is annually elected. Short-term rights plans will continue to be assessed on a case-by-case basis, but ISS’s analysis will focus primarily on the company’s rationale for the unilateral adoption.

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Introduction to the Tax Cuts and Jobs Act

The following post is based on a publication from Paul, Weiss, Rifkind, Wharton & Garrison LLP, authored by Robert Fleder, Andrew Gaines, Alan Halperin, Patrick Karsnitz, David Sicular and Scott Sontag.

On November 2, 2017, House Ways and Means Committee Chairman Kevin Brady (R-TX) released a comprehensive tax reform bill titled the “Tax Cuts and Jobs Act,” on November 3, 2017 Chairman Brady proposed an Amendment in the Nature of a Substitute to the bill and on November 6, 2017 Chairman Brady proposed an Amendment to the Amendment in Nature of a Substitute to the bill (together, the “Act”). The Ways and Means Committee (the “Committee”) will consider the Act this week, and the Senate Finance Committee expects to release its version of a tax reform bill shortly after the Committee finishes its markup of the Act. The Republican legislators’ stated goal is to reach an agreement on a single tax reform bill before the end of 2017. Given the compressed timeline to consider changes to the Act, the extensive nature of the changes under consideration and the larger political context, it is hard to predict with any certainty which proposals in the Act, if any, may ultimately become law.

In its current form, the Act would make a number of significant changes to the U.S. federal income taxation of both individual taxpayers and businesses, including:

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A Practical Guide to Virtual-Only Shareholder Meetings

Steven M. Haas is a partner and Charles L. Brewer is an associate at Hunton & Williams LLP. This post is based on a Hunton & Williams publication by Mr. Haas and Mr. Brewer. This post is part of the Delaware law series; links to other posts in the series are available here.

Last year, a record number of public companies held virtual-only shareholder meetings, which are now permitted in Delaware, Virginia, and numerous other states. Despite some shareholder opposition, we believe this trend is likely to continue. This post provides a comprehensive overview of practical issues that a company must consider in deciding whether to switch to, and then how to implement, virtual-only shareholder meetings.

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Congruence in Governance: Evidence from Creditor Monitoring of Corporate Acquisitions

David Becher is David Cohen Research Scholar and Associate Professor of Finance; Thomas Griffin is a Ph.D. Candidate in Finance; and Greg Nini is Assistant Professor of Finance, all at Drexel University LeBow College of Business. This post is based on their recent paper.

Corporate creditors play an important role in firm governance. For example, Lee Enterprises, Inc. reported in their third quarter 2008 financial statement that “the Company’s strategies are to increase its share of local advertising through increased sales activities in its existing markets and, over time, to increase its print and online audiences through internal expansion … [and] acquisitions.” [1] The company financed these plans, in part, with a credit facility containing a minimum net worth covenant. In the fourth quarter, Lee’s net worth fell below the contractual limit, resulting in a violation of the credit agreement. To remedy this, Lee Enterprises and their lenders amended the credit agreement to “modify other covenants, including restricting the Company’s ability to make additional investments and acquisitions without the consent of its Lenders.” [2]

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Weekly Roundup: November 10–16, 2017


More from:

This roundup contains a collection of the posts published on the Forum during the week of November 10–16, 2017.

Changes in CEO Stock Option Grants: A Look at the Numbers


New House Bills on Securities Offerings


Social Media and Proxy Contests


Benefits of CEO Pay Ratio Guidance



CEO Pay Ratios: What Do They Mean?



Deal Activism: Lessons from the EQT Proxy Contest




Activism Mergers


Corporate Disclosure of Human Capital Metrics


SEC Clarifications for Non-GAAP M&A Disclosures


Break Fees and Broken M&A Deals


The 10 Highest-Paid Boards of Directors



The Economics of PIPEs

The Economics of PIPEs

Jongha Lim is Assistant Professor of Finance at California State University Fullerton Mihaylo College of Business and Economics; Michael Schwert is Assistant Professor of Finance at The Ohio State University Fisher College of Business; and Michael S. Weisbach is Ralph W. Kurtz Chair in Finance at The Ohio State University Fisher College of Business, and Research Associate at the National Bureau of Economic Research. This post is based on their recent paper.

Private placements of equity, commonly referred to as “PIPEs,” are an important source of financing for many public corporations. According to PrivateRaise, a leading database on PIPE transactions, between 2001 and 2015, there were 11,296 private placements of common stock by U.S. listed firms that raised $243.9 billion. Firms raising funds through PIPEs tend to be small, with 93% of common stock PIPE issuers having market capitalization below $1 billion. As a point of comparison, U.S. firms with market capitalization below $1 billion raised $240.3 billion in SEOs over the same period.

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Employee Reaction to CEO Pay Ratio Disclosure

Jim Kohler is a director, Steve Seelig is a senior regulatory advisor, and Rich Luss is a senior economist with Willis Towers Watson. This post is based on a Willis Towers Watson publication by Mr. Kohler, Mr. Seelig, and Mr. Luss. Related research from the Program on Corporate Governance includes The Growth of Executive Pay by Lucian Bebchuk and Yaniv Grinstein.

The question of how to provide context for their CEO pay ratio proxy disclosure has been one companies have been turning to as they near completion of their calculation work. One perspective on this issue has come from a recent ISS Position Paper that recommends companies include in their disclosure a comparison to peer group disclosures. We would make the case that taking an approach that focuses solely on placing the pay ratio in context for shareholders is likely at odds with the message companies want to communicate to their employees, which they’ve expressed to be their biggest challenge regarding the pay ratio. For more on this topic, see our article, “Employee reaction tops U.S. companies’ concerns over fast approaching, pay ratio disclosure rule“, Executive Pay Matters, October 18, 2017. Moreover, we believe that the data that led ISS to its conclusions would lead far too many companies to conclude their pay ratios are too high, prompting them to provide unnecessary explanations that could trigger negative employee reactions.

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The 10 Highest-Paid Boards of Directors

Dan Marcec is Director of Content at Equilar, Inc. This post is based on an Equilar publication by Mr. Marcec.

Though board of directors’ pay pales in comparison to that of CEOs, compensation for board service can inch into the half-million dollar range—and in a few cases, may be much higher. Below is a list of the highest-paid boards of directors at large-cap companies, based on annual retainers awarded to all non-employee directors, according to Equilar data.

Company Name Annual Director Retainer
Regeneron Pharmaceuticals $2,074,085
Tesla $1,664,928
The Goldman Sachs Group $575,000
Salesforce.com $550,000
Celgene Corporation $524,871
Reynolds American $496,480
Valeant Pharmaceuticals International $475,000
Allergan PLC $450,000
Everest Re Group, Ltd. $447,030
Oracle $429,172

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Break Fees and Broken M&A Deals

Oliver E. Browne is a partner at Latham & Watkins LLP. This post is based on a Latham publication by Mr. Browne, Catherine Campbell, and Ashleigh Gray.

Given ongoing competition between buyers in a strong sellers’ market, the resilience of seller break fees as a feature of the European M&A market is surprising. According to the Latham & Watkins 2017 European Private M&A Market Study (which examined over 190 deals signed between July 2015 and June 2017), 10% of European private M&A transactions featured a seller break fee, slightly up from 8% in 2016.

“Break fee and reverse break fee quantum ranges greatly based on transaction factors. Examples of reverse break fees in UK public M&A in the first half of 2017 ranged from 1% to 2.5% of the deal value.”

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