2012

[CORPORATE

CONTROL:PERSPECTIVES OF HOSTILE TAKEOVERS]

SUBMITTED BY:
Geetanjali Gulati(50060) Gunjan Nadev (50064) Hullas Arora (50069) Pulkit Bakshi (50122)

TABLE OF CONTENTS

Defining Corporate Control....................................................................................................3 Market for Corporate Control.................................................................................................5 Hostile Takeover.....................................................................................................................7 Case Study............................................................................................................................. 11 Conclusion..............................................................................................................................14 Appendix.15

Defining Corporate Control

Progress in scientific reasoning is impossible without exactitude of definition. Yet an exact technical definition begs the question. Implicit in the accurate statement of any concept is the entire philosophy underlying it. Because of this- and in spite of it- any attempt at a reasoned body of philosophical principles must begin with an inclusive set of painstakingly refined terminology. Everything cannot be said at once. This is an inherent disability of scholarship. The proofs, therefore, of the underlying principles cannot be for now. Better to present tentatively a precise definition of the object of investigation, and proceed from there to elaboration, development, and proof. Without knowing that about which, one can scarcely know why, wherefore, or whither. This is eminently true of the synthesis of a philosophy of corporate control. The years after the hesitant emergence of the concept in the mid-thirties saw no forthright attempt at truly scientific definition. Understandably, an enforced preoccupation with novel rudimentary problems precluded time-consuming rumination. Yet unhurried meditation alone could formulate the terms of art so indispensable to this complex and adolescent science. Furthermore, the most unfathomable questions are often answered by a simple statement of the principal terms.

The term "corporate control" refers to the authority to make the decisions of a corporation regarding operations and strategic planning, including capital allocations, acquisitions and divestments, top personnel decisions, and major marketing, production, and financial decisions. This concept is frequently applied to publicly traded companies, which may be susceptible to changes in corporate control when large investors or other companies seek to wrest control from managers or other shareholders.

CORPORATE CONTROL vs. CORPORATE GOVERNANCE The notion of corporate control is similar to that of corporate governance; however, it is usually used in a narrower sense. Corporate control is concerned with who hasand, moreover, who exercisesthe ultimate authority over significant corporate practices. Governance, by contrast, involves the broader interworking of the day-to-day management, the board of directors, the shareholders at large, and other interested parties to formulate and implement corporate strategy.

EVOLUTION OF CONTROL Partnerships involving an owner responsible merely for providing capital and a manager responsible for running the business have been traced back to the 12th century. During the Industrial Revolution, however, a class of managers who held ultimate decision-making power in their companieseven though they owned a relatively negligible amount of stockevolved. This concept of managerial control, made possible through a scattered and diverse ownership, had been established by the end of the 19th century, and was epitomized by railroad promoters who managed to control enterprises while putting up very little, if any, capital of their own. The ordinary stockholder is relatively powerless in this situation; thus, corporate control is quite distinct from corporate ownership. Corporations can pass from owner control to management control in various ways. The early growth of large corporations is typically a period in which they are dominated by an entrepreneur who owns a controlling interest in the company's stock. This was typical of large firms in the United States in the beginning of the 20th century. In order to raise capital for expansion, the entrepreneur can sell off most of his holdings and use the authority of his position in the company to maintain control, as happened in many U.S. firms in the post-war years. Firms can also be management-controlled from the beginning, by issuing widely dispersed shares such as those the railroad promoters succeeded in building in the 19th century.

EXERCISING CONTROL

The power to make decisions regarding a firm's operations and policies can be based on legal authorityi.e., ownershipor the power of one's position in the company. The government, competition, banks, and societal forces limit this power but do not make the decisions, except in industries that are regulated by the government or that are under the control of a financial institution. Whether managers in a position of control act to further their interests or those of the owners is a point of potential conflict. The management entrenchment theory states that managers tend to run a company in ways that distance the board of directors, and thereby the shareholders, from many aspects of control. This may be done subtlety, as when managers accumulate large stock holdingsa practice that is often assumed to better align management with shareholder interests. The interests of owners are usually simply defined in terms of profit maximization. Those of management have been variously categorized on one hand as altruism, i.e., desiring the freedom to carry out policies that better serve the good of society than purely profit-seeking activities would, and on the other, as pure self-interest in lavish pensions, compensation, perquisites, and other "expense preferences" that are not related to firm performance. A bias towards growth over profits has also been speculated, based on the argument that with a larger organization, executives can justify larger salaries. Also, larger corporations have been perceived as being less vulnerable to takeover, although the leveraged buyouts and takeovers of the 1980s have proven that the Goliaths among corporations are not invincible. Studies have found managers whose compensation is not as incentive based are more cautious in borrowing money for development, perhaps because they do not want to place their firms under greater control by financial institutions, or jeopardize their stability and reputation. Also, the larger the managers' own corporate holdings, the more aggressively they tend to borrow. Shareholders have the legal right to remove managers who do not serve their interests. A number 3

