Nasdaq has made a rule filing with the SEC seeking to temporarily suspend the exchange’s bid price and market value of publicly held securities continued listing requirements until January 16, 2009, given the current state of the market. The last time the Nasdaq imposed an across-the-board, three-month moratorium on the application of its minimum bid and public float requirements for continued listing was during the market turmoil following September 11, 2001.
In its filing, Nasdaq notes that, as of September 30, 2007, there were only 64 securities trading below $1 on Nasdaq, while by September 30, 2008 that number had jumped to 227, and by last Thursday, the number of securities trading below a $1 was 344. Nasdaq further notes that “during this time there was no fundamental change in the underlying business model or prospects for many of these companies, but the decline in general investor confidence has resulted in depressed pricing for companies that otherwise remain suitable for continued listing. These same conditions make it difficult for companies to successfully implement a plan to regain compliance with the price or market value of publicly held shares tests.”
Nasdaq is requesting that the SEC waive the 30-day operative delay period so that the rule change can be put in place immediately.
I think that this is a very positive step to help both issuers and investors at a time when neither can afford to experience unnecessary delistings.
Time to Choose Prime over LIBOR?
Earlier this year, I blogged about the troubles with LIBOR, that ubiquitous short-term rate used in so many lending arrangements. Now, with the extraordinary conditions in the credit markets (including a near collapse of inter-bank lending – yikes!), LIBOR has shot up, hitting new highs in recent weeks.
In an alert issued earlier this week, Foley Hoag LLP discussed the impact of the inversion of LIBOR relative to the US Prime Rate and the potential impact on credit agreements:
“U.S. Companies that borrow under bank credit facilities that provide for the borrower to elect payment of interest at either a LIBOR-based rate (sometimes called a “Eurodollar” loan) or a Prime Rate-based rate (sometimes called a “Base Rate” loan) need to be aware of a significant development resulting from the recent turmoil in the world’s credit markets.
Under normal market conditions, the Prime Rate generally exceeds LIBOR rates. Given this, borrowers generally elect to pay interest at a LIBOR-based rate on loans that will be outstanding for more than a short time.
However, in recent days, certain LIBOR rates have at times exceeded the Prime Rate quoted by most major U.S. banks. Because of this, chief financial officers and treasurers need to carefully monitor their LIBOR/Eurodollar interest periods and consider whether to elect the Prime Rate/Base Rate when those interest periods next roll over. Furthermore, borrowers may wish to consider whether to “break funding” on some or all of their existing LIBOR/Eurodollar contracts and convert their outstanding loans to Prime Rate/Base Rate loans – depending on how LIBOR rates have moved since the beginning of the current interest period for an outstanding LIBOR/Eurodollar loan, borrowers may have to pay minimal or no “breakage costs” for doing so. The ability to “break funds” on an outstanding LIBOR/Eurodollar loan and convert it to a Prime Rate-based loan will depend on, among other factors, the language of the relevant loan agreement and whether the relevant loan is a revolver loan or a term loan, and borrowers should discuss this option with their lender before doing so.
It’s impossible to predict how long this anomalous situation will last, but the savings to alert companies could be substantial. When and if this rate inversion is reversed and more normal conditions prevail, borrowers under typical loan agreements should again be able to elect LIBOR on short notice and resume their normal interest rate strategies.”
Walk-in Registration for New Orleans
For our big executive compensation conferences next week, online registration for New Orleans attendance closed last night. However, you can walk-in and register in New Orleans with a check or credit card. In light of current economic conditions, we are waiving the standard walk-in fee this year.
Note that you will still be able to register for the video webconference at any time as this deadline doesn’t apply to that method of attendance.
I look forward to seeing you either in New Orleans or on the web!
This week, the Treasury Department and the IRS rushed out guidance and rulemaking on the executive compensation provisions included in the Emergency Economic Stabilization Act. The guidance comes out as Treasury seeks to implement the $250 billion Capital Purchase Program (CPP), as well as other programs under the Troubled Asset Relief Program (TARP). The new rules and guidance are included in:
These provisions are only applicable to a relatively narrow group of financial institutions. While this NY Times article notes some doubt about the real impact of the provisions on executive pay at financial institutions – much less on other companies – I think that it is starting to feel like we are at a broader tipping point with the recognition of some pay excesses in this federal legislation. Now it is up to all boards to take the public and shareholder anger to heart when making compensation decisions. This will certainly be a topic that we will discuss in more detail at next week’s “3rd Annual Proxy Disclosure Conference” & “5th Annual Executive Compensation Conference.” Don’t miss them!
Accounting Guidance: It Keeps on Flowing
The accounting guidance for fair value and other financial meltdown issues continues to flow at a rapid pace:
1. Last Friday, the FASB issued FASB Staff Position No. 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active. This FSP amends FAS 157 by incorporating “an example to illustrate key considerations in determining the fair value of a financial asset” in an inactive market. FSP No. 157-3 is effective upon issuance, and should be applied to prior periods for which financial statements have not been issued – including in upcoming third quarter 10-Qs. The FSP notes that the guidance included in the Statement is consistent with the guidance provided by the SEC’s Office of Chief Accountant and the FASB Staff in last month’s press release. The FSP’s example illustrates how a company can determine the fair value of an investment in a collateralized debt obligation security that is no longer quoted in an active market, emphasizing that approaches other than the market value may be appropriate for determining fair value.
