The Deal

Activist investors like Nelson Peltz who have board and operational experience are more likely to be viewed positively by influential proxy adviser Glass Lewis than hedge fund managers that have never held director positions.That’s the view of Mark Grothe, senior analyst in M&A and contested situations at Glass Lewis. Grothe, who has worked on the some of the most contentious proxy fights in recent years, spoke to The Deal’s Activist Investing Today podcast and offered his thoughts on whether the Glass Lewis is more or less likely to recommend that investors support an activist-backed industry expert or one of their hedge fund analyst candidates for a directorship. Grothe also offered his thoughts on change-of-control slates, and why he thinks it is very important for both companies and activists to make director candidates available for conversations.“If you think of someone like Nelson Peltz at Trian, he has a lot of board experience with consumer product goods companies. He has a certain reputation, and calls himself a ‘constructivist,’” Grothe said. “That’s not to say that if Nelson Peltz nominates himself in a board fight he is guaranteed to get a seat but at least you have some board experience. You really want to see industry experience as well.”

The Activist Investing Today Podcast spoke with The Deal’s intrepid Delaware expert, David Marcus, about what to expect in Delaware Chancery Court later this month when rent-to-own retailer Rent-a-Center faces off against its would-be buyer, Vintage Capital. In December, Glenn Welling-targeted Rent-A-Center surprised the markets by saying it was terminating its $1.37 billion deal to be acquired by Vintage Capital after it "did not receive" an extension notice from the buyer. Vintage said RCII’s move was invalid. Now the two companies are in the midst of a Delaware battle over the deal and a whopping (at least for Vintage) $126.5 million termination fee that hasn’t been paid yet. It’s a story with everything: Activism, private equity, M&A, intrigue and now, litigation. Will more lawsuits follow this one?

Chief executives who also serve as board chairs are leaving CEO roles but maintaining chairman positions at a large number of U.S. corporations, a situation that is jeopardizing boards’ independence and effectiveness.That’s the view of Yaron Nili, assistant professor of Law at the University of Wisconsin-Madison, an expert in governance, hedge funds, private equity and activist investors. Nili spoke to The Deal's Activist Investing Today podcast about a new study he just issued that identifies many cases where the company installs a CEO who the former chief executive has been cultivating for the role and whom he will continue to oversee as chairman. “If you have the CEO and ex-CEO both serving, and working in cahoots, so to speak, the power structure is a problem and whether the rest of the directors can resist the chairman and CEO, who are on the same wave length, is a question,” Nili said. According to Nili, there were 217 companies in the S&P 1500 in 2016 that had “successor” CEOs, where the chief executive has stepped down from their executive role but maintained the chairman role.

Individuals who sit on five or more corporate boards - particularly at the largest U.S. corporations -- may not have the bandwidth to focus enough energy and time on each company's strategic and operational issues. At least that's the view of Kurt Schulzke, associate professor of Accounting & Law at the University of North Georgia and director of Kennesaw State University's Corporate Governance Center. Schultzke spoke with The Deal's Activist Investing Today podcast about overboarded directors, and his finding that some of the best-performing companies in the U.S., such as Starbucks Corp. (SBUX), Apple Inc. (AAPL) and Johnson & Johnson (JNJ), have directors who don't serve on many other boards.

A recent proxy season found that the median market capitalization of companies targeted by activist investors was well below $300 million. That’s according to Duncan Herrington, a veteran adviser in the activist investor world, who talked to The Deal’s Activist Investing Today podcast about a shareholder activist advisory practice he recently launched at middle market investment bank Raymond James. Herrington argues that bigger bulge bracket banks issue marketing materials on trends with campaign data that only includes companies with a $100 million-plus or $1 billion-plus market capitalization. “They are indicating what is most relevant for their clients,” Herrington said. “That leaves a large chunk of the [smaller] market out.” Herrington said. Herrington offered his thoughts on what kinds of companies are most susceptible to an activist threat as well as the latest trends in banking and cross-border activist campaigns.

Lead independent directors at U.S. corporations have become more important, especially when it comes to “clubby” boards. That’s the view of Brian Stafford, CEO of Diligent Corp., a board management software company, who spoke with The Deal's Activist Investing Today podcast about a trend of lead independent directors meeting with shareholders and why it often takes scandals – like those witnessed at Wells Fargo, Wynn Resorts and Rite Aid -- to drive boardroom shakeups. Stafford explains that an activist hedge fund often seeks to find a lead independent director privately to see if he or she is willing to discuss their point of view. He also said 2019 will bring more diverse boards, higher-quality director serving on fewer boards overall and a spike in outside advisers to corporate boards. “The lion’s share of your understanding of how the company is performing is filtered through the company,” he said. “When an activist shares a stat that we’re underperforming our comp set we’re not surprised because we were always given a different set of comps.”

Institutional investors aren’t afraid to tell companies that shareholders should be permitted to buy as many shares as they want as long as they don’t breach antitrust limits. At least that’s the view of MacKenzie Partners’ Bob Marese, who spoke with The Deal’s Activist Investing Today podcast about why a corporation may experience collateral damage when they install a poison pill in response to an activist. In a wide-ranging conversation, Marese offered up his views on why companies engaging in M&A should do more to prepare for activists. He also explained why Elaine Wynn was so successful in her “no vote” campaign at Wynn Resorts.

Activist hedge funds seeking board control essentially want corporations to give them "the keys” to businesses. As such they need to prove they have qualified director candidates and an in-depth understanding of their targeted company. At least that’s the view of Cristiano Guerra, head of the Institutional Shareholder Services Special Situations Research, who spoke to The Deal's Activist Investing Today podcast about why activists can't just point to the problem and say "trust us, we'll get it right." Guerra offered up a behind-the-scenes look at how ISS sets up meetings with companies and their adversaries, what impact benchmark policies have on contests and why the adviser thinks universal proxy cards make sense.

The director of John Weinberg Center for Corporate Governance spoke to The Deal’s Activist Investing Today podcast about why he believes Third Point’s Dan Loeb is fortunate for getting what he got in a settlement with Campbell Soup, considering that opponents to his efforts controlled 41% of the equity. Loeb’s success at installing two dissidents on the company’s board is quite significant because it means “you will have independent voices in the boardroom.” Elson also argued that shareholders have “practically” no rights when it comes to a new board structure at Dell Technologies.

Activists seeking to take control of boards don't need to have a CEO candidate in mind but they should produce a clear position about what they would do on day one. At least that's the view of Juan Bonifacino, director of shareholder activism defense at boutique investment bank Stifel. Bonifacino spoke to The Deal's Activist Investing Today podcast about why activists seeking to take control of boards need to provide a really compelling reason to forgo the "checks and balance" position that would come with a minority slate. The boutique investment banker spoke about Third Point's director battle at Campbell Soup as well as why he thinks companies and activists will need to spend more time talking to index funds in the years to come. He also offered up some pros and cons associated with hostile bids coupled with proxy contests. "Change of control [contests] really ratchet up the risk for a lot of unintended consequences for a company," Bonifacino said.