of factors, however (e.g., management control of proxy machinery), can make this difficult in large corporations. Often share ownership is so diffuse that it is hard to mobilize the shareholders, most of whom never exercise their right to vote, around any particular issue. Nonetheless, a "market for corporate control" has arisen when individuals or institutions buy up significant blocks of a single company's stock and then place demands on the management. Scholarly research suggests that such contests for control have indeed resulted in changing corporate policies and improving stock performance over time. When shareholder interests are compromised, inefficient managers may be susceptible to takeover bids caused by reduction in stock value. One way management control is maintained is by controlling the composition of the board of directors, mostly composed of company officers, officers of important suppliers or financial institutions, or personal friends of management. The few outside directors, or directors who do not themselves hold offices in the corporation, are often unable to make informed decisions or suggest alternative courses of action due to their unfamiliarity with the company, or, in many cases, other responsibilities, such as serving on other boards, for example. Representatives of banks are often limited by legislation as to their involvement as directors.

TRENDS IN CORPORATE CONTROL

Companies in the United States, and to a lesser degree in the United Kingdom, tend to be more attuned toand controlled byshareholder interests than those of management. Observers have attributed this trend, which began in the United States during the 1950s and accelerated in the 1980s and 1990s, to the powerful cadre of institutional investors seeking to influence corporate governance. Institutional investors like pension funds, mutual funds, and other pooled investment vehicles have amassed market clout as they have burgeoned in size. With such clout they have effectively influenced practices at the companies in which they invest. This phenomenon is due in large part to the U.S. practice of private (i.e., individual and corporate rather than government) retirement financing. In other leading countries, including Germany and Japan, retirement benefits tend to be nationalized, and thus institutional investors' power in those markets tends to be much less. As a result, corporate control outside the United States tends to be more managerial than owner-based. To some observers in the 1990s, the contest for corporate control seemed poised on the brink of a new revolution in which corporate takeover battles would be more politicized. An example was Carl Icahn's hostile takeover of USX Corporation that ended with a negotiated solution involving input from many parties. Recognizing the increasing desire of investors to control corporate policy for short-term growth, some managers, such as at the former MCI Communications, now part of MCI WorldCom, Inc., have resorted to tracking stock ownership patterns with private detective firms in order to find sympathetic investors.

Market for corporate control

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Viewing the market for corporate control as the arena in which management teams compete is a subtle but substantial shift from the traditional view, in which financiers and activist stockholders are the parties who (alone or in coalition with others) buy control of a company and hire and fire management to achieve better resource utilization. The managerial competition model instead views competing management teams as the primary activist entities, with stockholders (including institutions) playing a relatively passive, but fundamentally important, judicial role. Arbitrageurs and takeover specialists facilitate these transactions by acting as intermediaries to value offers by competing management teams, including incumbent managers. Therefore, stockholders in this system have relatively little use for detailed knowledge about the firm or the plans of competing management teams beyond that normally used for the markets price setting function. Stockholders have no loyalty to incumbent managers; they simply choose the highest dollar value offer from those presented to them in a well-functioning market for corporate control, including sale at the market price to anonymous arbitrageurs and takeover specialists. In this perspective, competition among managerial teams for the rights to manage resources limits divergence from shareholder wealth maximization by managers and provides the mechanism through which economies of scale or other synergies available from combining or reorganizing control and management of corporate resources are realized. Alongside markets for products, labour, and finance, the market for corporate control represent a distinct fourth type of capitalist market thereby turning companies that combine capital and labour in the production of commodities into commodities themselves. On the one hand, the market for corporate control is often seen as an important mechanism of corporate governance. Given the dispersed nature of corporate ownership, poorly performing firms may be purchased at a low price and inefficient management replaced. On the other, takeovers may also lead the transfer of wealth from stakeholders to shareholders and lead to net losses of efficiency or wealth due to breaches of trust. In both cases, markets for corporate control have crucial consequences for the distribution of power over corporations. Takeover activity varies across countries related to the institutional characteristics of different national business systems.

Hostile takeovers: An upcoming trend in Corporate Control

Take over is a corporate action where an acquiring company makes a bid for an acquiree. A hostile takeover is an acquisition in which the company being purchased doesnt want to be purchased, or doesnt want to be purchased by the particular buyer that is making a bid. How can someone buy something thats not for sale? Hostile takeovers only work with publicly traded companies. That is, they have issued stock that can be bought and sold on public stock markets.

HOW DOES IT WORK?

Most large companies do not own a majority share of their own stock as in case of, lets say Yahoo. Lets say, Yahoo owns 30% of their stock with the other 70% being owned by individuals or companies, where each entity only owns 1% or less. Microsoft can attempt a hostile takeover by buying stock from all the individuals until they own more than the 30% of Yahoo stock.

WHAT ARE THE DIFFERENT METHODS FOR A HOSTILE TAKEOVER?