2. On Tuesday, under intense political pressure, the IASB amended IAS 39, Financial Instruments: Recognition and Measurement. The amendment, which is effective immediately and to be applied retrospectively to July 1, 2008, will permit financial instruments that had been measured at fair value through profit or loss to be reclassified to a different accounting basis (to, i.e., held-to-maturity). The restrictions on reclassification had been in place to stop companies from gaming the system by, e.g., marking to market in the good times and then ceasing to mark to market in the bad times. The IASB shift may tilt the playing field in favor of international standards, because, under US GAAP, reclassifications among trading, available for sale and held-to-maturity are only permitted (under FAS 115) in rare circumstances. So much for “convergence” when the going gets tough.
3. Also on Tuesday, SEC Chief Accountant Conrad Hewitt sent a letter to FASB Chairman Robert Herz on interpretive issues arising in how to assess declines in fair value for perpetual preferred securities under the existing other-than-temporary impairment model in FAS No. 115, Accounting for Certain Investments in Debt and Equity Securities. In the letter, Hewitt states that for perpetual preferred securities, which are treated like equity securities under FAS 115, the Staff (in consultation with the FASB Staff), “would not object to an issuer, for impairment tests in filings subsequent to the date of this letter, applying an impairment model (including an anticipated recovery period) similar to a debt security. OCA would not object to this treatment provided there has been no evidence of a deterioration in credit of the issuer (for example, a decline in the cash flows from holding the investment or a downgrade of the rating of the security below investment grade) until this matter can be addressed further by the FASB.” The Staff expects sufficient disclosure about the impairment analysis, so that investors can understand all of the information considered in determining that the impairment is other than temporary and what was considered in determining that there was no evidence of credit deterioration in the perpetual preferred securities.
Short Sale Disclosure (Only to the SEC) Now In Place
Yesterday the SEC adopted an interim final temporary rule requiring specified institutional investment managers to file information on Form SH concerning their short sales and positions of Section 13(f) securities, other than options. The rule is effective on October 18 and will continue in place until August 1, 2009.
The disclosures about short positions will not be available to the public, only to the SEC. The SEC stated that Form SH “will provide useful information to the staff to analyze the effects of our rulemakings relating to short sales and in evaluating whether our current rules are working as intended, particularly in times of financial stress in our markets. The reports will supply the Commission with important information about the size and changes in short sales of particular issuers by particular investors. That information will be available to the Commission to consider when questions about the propriety of certain short selling occur.”
Note that you will need your Conference ID and password to access the course materials (if you’ll be in New Orleans, a set will be handed out to you). It’s not too late to register!
Instructions for Those Watching Online Next Week: Come to the home page on the day of the Conference and click the prominent link that will be posted that day. Watch the Conference live by clicking a video link that will be on the Conference page that matches the type of player installed on your computer (ie. Windows Media Player or Flash) and the speed of the connection that you have. Panels will be archived a day after they are shown live.
Short Sale Tuesday
Yesterday, the SEC issued three separate releases taking action on short sale rules. All of these rule changes are effective this Friday, October 17. The changes include:
1. In Release 34-58773, the SEC adopted Rule 204T of Regulation SHO as an “interim final temporary rule” (I think that is a whole new flavor of rule). Rule 204T was first adopted in a September 17 Emergency Order and was set to expire on Friday, October 17. Now, a revised version Rule 204T will be effective until July 31, 2009, and the SEC will consider comments on the rule and respond to those comments “in a subsequent release.” The new version of Rule 204T includes some tweaks from the version adopted in the September 17 Emergency Order to address operational and technical concerns. The rule generally requires that securities be purchased or borrowed to close out any fail to deliver position in an equity security by no later than the beginning of regular trading hours on the settlement day following the date on which the fail to deliver position occurred, as a means for discouraging potentially abusive “naked” short selling.
2. In Release 34-58774, the SEC adopted Exchange Act Rule 10b-21, the naked short selling antifraud rule. This rule is actually being adopted in the “normal” way – it was proposed back in March and comment was solicited on the rule. In the September 17 Emergency Order, the SEC had adopted Rule 10b-21, but only through this Friday. New Rule 10b-21 is aimed specifically at short sellers (including broker-dealers acting for their own accounts) “who deceive specified persons, such as a broker or dealer, about their intention or ability to deliver securities in time for settlement and that fail to deliver securities by settlement date.” Such deception could include lying to a broker about the source of the borrowable securities under the locate requirement of Regulation SHO, or lying about whether the short seller owns the securities to be sold short.
