The fourth article in our Winter 30.1 issue deals with “Say on Pay” rules, those corporate practices giving shareholders the right to vote on executive compensation. The assumption behind “Say on Pay” is that managers may be overpaid because directors fail to provide adequate oversight. Stephen O’Byrne questions this underlying assumption.
O’Byrne provides substantial evidence that directors do a poor job overseeing executive pay and that directors have weak incentives to pursue shareholder interests in executive pay.
“Say on Pay voting is sensitive to differences in pay for performance, but so forgiving that extraordinary pay premiums are required to elicit a majority ‘no’ vote.”
The common corporate practice of providing competitive target compensation regardless of past performance leads to low alignment of pay and performance. Unfortunately, directors have little incentive to protect shareholder interests “because they are paid labor providers, just like management, not stewards of substantial personal capital.”
Authored by Stephen O’Byrne, Shareholder Value Advisors
Financial Flexibility and Opportunity Capture: Bridging the Gap Between Finance and Strategy
In our third article of the Winter 30.1 issue we look at whether logically, the practice of corporate finance and corporate strategy should be closely coordinated, but in reality there remains a massive gap between the two. This can lead strategically oriented firms to de-emphasize or even discard NPV. Neither financial theory nor competitive strategy has been very open to the economic value of investment opportunity capture. Strategy must recognize that financial flexibility provides powerful advantages and financial theory must evaluate entire strategic programs rather than discrete, stand-alone projects.
Necessarily, the financial discussion of cost of capital and capital structure has to change. The authors offer two specific concepts to bridge the Gap between Finance and Strategy:
1) Reserve Financial Capacity is the annual sum of Free Cash Flow, Financing Flexibility and Cash Reserves over the period envisioned for strategy execution. Individual projects must belong to strategic programs in the sense that they either: 1) keep the base business running; 2) preserve an existing competitive position; or 3) form part of a program to enhance advantage or fashion a strategic breakout.
2) Strategically Sustainable Cost of Capital is the true, blended cost of capital required to complete an entire capital program.
These concepts provide financial rigor to firms with well-defined strategies and allow managements to wield Financial Flexibility as a strategic weapon, creating options on unique buying opportunities, such as at the bottom of industry cycles. The paper includes flowcharts illustrating how the standards of judicial review apply to various categories of business decisions that directors may have to make. It concludes with practical suggestions for directors and General Counsels to establish business judgment rule protection for board decisions or, where applicable, withstand more stringent standards of review.
Authored by Stephen V. Arbogast, Kenan-Flagler Business School, University of North Carolina at Chapel Hill and Dr. Praveen Kumar, C.T. Bauer College of Business, University of Houston.
The second article of our Winter 30.1 issue of the Journal of Applied Finance deals with whether directors may wonder if their fiduciary duties have changed. The authors synthesize the latest decisions of the Delaware courts on the standards of conduct for directors and the standards by which their conduct is reviewed. While directors should expect uncertainty in corporate life, neither the fiduciary duties of directors nor the protections afforded them have changed. Disinterested and independent directors, acting in good faith to make decisions they deem in the best interests of the corporation, continue to have broad protections under the business judgment rule. This legal framework enables and encourages active directors to make hard choices when they need to do so.
The paper includes flowcharts illustrating how the standards of judicial review apply to various categories of business decisions that directors may have to make. It concludes with practical suggestions for directors and General Counsels to establish business judgment rule protection for board decisions or, where applicable, withstand more stringent standards of review.
Written by Ira M. Millstein, Ellen J. Odoner, and Aabha Sharma, of Weil, Gotshal & Manges.
See Wiley’s online library to access the full text of this article.
Eclipse of the Public Corporation or Eclipse of the Public Markets?
In our Winter 30.1 issue of the Journal of Applied Finance our first article looks back at Michael Jensen’s 1989 article “The Eclipse of the Public Corporation.” The authors find some of his predictions have been borne out but other important ones, not. Jensen concluded that the publicly held corporation was in decline and had outlived its usefulness in many sectors. He argued that agency costs made public corporations an inefficient form of organization and that new private organizational forms promoted by private equity firms would likely replace the public firm.
