Yearly Archives: 2018

Principles and Best Practices for Virtual Annual Shareowner Meetings

Anne Sheehan and Darla C. Stuckey are Co-Chairs of The Best Practices Committee for Shareowner Participation in Virtual Annual Meetings. This post is based on a report by The Best Practices Committee for Shareowner Participation in Virtual Annual Meetings. The Committee consists of interested constituents, comprised of retail and institutional investors, public company representatives, and proxy and legal service providers.

State laws require companies to hold annual meetings of their shareowners to elect directors and to allow their shareowners to vote on matters in which a vote by shareowners is required for approval. In that context shareowners may be permitted to ask questions about items on the ballot prior to voting. The annual meeting often also serves as an opportunity for management to update the company’s shareowners on company developments and to review the company’s performance. It also can be an opportunity for shareowners to ask questions of management and directors about the business of the company if they wish to do so. It is generally accepted that shareowner participation should be welcomed and encouraged at a company’s annual meeting of shareowners.

READ MORE »

CEO Pay Ratio: A Deep Data Dive

Jessica Phan is a research analyst at Equilar, Inc. This post is based on an Equilar publication by Ms. Phan.

The introduction of the CEO Pay Ratio has created interest not only in how CEO compensation compares against pay for a company’s median employee, but also how employee pay compares across companies and industry sectors. The SEC required companies with a fiscal year beginning on or after January 1, 2017 to disclose their CEO pay ratio for the first time, and with the proxy filing deadline for these companies passing on April 30, a critical mass of data is now available for analysis.

The Equilar CEO Pay Ratio Tracker aggregates weekly and provides cumulative results on the lowest, median, and highest CEO pay ratios. With over 2,000 data points available as of May 10, 2018, the median pay ratio was 70:1 for all Russell 3000 companies and 166:1 for all Equilar 500 companies.

READ MORE »

US Contentious Situations Update

Cristiano Guerra is Head of Special Situations Research, Institutional Shareholder Services, Inc. This post is based on an ISS publication by Mr. Guerra. Related research from the Program on Corporate Governance includes Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here).

As the U.S. proxy season is heating up, activity in contentious situations remains as energetic as ever, with a healthy number of high-profile company targets, personal disputes, and even unexpected shareholder alliances. While it is still relatively early in the year, we begin to see some interesting patterns. Many of the largest companies that have been targeted by activists appear to prefer the settlement route instead of proceeding to full-blown proxy contests, continuing a trend observed in the past three years. The newer trend we see pertains to an increased number of “vote no” campaigns that are primarily motivated by concerns related economic or strategy-related issues. Some of these campaigns stem from dissatisfaction with company performance or disagreements about strategic decisions, while some take place in lieu of proxy contests.

READ MORE »

Do Founders Control Start-Up Firms that Go Public?

Jesse Fried is the Dane Professor of Law at Harvard Law School and Brian Broughman is Professor of Law at Indiana University. This post is based on their recent paper. Related research from the Program on Corporate Governance includes Renegotiation of Cash Flow Rights in the Sale of VC-Backed Firms, by Jesse Fried and Brian Broughman (discussed on the Forum here).

Startup founders, who typically must cede control of their firms to obtain VC financing, are widely believed to regain control in the event of an IPO. This view is reinforced by the media salience of prominent founders such as Facebook’s Mark Zuckerberg, Google’s Sergey Brin and Larry Page, and Snap’s Evan Spiegel. Trevor Kalanick’s loss of the CEO position before Uber’s anticipated IPO seems to be the exception that proves the rule.

Indeed, the possibility of founder control-reacquisition via IPO underlies an influential theory for why venture capital requires a robust stock market (Black & Gilson 1998). On this theory, an IPO-welcoming stock market makes possible a VC exit that can return control to founders, enabling VCs to implicitly give founders a valuable “call option on control” that they can exercise if successful. VCs’ ability to offer this call option, this theory claims, makes VC financing more acceptable to control-loving founders and can thereby spur more founder-VC “deals.”

READ MORE »

Directors’ Notes: A Trap for the Unwary?

David A. Katz is partner and Laura A. McIntosh is consulting attorney at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton publication by Mr. Katz and Ms. McIntosh that originally appeared in the New York Law Journal.

“To take notes or not to take notes—that is the question” often asked in corporate board rooms today. As a matter of good governance, it is important that the minutes serve as the single, clear, official record of each in-person or telephonic board and committee meeting. Board materials that are circulated and discussed at the meeting should be part of the official record and either attached to the minutes or maintained in the corporate secretary’s files, as appropriate. In connection with significant transactions, board minutes will be reviewed by third parties for diligence purposes and to confirm that all appropriate (and required) actions have been taken. Moreover, these minutes will be scrutinized closely in the event that a decision taken at the board meeting is subsequently challenged in litigation or otherwise. Directors should use caution in creating or retaining any notes, texts or emails that could be considered an unofficial record of a board meeting. Directors’ notes and emails are discoverable in litigation and can confuse or even undermine the official account of the meeting in question. Various forms of notes—paper, electronic, and email—raise slightly different issues, all of which directors need to understand in advance of their creation.