3. In Release 34-58775, the SEC adopted previously proposed changes that eliminate the options market maker exception to the close-out requirement of Regulation SHO. With these amendments, fails to deliver in threshold securities resulting from hedging activities by options market makers will no longer be excepted from Regulation SHO’s close-out requirement. In the September 17 Emergency Order, the SEC had adopted and made immediately effective the elimination of the options market maker exception to Regulation SHO’s close-out requirement, which was also set to expire this Friday. The Release also provides some interpretive guidance on activities that constitute bona fide market making activities.
These rule changes are by and large targeted at naked short selling, and may finally go a long way toward stamping out the shady side of the short sale business. However, these changes may not be the last word on short selling regulation – calls for reviving the uptick rule will continue, as will perhaps the overall mistrust of short selling that the SEC has contributed to with its emergency short sale ban. Also, the SEC should be publishing interim final rules in the next day or so to implement the new Form SH filing requirement (for the SEC’s eyes only) on a permanent basis.
What’s Next for the SEC’s Emergency Actions?
With the markets’ big comeback on Monday and the rally cries of “capitulation” emerging, is the SEC going to ban long purchases next? I think not, but that would make about as much sense as banning short sales, in my opinion. What the SEC could do now is adopt some interim final temporary rule changes to continue the relaxation of the Rule 10b-18 volume and timing conditions to facilitate long purchasers by issuers. The timing of the SEC’s Emergency Order relaxing the 10b-18 requirements was not particularly good, since many issuers were in possession of material nonpublic information as a result of being so close to the end of the quarter, and thus had concerns about implementing any new repurchase plans or doing any sort of one-off repurchases. The potential benefits of encouraging issuers into the market to support their shares could actually be realized soon, as earnings get announced and issuers get back into windows where they could be in a position to repurchase their own securities.
The recent market crash has knocked quite a few companies out of WKSI status and some might not recognize the implications. In this podcast, Stephen Quinlivan of Leonard, Street and Deinard discusses the impact of the market drop on WKSI issuers, including:
– How has the recent market drop impacted some WKSI issuers?
– What are the implications of no longer being classified as a WKSI?
– Is there anything an issuer can do about it?
– What is the effect on registration statements of other issuers?
– Any other effects of the market drop?
CII’s New Policies: Gross-Ups, Severance Pay and More
– Gross-ups: “Senior executives should not receive gross-ups beyond those provided to all the company’s employees.”
– Severance Pay: “Executives should not be entitled to severance payments in the event of termination for poor performance, resignation under pressure, or failure to renew an employment contract. Company payments awarded upon death or disability should be limited to compensation already earned or vested.”
– Proxy Solicitation: “Advance notice bylaws, holding requirements, disclosure rules, and any other company imposed regulations on the ability of shareowners to solicit proxies beyond those required by law should not be so onerous as to deny sufficient time or otherwise make it impractical for shareowners to submit nominations or proposals and distribute supporting proxy materials.”
– Executive Stock Sales: “Executive should be required to sell stock through pre-announced 10b5-1 program sales or by providing a minimum 30-da7 advance notice of any stock sales. 10b5-1 program adoptions, amendments, terminations and transactions should be disclosed immediately, and boards of companies using 10b5-1 plans should: (1) adopt policies covering plan practices; (2) periodically monitor plan transactions; and (3) ensure that company policies discuss plan use in the context of guidelines or requirements on equity hedging, holding and ownership.”
The other three polices relate to timely disclosure of voting results, shareholder rights to call special meetings and independence of accounting/auditing standard setters.
Delaware Court of Chancery Directs Hexion/Huntsman Merger To Go Forward
From Travis Laster, as posted on the DealLawyers.com Blog recently (here are the firm memos on the opinion): A few weeks ago, Delaware Vice Chancellor Lamb issued his much anticipated post-trial decision on the Hexion/Huntsman deal. In the opinion and implementing order, Vice Chancellor Lamb holds that (i) Huntsman had not suffered an MAE, (ii) Hexion “knowingly and intentionally” breached its obligations under the merger agreement such that potential damages are not limited to the $325 million termination fee, (iii) whether or not the combined entity would be insolvent is an issue that is not yet ripe, and (iv) Hexion must specifically perform its obligations under the merger agreement (which does not include an obligation to close). This decision is a blockbuster that will occupy center stage for a while. Here are some highlights from this major ruling.
Practitioners should start with the implementing order. It is a partial final order that Vice Chancellor Lamb certified as final pursuant to Court of Chancery Rule 54(b), thereby setting up an appeal as of right for Hexion.
Several paragraphs leap out of the order. In paragraphs 3-7, Vice Chancellor Lamb orders Hexion to move forward with the actions necessary to complete the merger. This is the type of open-ended, affirmative relief that Delaware courts often resist giving. Even more strikingly, in paragraph 8, Vice Chancellor Lamb prohibits Hexion from terminating the merger, and in paragraph 11, Vice Chancellor Lamb orders that “If the Closing has not occurred by October 1, 2008, the Termination Date under the Merger shall be and is hereby extended until five (5) business days following such date that this Court determines that Hexion has fully complied with the terms of this Order.” This language would appear to eliminate the drop dead date and make the Merger Agreement effectively open-ended, requiring Huntsman consent or court approval to terminate the deal. To my knowledge, this is unprecedented relief.