The number of public firms in the U.S. has declined significantly but there are still many hugely profitable and successful public companies. U.S. public markets are still well-suited for firms with mostly tangible assets. So, what we are really witnessing is an eclipse not of public corporations, but of the public markets as the place where young firms with mostly intangible capital seek their funding.
This is especially true when the usefulness of the intangible assets has yet to be proven. Sometimes the market is extremely optimistic about some intangible assets, but otherwise firms with unproven intangible assets may be better off funding themselves privately. This evolution has a downside: investors limited to public markets are cut off from investing in high intangible-asset firms. Additionally, as fewer firms remain publicly listed, fewer firms will be transparent to society.
By authors Craig Doidge, University of Toronto, Kathleen M. Kahle, University of Arizona, G. Andrew Karolyi, Cornell University, and René M. Stulz of Ohio State University.
See Wiley’s Online Library to access the full text of this article.
The Trendsetter: Where a California Pension Plan Sees Opportunity Now
Chris Ailman was a SASB panelist in our Spring 2017 issue of The Journal of Applied Corporate Finance. He gives his investment outlook and elaborates on what ESG means to him in an article in Barron’s entitled The Trendsetter: Christopher Ailman of CalSTRS.
See Wiley’s Online Library to access the full text of our SASB roundtable.
Sustainability and Shareholder Value
The JACF, with the support of the High Meadows Foundation, has just published the fourth (read the complete issue here) in what has become an annual series of issues devoted to the corporate “sustainability” question: how can companies address environmental and social problems while still earning high enough rates of return to attract the capital necessary to sustain themselves?
Our first sustainability issue featured corporate initiatives and investments designed to protect the environment while preserving—or, in some cases, even increasing—value for shareholders. The main focus of the second in our series was large influential investors and the growing role of “ESG” (environmental, social, and governance) criteria in their decision-making. That issue emphasized that public companies could find long-term “partners” among a small but distinguished group of “value-based” investors who have made ESG analysis a critical part of their stock valuation process.
Our third sustainability issue explained how companies could find such investors and persuade them to buy their shares. Most of the suggestions involved “integrated reporting,” a relatively new form of investor communication but one recently adopted by as widely admired a company as GE. Integrated reporting differs from the “sustainability reports” that provide exhaustive accounts of all corporate environmental and social activities. Integrated reporting instead aims to provide, within and as part of a company’s traditional financial statements, detailed accounts of only their “material” environmental and social risks—the ones that are capable of having significant effects on profitability and value.
And that brings us to the focus of this, our fourth, sustainability issue: the critical importance of identifying material corporate ESG exposures and of communicating to the capital markets both the plans to manage such exposures and their expected effects on corporate strategy and value. In our lead article, Harvard Business School’s George Serafeim and Chris Pinney, President of the High Meadows Institute, dispel a number of “myths” about ESG investing. The most prevalent, and misleading, of these myths is that ESG investors must settle for below-market returns. In reality, investors who have incorporated “material” ESG risks and opportunities into their decision-making have earned returns that are if anything higher than those earned by conventional portfolios, while exhibiting lower risk. Also in this issue, Jean Rogers, CEO of the Sustainability Accounting Standards Board, (SASB) and co-author (and former FASB head) Bob Herz discuss the practical import of SASB’s success in identifying and providing standards for corporate reporting on material ESG exposures in 79 different industries. But that success does not keep Bob Eccles and Tim Youmans of Harvard Business School from arguing that determinations of materiality are important “exercises of judgment” that should not be left to the SASB or to corporate managements. They should instead be viewed as the responsibility of corporate boards, which are urged to issue a one-page Statement of Significant Audiences and Materiality each year that explains their determinations of which exposures are material, and what the companies plan to do about them.
When we come to do our fifth sustainability issue a year from now, it will be interesting to see how many corporate boards have chosen to take this step. But even if the answer is none, the corporate share of mind for the concept of “materiality” should have increased significantly.