READ MORE »

China as a “National Strategic Buyer”: Towards a Multilateral Regime for Cross-Border M&A

Jeffrey N. Gordon is Richard Paul Richman Professor of Law at Columbia Law School and Curtis J. Milhaupt is Professor of Law at Stanford Law School. This post is based on their recent paper.

Unlike the case of cross-border trade, there is no explicit international governance regime for cross-border M&A; rather, there is a shared understanding that publicly traded companies are generally available for purchase to any bidder—domestic or foreign—willing to offer a sufficiently large premium over a target’s stock market price. This expectation is of course limited by the shifting boundaries of host country protectionism and the prevailing patterns of corporate ownership in different countries.  But the unspoken premise that undergirds the system is that the prospective buyer is motivated by private economic gain-seeking.

READ MORE »

Regulatory Reform Should Spur Consolidation

Edward D. Herlihy and Richard K. Kim are partners at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell publication.

[The May 22, 2018] passage by the House of Representatives of a bill raising the “SIFI threshold”—the threshold for banks to be deemed systemically important financial institutions and subject to more burdensome regulation—from $50 billion to $250 billion brings welcome relief that should spur bank M&A activity. Now that the bill has passed both chambers of Congress, all that remains is for the President to sign it in order for the Economic Growth, Regulatory Relief and Consumer Protection to become law. He is expected to do so prior to Memorial Day. No other factor has had more of an impact on bank M&A than regulation and this will be the first piece of legislation passed in nearly twenty years that is aimed at encouraging, rather than deterring, bank consolidation.

READ MORE »

The Xerox Takeover Saga

Steve WoloskyAndrew Freedman, and Ron Berenblat are partners at Olshan Frome Wolosky LLP. This post is based on an Olshan publication by Mr. Wolosky, Mr. Freedman, and Mr. Berenblat.

Related research from the Program on Corporate Governance includes Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here).

On April 27, 2018, the New York State Supreme Court issued an important decision temporarily blocking a proposed business combination between Xerox Corporation (“Xerox”) and Fuji Xerox Co., Ltd. (“Fuji Xerox”), the longstanding joint venture between Xerox and Fujifilm Holdings Corporation (“Fuji”). The “lynchpin” of the Court’s decision to block the transaction turned on the conduct of Xerox’s “massively conflicted” CEO Jeff Jacobson in negotiating the transaction, and the Board’s “acquiescence” to such conduct. The Court was convinced that once Jacobson learned that Carl Icahn, the largest shareholder, and the board of directors of Xerox (the “Board”) were seeking to replace him as CEO, he “abandoned the Board’s request to obtain a value-maximizing all-cash transaction and engineered the framework for a one-sided deal” with Fuji that would result in him retaining the CEO position with the combined company.

In addition to blocking the transaction, the Court enjoined Xerox from enforcing its nomination deadline for its 2018 annual meeting of shareholders (the “2018 Annual Meeting”), representing a monumental victory for shareholder activists. This post focuses on the Court’s decision to enjoin enforcement of the nomination deadline given the major impact we believe it will have on strategies that could be deployed by shareholder activists after a nomination deadline has passed.

READ MORE »

Labor Representation in Governance as an Insurance Mechanism

E. Han Kim is Everett E. Berg Professor of Business Administration at University of Michigan Ross School of Business; Ernst Maug is Professor of Corporate Finance at University of Mannheim Business School; and Christoph Schneider is Assistant Professor of Finance at Tilburg University. This post is based on their recent article, forthcoming in the Review of Finance.

Is labor representation on the board of directors bad? Not necessarily. It can improve risk sharing between employers and employees without hurting shareholders, according to our study on the German experience. Germany requires 50% employee representation on the supervisory board when firms have more than 2,000 employees working in Germany.

We study establishment-level data on employment and wages. (An establishment is any facility having a separate physical address, such as a factory, service station, restaurant, or office building.) Our sample covers the top 100 listed German firms during the period 1990-2008. We compare establishments belonging to firms required to have parity codetermination of 50% employee representation (parity firms, in short) with those belonging to firms not required to have 50% representation (non-parity firms). Employees working for parity firms are paid, on average, 3.3% less than employees of non-parity firms. These lower wages, we argue, represent an insurance premium, because when other firms in the same industry lay off more than 5% of the work force, parity firms do not lay off workers in any significant way. That is, parity firms protect their employees when others in the same industry go through a major restructuring of their work force. As such, we interpret the lower wages as insurance premiums workers pay in return for their employment guarantees.

READ MORE »

Taxes and Mergers: Evidence from Banks During the Financial Crisis

Albert H. Choi is Professor and Albert C. BeVier Research Professor of Law; and Quinn Curtis and Andrew T. Hayashi are Associate Professors at University of Virginia School of Law. This post is based on their recent paper.

One of the measures taken by federal authorities to manage the financial crisis in the fall of 2008 was a remarkable piece of administrative guidance from the IRS. Issued on September 30th of that year and less than a page long, IRS Notice 2008-83, which was styled as an interpretation of existing law, had a dramatic positive effect on the value of banks’ tax assets. The Notice effectively turned off with respect to banks an aspect of Internal Revenue Code Section 382 that generally restricts the ability of a corporation to use unrecognized tax losses from underperforming loans to offset taxable income from other sources if that corporation undergoes a significant change in equity ownership, including an acquisition.

READ MORE »

Page 50 of 86
1 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 86