Turning to the opinion, VC Lamb first holds that there was no MAE. This is largely a fact-driven application of IBP and Frontier Oil; however, three points are particularly noteworthy. First, the Huntsman MAE contained a carveout for industry-wide effects, with an exception for effects with a disproportionate effect on HUN. Hexion argued that this required comparing Huntsman’s performance against the chemical industry’s performance to determine whether an MAE had occurred. VC Lamb rejects this reading and holds squarely that the initial inquiry is whether the target suffered an MAE at all. “If a catastrophe were to befall the chemical industry and cause a material adverse effect in Huntsman’s business, the carve-outs would prevent this from qualifying as an MAE under the Agreement. But the converse is not true–Huntsman’s performance being disproportionately worse than the chemical industry in general does not, in itself, constitute an MAE.” (37-38). This interpretive approach should apply to MAE carveouts generally and will affect how they are read and the leverage respective parties have.
Second, addressing the expected future performance of Huntsman, VC Lamb holds that whether Huntsman suffered an MAE is NOT measured by how it performed versus its projections. This is principally because in the merger agreement, Hexion disclaimed reliance on any Huntsman projections. “Hexion agreed that the contract contained no representation or warranty with respect to Huntsman’s forecasts. To now allow the MAE analysis to hinge on Huntsman’s failure to hit its forecast targets during the period leading up to closing would eviscerate, if not render altogether void, the meaning of [that section].” (46).
Third, in assessing the past performance aspect of the claimed MAE, VC Lamb concurred with Huntsman’s expert that the terms “‘financial condition, business or results of operations’ are terms of art, to be understood within reference to their meaning in Reg S-X and Item 7, the ‘Management’s Discussion and Analysis of Financial Conditions and Results of Operation’ section” of SEC filings. That section requires companies to disclose their results for the reporting period as well as their results for the same time period in each of the previous two years. Therefore, VC Lamb, holds that the proper benchmark for assessing whether changes in a company’s performance amount to an MAE is an examination of “each year and quarter and compare it to the prior year’s equivalent period.” (47-48) Though it addresses only one aspect of the MAE analysis-i.e. past performance not expected future performance-this is the clearest guidance the Court of Chancery has yet provided on the appropriate metrics for evaluating an MAE.
As in IBP and Frontier, burden of proof appears to have played a significant role in the ruling, and VC Lamb suggests in a footnote that parties to a merger agreement contractually allocate the burden of proof for establishing an MAE. (41 n.60).
In the next major ruling in the opinion, VC Lamb holds that Hexion committed a “knowing and intentional breach” of its obligations under the merger agreement. Hexion argued that the phrase “knowing and intentional” requires that a party (i) know of its actions, (ii) know that they breached the contract, and (iii) intend for them to breach of contract. (57). VC Lamb rejects this view as “simply wrong.” (57). He rather holds that a “knowing and intentional” breach is “a deliberate one — a breach that is a direct consequence of a deliberate act undertaken by the breaching party, rather than one which results indirectly, or as a result of the breaching party’s negligence or unforeseeable misadventure.” (59). It thus simply requires “a deliberate act, which act constitutes in and of itself a breach of the merger agreement, even if breaching was not the conscious object of the act.” (60).
Having interpreted “knowing and intentional breach” in this fashion, VC Lamb turns to Hexion’s actions over the past few months, during which Hexion identified a concern about the combined entity’s solvency, retained Duff & Phelps to analyze the issue, obtained an “insolvency” opinion, and then went public with its insolvency contentions and filed a lawsuit in Delaware. VC Lamb holds that this course of conduct breached (i) Hexion’s covenant to use its reasonable best efforts to consummate the financing and (ii) Hexion’s obligation to keep Huntsman informed about the status of the financing and to notify Huntsman if Hexion believed the financing was no longer available.
VC Lamb notes that “[s]ometime in May, Hexion apparently became concerned that the combined entity … would be insolvent.” (62). He remarks that a “reasonable response” at that time would have been to contact Huntsman and discuss the issue. But rather than doing that, Hexion hired counsel and began analyzing alternatives. At this stage, however, he observes that was not Hexion “definitively” in breach of its obligations. (63). But Hexion and its counsel then hired Duff & Phelps, which developed an insolvency analysis. At that point, “Hexion was … clearly obligated to approach Huntsman management to discuss the appropriate course to take to mitigate these concerns.” (63). Hexion’s failure to do so “alone would be sufficient to find that Hexion had knowingly and intentionally breached.” (64). Rather than doing so, Hexion obtained an insolvency opinion from Duff & Phelps and delivered it to the banks, which VC Lamb regarded as a clear, knowing and intentional breach. (67-68).