– Don Chew
Tactics of Activist Investors
This morning’s Wall Street Journal features an article (“Don’t Make Me Do This: Rise of the Reluctant Activist”, February 19, 2016) on how many investors are adopting, even if reluctantly, the tactic of activist investors. Referring to a technology-oriented hedge fund manager:
Investor Jeffrey Osher sat on his holdings in prepaid-debit-card issuer Green Dot Corp. for three years before he lost his patience.
In December, after a string of disappointing earnings reports that left the company’s shares down sharply, the hedge-fund manager met with the board and asked directors to fire founder and Chief Executive Steven Streit, according to people familiar with the meeting. When the board refused, Mr. Osher’s Harvest Capital Strategies LLC did something it had never done before: It publicly threatened to run a campaign to oust the company’s directors.
Those moves put Mr. Osher into a newly emerging class of shareholders: Typically passive investors who are adopting, sometimes reluctantly, the tactics of activists (emphasis added).
This phenomenon was discussed at length in the Roundtable on Activist Investing published in the JACF’s Summer 2015 issue. Participants including professors from Harvard Law and Business Schools, senior decision-makers from leading hedge funds, and corporate managers with experience dealing with activist investors.
To read more and to download the issue Click here.
Hindsight is 20/20
Institutional hedging programs seem to be discussed more intensely and at higher levels of negatively affected organizations only after some major price change has taken place.
Paradoxically, price levels that seem very rewarding in hindsight rarely seemed worth protecting before the adverse price move.
For example, a January 22 article in the Financial Times “Russia considers hedging part of oil its revenues” reports that
Russia is looking at hedging a portion of its oil revenues in the future, highlighting how the collapse in prices has upended Moscow’s economic plans.
The Russian finance ministry will this year prepare the technical infrastructure necessary to implement an oil hedging programme like that of Mexico, Maxim Oreshkin, deputy finance minister, said on Friday.
The Russians are now reacting to a sharp drop in the price of its major export, crude oil. The benchmark Brent crude oil fell from over $110/barrel in mid-2014 to less than $30 recently.
As the FT story indicates, some other producers such as Mexico have long established hedging programs involving put options.
Russia has limited choices
The University of Houston’s Craig Pirrong (a regular contributor to the JACF) comments on the FT story at his blog and outlines the limited choices available to the Russians at this very late date. Craig thinks that put options, rather than swaps, are the way for Russia to go but, even this choice is complicated by the cash Russia would need now to have to pay for the puts.
Read the whole thing.
In the Fall 2015 issue of the JACF we published a revised version of an article by Craig Pirrong called “Bund for Glory, or It’s a Long Way to Tip a Market.”
The technical details not included in this version of his article, can be found in his previous version, via the attached pdf, pages 10-28.
Bund for Glory, or It’s a Long Way to Tip a Market
To see an index of articles from the past 5 years, click here for a complete pdf.
The JACF is published by Wiley.
The U.S. Listing Gap
The number of public companies in the US has declined significantly since the late 1990s. This is the subject of a working paper, The US Listing Gap by Craig Doidge (Toronto), George Karolyi (Cornell) and René Stulz (Ohio State). While recognizing that Sarbanes-Oxley has increased the costs of being a public company in the US, they still find the extent of the decline in the US numbers to be “puzzling.”
Marc Hodak, a reader and contributor to the JACF, agrees that the numbers of public companies have declined sharply but thinks the cause is fairly evident. On his blog, he says,
Well, it’s not puzzling if you use a more realistic model of what would be driving those results. The model I have used for over a decade is quite simple:
A company will choose to be public when the benefits of being a public company exceed its costs, otherwise it will not join, or will exit, the public sphere.
The way it exits is of secondary importance.
His entire post is worth reading.
Marc addressed some of the costs of being a public company on the US in The Growing Executive Compensation Advantage Of Private Versus Public Companies in the Winter 2014 issue of the JACF, (Volume 26 Number 1).