Vice Chancellor Lamb then wraps up by writing that “In the face of this overwhelming evidence, it is the court’s firm conclusion that by June 19, 2008 Hexion had knowingly and intentionally breached its covenants and obligations under the merger agreement.” (77). He holds that if it is later necessary to determine damages, “any damages which were proximately caused by that knowing and intentional breach will be uncapped and determined on the basis of standard contract damages or any special provision in the merger agreement.” (77). The merger agreement in fact contains a provision contemplating damages based on the lost value of the merger for stockholders. VC Lamb also rules that Hexion will have the burden to prove that any damages were not caused by its knowing and intentional breach.
After addressing two major issues, VC Lamb declines to make any ruling on the solvency of the combined entity, which was the issue that consumed the bulk of the parties’ litigation efforts at trial. VC Lamb holds that the question of the solvency of the combined company is not ripe “because that issue will not arise unless and until a solvency opinion is delivered to the lending banks and those banks either fund or refuse to fund the transaction.” (78). He notes that solvency of the combined entity “is not a condition precedent to Hexion’s obligations under the merger agreement,” and the lack of a solvency opinion “does not negate [Hexion’s] obligation to close.” (79). The issue is only relevant to the obligation of the lending banks. (79). He therefore leaves it for another day.
Finally, VC Lamb holds that Hexion must specifically perform its obligations under the merger agreement, while noting that the merger agreement specifically exempts Hexion from having the obligated to close. He finds the specific performance provision of the merger agreement to be “virtually impenetrable” and ambiguous, and he therefore resorts to extrinsic evidence, including the testimony of Hexion’s counsel, to interpret its meaning. He concludes that the Court can require Hexion to comply with all of its obligations short of consummation, but cannot order Hexion to consummate. “[I]f all other conditions precedent to closing are met, Hexion will remain free to choose to refuse to close. Of course, if Hexion’s refusal to close results in a breach of contract, it will remain liable to Huntsman in damages.” (87).
The Hexion decision joins IBP and Frontier as the major guideposts for MAE analysis. Hexion applies and elaborates on IBP and Frontier; it does not appear to open up any inconsistencies in Delaware’s approach. The opinion rather tends towards greater clarity in MAE application by establishing a rubric for interpreting carveouts, putting projections off limits when reliance on them has been disclaimed, and establishing a securities law-based standard for evaluating past performance. It is not readily apparent to me what the long-term impact of this greater clarity will be. Some MAE threats will likely not be made and others may be more readily rejected. But since part of the leverage to recut deals and resolve MAE issues flows from uncertainty over how the MAE issues will play out, the existence of more defined judicial standards could result in parties being more aggressive in their MAE positions and less willing to compromise. This ironically could lead to more MAE litigation.
The Hexion opinion is also a reminder of the importance Delaware places on contracts and contractual obligations. Both the URI decision from December 2007 and the Hexion ruling provide examples of Delaware courts enforcing bargained-for contractual provisions. In URI, those provisions favored the acquiror. In Hexion, they favored the target.
Last week, the SEC Staff posted a 129-page Enforcement Manual. I believe that this document is new and not something the Staff has been sitting on behind closed door – although I don’t think the content itself is anything new. It’s a great idea since it seems to pull together all of the key Enforcement positions and policies in one place. I’m not sure why the SEC made it public, but I’m glad they did.
Gibson Dunn has written this memo summarizing some of the key areas of the SEC’s Enforcement Manual, including waiver of privilege, document production and the process by which the Staff may contact employees of a company under investigation.
The RiskMetrics’ 2008 Postseason Report
RiskMetrics Group has released its 2008 Postseason Report (and a series of unique industry sector reports). We have posted an executive summary of the Postseason Report in our “Proxy Season” Practice Area. Some key takeaways from the report include:
-Board declassification proposals received the greatest backing this year, averaging 67% support at 76 firms, up from 64% in 2007.
-Proposals calling for an independent board chair saw average support climb by more than 5% to nearly 30% of votes cast “for” and “against.”
-While the global credit crisis resulted in fewer transactions this year, hedge funds and other activists continue to target underperforming companies, leading to another record year for U.S. proxy contests.
-While most directors were elected with broad support, investors have become increasingly willing to withhold support from board members in uncontested elections, even in the absence of a high-profile “vote no” campaign. In fact, directors at 82 S&P 500 companies received more than 10% opposition this year, up from 64 firms in 2007 and 57 in 2006.
How to Change Your Advance Notice Bylaws
We have posted the transcript from the popular webcast: “How to Change Your Advance Notice Bylaws.”
It looks like the folks at AIG have taken “tone at the top” to heart. Unfortunately, their tone isn’t of the type that is good news for taxpayers, who now own 80% of AIG. As this Washington Post article describes, two former AIG CEOs were grilled during a House Committee on Oversight and Government Reform hearing this week (one of whom received a $5 million performance bonus just before he left – in addition to a $15 million golden parachute – and another AIG executive was fired who still receives $1 million per month for consulting services). The former CEOs expressed no remorse for their actions that drove AIG into the arms of the government and didn’t acknowledge making any mistakes. Rather, they blamed the accounting. The House committee members were visibly disturbed by the sheer audacity of these so-called corporate leaders. Given the long list of troubling practices at AIG described in this front-page WSJ article, we may well see these two in pinstripes someday.
The topper is the fact that AIG is now getting an additional $37.8 billion loan from the taxpayers, which is lumped on top of the $80 billion load the government provided last month. This came a day after it was revealed that the company held a junket for sales reps at a resort, spending unbelievable amounts of the taxpayer’s money. How exactly does one spend $23,000 on spa treatments or $5,000 at the bar? The story is outrageous and listening to the radio, it’s fair to say that AIG already has become the posterchild of all that is broken in Corporate America. If this doesn’t get you mad, nothing will.
Reflecting on a True Corporate Leader
Kevin LaCroix does a masterful job reviewing the new uncensored – and authorized – biography of Warren Buffett in his “The D&O Diary Blog. In my opinion, Warren is one of the few leaders in Corporate America deserving of the title “leader.” Reading Kevin’s description, you can see that Warren values his reputation more than money. How many CEOs can you say that about?
It’s worth noting that Warren’s annual letter to shareholders is one of the only “straight talk” pieces out there when it comes to disclosure documents for shareholders. I’ve never understood why other CEOs haven’t followed his lead. Just like few have followed his lead in the face of today’s crisis to speak up, take actions to show they are accountable and try to produce calm.
So What Now? Does Board-Centric Oversight Really Work?
Given the events leading up to this crisis (and continuing today, see the AIG story above), there certainly will be a rash of regulatory reforms. It’s clear that there are numerous practices that need fixing and right now, Corporate America doesn’t seem capable of doing it on its own.
Exhibit A is excessive executive compensation. As I often state when debating defenders of today’s pay packages, would you be motivated to work to 100% of your abilities if you made $10 million per year? If the answer is “yes,” what purpose does paying you $20 million serve?
Apologists then trot out the argument that another company may pay you that $20 million – thus, your current employer should pony up. That may well be true in relatively rare circumstances – but the reality is that there are very few CEO superstars that could easily move from one company to another (just like there are few superstars in sports that could command top dollar from another team).
Boards continue the status quo of handing out oversized pay packages because it’s the easy thing to do. Having that hard negotiation with a sitting CEO is tough to do – most directors have day jobs where they face tough situations every day and I imagine that it would be rough to go to a board meeting and continue fighting the good fight. But that is their job and they need to do it – or they need to drop off the board. As I blogged recently, I hear that the few companies that really make responsible changes are the ones where the CEO speaks up and voluntarily asks for the change. Sadly, boards and compensation committees are not the ones driving responsible change.
In the wake of the ongoing crisis, there may well be a push to dramatically alter the board-centric oversight model that exists today. In his most recent column, Jim Kristie of “Directors and Boards” looks at this topic, first noting Marty Lipton’s speech defending the board-centric model from a few months ago, then pointing out that growing evidence of a lack of confidence in the board-centric model today and ending with the thought that “shareholder-centric governance may be one of the ways out of this financial crisis, widely thought to be the worst since the Great Depression.”
Powerful food for thought. Are boards listening – and acting – to stave off this possibility? Like most others, I’m cynical at this point. My guess is that most would rather blame the accounting or short sellers than take responsiblity for their own oversight failures. True leadership is a rare commodity these days.
The Bottom Line: We Need Trust
I believe the reason that the government’s daily solutions to the credit crunch are not working is because the trust within our system has evaporated. It is widely reported that banks refuse to lend to each other. The approval rating of our politicians are at historical lows.
And I wouldn’t be surprised if many of the retail investors now leaving the stock market never return, particularly the older baby boomers who don’t have the time to wait this out. And even though our markets are now dominated by institutional investors, their size often is attributable to participation by the masses. Look for their sizes to shrink as coffee cans are buried in the backyard. Without true leadership – setting the proper tone at the top and taking responsibility – I don’t think this market will turn around. To start down the path to true leadership, CEOs can start by voluntarily reining in their excessive pay packages.
With many law firms suffering from a dearth of transactional work – compounded by the biggest market crisis of our generation – the sheer number of firm memos being produced has been overwhelming lately. Here is where we have been posting the hordes of memos related to the crisis:
Work on Congressional Fair Value Study Commences: Comments Solicited
The SEC has commenced its study on “mark-to-market” accounting – and is authorized by Section 133 of the Emergency Economic Stabilization Act – and is soliciting comment. The Act requires the study to be completed by January 2nd and the SEC must consult with Treasury and the Federal Reserve. Notably, the IASB announced that it believes last week’s SEC-FASB clarification on fair value is consistent with IAS 39.
Last month, Corp Fin Director John White and Deputy Chief Accountant James Kroeker (who is heading up the SEC’s study now) gave this testimony on transparency in accounting before the Senate Banking Committee.
A few weeks ago, I blogged about the SEC’s new “21st Century Disclosure Initiative,” including a summary of a proposal from Joe Grundfest and Alan Beller – as well as my ten cents on the entire idea. Today, the SEC is holding a roundtable on the idea – and has posted these FAQs and this strategic plan.
Trotting this new initiative out now seems like a bad idea when it won’t really bear on any of the problems associated with the current credit crisis. Bizarrely, the SEC issued this press release yesterday that revised the title of this roundtable so it’s framed as if it’s dealing with transparency in the credit crisis (here is the original press release).
At least, this illustrates that the SEC understands the need to tackle the credit crisis topic – unfortunately though, this roundtable isn’t about it. During the roundtable, if one was to hold a drinking game with “credit crunch” as the trigger term, I fear there wouldn’t be much action outside of the Chairman’s opening remarks. This perceived inaction by the SEC in the face of a major crisis will continue to provide fodder for folks like those over at “The Conglomerate” blog, which recently wrote a daily list of regulatory actions to combat the crisis – with the SEC penciled in as “The SEC did nothing.” The SEC should be in crisis mode and setting aside any unrelated projects.
– Is This Project Dealing with “Form over Substance”? – When I read the SEC’s strategic plan, I was disappointed that the direction of the initiative clearly seems to be in the vein of “form over substance.” The SEC’s vision of this project seems to consist of creating a “Company File System,” where all the core information about a company would be in a centrally and logically organized interactive data file. When you read that description, a fair question might be: “Isn’t that what Edgar does today?” And a straight-faced answer would be: “For the most part, yes.”
As I mentioned in my last ten cents on this topic, I believe the SEC should be focused more on updating its substantive requirements – without that kind of meat involved in this project, I find the phrase “21st Century Disclosure Initiative” to be undeserving. This rulemaking simply doesn’t carry that kind of importance and it’s misleading.
Nothing personal about Bill Lutz (who is leading this initiative), but as his biography shows, he is an English Professor – and that’s not the best background to lead us down the path to better substantive requirements. At this point, this is Chairman Cox’s baby and I don’t feel a heavy Corp Fin presence in this project – and it’s supposed to be about disclosure.
– Why a “Hash Mark System” Might Not Work – Putting aside my reservations about the timing of this initiative, I do have some thoughts about a “Company File System.” I think it’s important for companies to be required to file their core information – whatever the format (ie. HTML, XBRL) – on a single government site that is common for all reporting companies, like EDGAR is today. It’s very efficient to be able to go directly to one site and type in the name or trading symbol of a company and go directly to a company’s filings.
One of the ideas being considered is that companies would fill out online questionnaires and then they wouldn’t file their questionnaire responses directly with the SEC – rather they would post the responses on their own websites, with a ‘hash’ that authenticates the document as well as the date and time of posting. I have three concerns regarding this idea:
1. Challenges of Maintaining Content – I think this “hash mark” idea may be challenging for companies to implement. They would be required to ensure that those links stay active. You would think that this would be easy to accomplish, but I find that companies change the URLs of their IR web pages much more frequently than you would think. (I know this because I try to maintain a list of links to the IR web pages of widely-held companies and it requires constant updating).
2. Security Considerations – Another consideration for companies is the fear that the “official” documents now required to be on their servers would get hacked.
3. Investor Trust – Finally, and most importantly, investor studies show that investors trust documents filed – and found – on a government website more than documents found on a company’s site. Rightfully so, investors tend to view documents posted on corporate websites as marketing material.
The SEC: Under Fire
Even before Senator McCain was calling for SEC Chairman Cox to be fired, the SEC has been under attack. The latest is a claim that the SEC censored a report to hide its role in the Bear Stearns implosion. According to this Bloomberg article, the SEC’s Inspector General released a report a few weeks ago that “deleted 136 references, many detailing SEC memos, meetings or comments, at the request of the agency’s Division of Trading and Markets that oversees investment banks” (the SEC’s IG also released this companion report regarding the SEC’s broker-dealer risk assessment program). An unedited version of this report is posted on Senator Grassley’s website.
The SEC’s Inspector General has issued another report – also requested by Senator Grassley (see his letter from yesterday) – regarding the 2005 firing of Gary Aguirre, an SEC lawyer who claimed superiors impeded his inquiry into insider trading at hedge fund Pequot Capital Management. This report was released by the Senate Finance Committee yesterday, but is not yet posted on the SEC’s website – the articles states that the report “said the agency should consider punishing the director of enforcement and two supervisors over the firing.”
Perhaps in response to the pressure, Chairman Cox hired a former head of the Congressional Budget Office as a senior adviser yesterday – and according to this article, recently hired two new public relations officers.
Treasury Department: Implementing TARP ASAP
As required by the Emergency Economic Stabilization Act, the Treasury Department is moving quickly to choose advisers, issue regulations, and hire companies to serve as asset managers for its “Troubled Asset Relief Program” (known as “TARP”).
Neel Kashkari – age 35! – has been named the interim head of the new Office of Financial Stability, which will implement the TARP (he was the Assistant Secretary for International Economics and Development and has been a key adviser to Hank Paulson). This office will hire a small staff with expertise in asset management, accounting and legal issues.
For those watching by video webcast, to ensure you don’t have any technical snafus for the conferences, please test your access today.
– How to Test: Use this link to test for access (this test is only available this week) by using your ID and password that you received for the Conferences (which may not be your normal ID/password for TheCorporateCounsel.net or CompensationStandards.com). If you are experiencing problems, follow these webcast troubleshooting tips.
– How to Earn CLE Online: Please read these FAQs about Earning CLE carefully to see if that is possible for you to earn CLE for watching online – and if so, how to accomplish that. Both Conferences will be available for CLE credit in all states except Pennsylvania (but hours for each state vary; see the list for each Conference in the FAQs).
When you test your access, you can test our CLE Tracker as well as input your bar numbers, etc. You also will be able to input your bar numbers anytime during the days of the Conferences too (remember that you will need to click on the periodic “prompts” all throughout each Conference to earn credit).
– How Directors Can Earn ISS Credit: For those directors attending by video webcast, you should sign-up for ISS director education credit using this form.
– How to Attend by Video Webcast: If you are registered to attend online, just log in to TheCorporateCounsel.net or CompensationStandards.com on the days of the Conference to watch it live or by archive (it will take about a day to post the video archives after it’s shown live). A prominent link called “Enter the Conference” on the home pages of those sites will take you directly to the Conference.
More Companies Using Internal Pay Equity as Alternative Benchmarking
During our Conferences, some of the most respected compensation consultants will describe how companies can implement internal pay equity as an alternative to peer group benchmarking (see the Conferences’ agendas). With so much attention right now on excessive executive compensation, we predict that this methodology will really take off over the next year given how existing peer group surveys are comprised of inflated data.
Some companies have already taken the leap. In its 2008 proxy statement for Cerner Corporation, the company discloses that it uses internal pay equity guidelines that provide that its “CEO’s total cash compensation shall not be more than three times that of the next highest total cash compensation (the company’s board must approve any exception to these guidelines).”
My Ten Cents: Overcoming Objections to Internal Pay Equity
To the extent there is pushback from compensation consultants about clients using internal pay equity as an alternative benchmark to peer groups, I can understand it – because internal pay likely will reduce the level of the consultant’s role in the pay-setting process. With internal pay, consultants can advise clients about how to implement internal pay equity methodologies, but they wouldn’t make money for the use of their peer group database. This is because internal pay equity is an “internal look” at the company’s own pay scale.
But for the life of me, I can’t understand why lawyers would advise their clients not to consider internal pay equity. Over the past few years, peer group benchmarking has been criticized by many quarters. It’s not that peer group analysis is not useful per se, it’s just that the current batch of CEO pay data is tainted because most boards sought to pay their CEOs in the top quartile for 15 years – thus driving CEO pay inflation through the roof.
Given that most boards rely on peer group benchmarks as the paper trail to show that they were informed when exercising their fiduciary duties – and given that peer group benchmarking is now widely discredited – shouldn’t lawyers be advising boards to find another source of documentation for their files? Or urging them to obtain at least an additional layer of protection by balancing peer group benchmarking with internal pay equity?
The old adage that “everyone else is doing it” simply doesn’t work anymore with regulators and courts. Imagine a courtroom where several experts are brought in to show how peer group data is tainted and that everyone “should have known” it. It’s easy if you try…
Want to know how your future looks in the wake of the bailout legislation? Tune in tomorrow for this webcast – “Latest Developments in Capital Market Deals” – to hear how the markets are functioning right now and what the future holds. The panel includes both an equity and a debt banker, as well as legal experts from the East Coast, West Coast and the Midwest. The panelists include:
– Edward Best, Partner, Mayer Brown
– Michael Kaplan, Partner, Davis Polk & Wardwell
– J. Maurice Lopez, Managing Director, Citigroup Global Markets
– Patrick Schultheis, Partner, Wilson Sonsini Goodrich & Rosati
– Bill Schreier, Head of Equity Capital Markets, BM Capital Markets
Coming Soon? Code of Ethics for Proxy Advisory Services
For the past few months, Meagan Thompson-Mann, a visiting fellow at Yale’s Millstein Center for Corporate Governance and Performance, has been soliciting comment regarding voting integrity in the proxy voting process in response to a draft study she drafted. Among other things, her study suggests a code of ethics for proxy advisory services and includes a proposed code. It raises the possibility of sharing information with companies, but leaves it up to the advisor (p. 21) – and it also provides that a proxy advisor should not give companies any assurances of a particular recommendation prior to its release (p. 15). Weigh in with your thoughts if you can.
RiskMetrics Begins Advising on Tender Offers
As I noted recently on the DealLawyers.com blog, RiskMetrics’ ISS Division recently broke with tradition and advised its clients not to tender Longs Drug Stores’ shares into CVS’ tender offer. Historically, RiskMetrics has only made recommendations on shareholder votes and left tender offers alone. So changing the structure of a deal from a merger to a tender offer will no longer have the incidental effect of removing RiskMetrics from the equation…