The two primary methods of conducting a hostile takeover are the tender offer and the proxy fight. A tender offer is a public bid for a large chunk of the targets stock at a fixed price, usually higher than the current market value of the stock. The purchaser uses a premium price to encourage the shareholders to sell their shares. The offer has a time limit, and it may have other provisions that the target company must abide by if shareholders accept the offer. In a tender offer, the bidder contacts shareholders directly; the directors of the company may or may not have endorsed the tender offer proposal. For example, if a target corporation's stock were trading at $10 per share, an acquirer might offer $11.50 per share to shareholders on the condition that 51% of shareholders agree. Cash or securities may be offered to the target company's shareholders, although a tender offer in which securities are offered as consideration is generally referred to as an "exchange offer." A proxy fight or proxy battle is an event that may occur when a corporation's stockholders develop opposition to some aspect of the corporate governance, often focusing on directorial and management positions. Corporate activists may attempt to persuade shareholders to use their proxy votes (i.e. votes by one individual or institution as the authorized representative of another) to install new management for any of a variety of reasons. Shareholders of a public corporation may appoint an agent to attend shareholder meetings and vote on their behalf. That agent is the shareholder's proxy. The buyer doesnt attempt to buy stock. Instead, they try to convince the shareholders to vote out current management or the current board of directors in favour of a team that will approve the 6

takeover. The term proxy refers to the shareholders ability to let someone else make their vote for them the buyer votes for the new board by proxy.

HOW TO DEFEND A HOSTILE TAKEOVER?

There are several ways to defend against a corporate hostile takeover. The most effective methods are built-in defensive measures that make a company difficult to takeover. These methods are collectively referred to as "shark repellent." Here are a few examples: The golden parachute is a provision in a CEO's contract. It states that he or she will get a large bonus in cash or stock if the company is acquired. This makes the acquisition more expensive and less attractive. Unfortunately, it also means that a CEO can do a terrible job of running a company, make it very attractive for someone who wants to acquire it, and receive a huge financial reward. The supermajority is a defence that requires 70 or 80 percent of shareholders to approve of any acquisition. This makes it much more difficult for someone to conduct a takeover by buying enough stock for a controlling interest. A staggered board of directors drags out the takeover process by preventing the entire board from being replaced at the same time. The terms are staggered, so that some members are elected every two years, while others are elected every four. Many companies that are interested in making an acquisition don't want to wait four years for the board to turn over. Dual-class stock allows company owners to hold onto voting stock, while the company issues stock with little or no voting rights to the public. Dual-class stock enables investors to purchase stock without purchasing control.

In addition to takeover prevention, there are steps companies can take to thwart a takeover once it has begun. One of the more common defences is the poison pill. A poison pill can take many forms, but it basically refers to anything the target company does to make itself less valuable or less desirable as an acquisition. People pill - High-level managers and other employees threaten that they will all leave the company if it is acquired. This only works if the employees themselves are highly valuable and vital to the company's success. The crown jewels defence - Sometimes a specific aspect of a company is particularly valuable. For example, a telecommunications company might have a highly-regarded research and development (R&D) division. This division is the company's "crown jewels."

It might respond to a hostile bid by selling off the R&D division to another company or spinning it off into a separate corporation. Blip-in - This common poison pill is a provision that allows current shareholders to buy more stocks at a steep discount in the event of a takeover attempt. The provision is often triggered whenever anyone shareholder reaches a certain percentage of total shares (usually 20 to 40 percent). The flow of additional cheap shares into the total pool of shares for the company makes all previously existing shares worth less. The shareholders are also less powerful in terms of voting because now each share is a smaller percentage of the total. Greenmail is similar to blackmail, but it's green to represent the money the target must spend to avoid the takeover. If the acquiring company is on the verge of a controlling interest, it might offer the target the option to buy their stock back at a premium price. Sometimes, acquisition isn't the goal -- the acquiring company is just buying stock so it can sell it back and make a profit on the greenmail payment. The white knight is a common tactic in which the target finds another company to come in and purchase it out from under the hostile company. There are several reasons why it would prefer one company to another -- better purchase terms, a better relationship, or better prospects for long-term success. With the Pac-man defence, a target company thwarts a takeover by buying stocks in the acquiring company, then taking it over.

BUILDING ORGANIZATIONAL RESILIENCE

Corporate hostile takeover defences typically only prevent known strategies under predicted market scenarios. Crises such as a corporate hostile takeover are often the result of a previously unknown event or combination of events. In most cases, senior management and employees of a hostile takeover target have vested interest in the success of the acquisition. Senior management of organizations typically have employee stock options, which are financial derivatives that carry the right, but not the obligation, to buy a certain amount of shares in the company at a predetermined price. The purpose of employee stock options is to align the incentives of the employees and shareholders of a company. For example, a senior manager of a company is awarded a stock option that gives him or the right to purchase stock at $10 per share, and the stock is trading at $12 per share. The shareholders want to see the stock appreciate. If the stock appreciates to $15 per share, 8

the owner of the option can acquire the stock at $10 per share and sell it for $15 per share. The shareholders also benefitted because the price per share increased in value by $3 per share. In theory, stock options align interests so that everyone is striving for the same goals. Middle management and staff employees likely also have vested interest in the success of the acquisition because of the geographic location of their work place and/or relationships with coworkers. Establish strong core values and a central purpose can help to build resilience. For example, the purpose of a pharmaceutical company is to develop, manufacture, and distribute pharmaceutical drugs that increase the quality of living for humanity, regardless of organizational ownership. Create psychological containment systems to prevent grief and anxiety from overwhelming the organizational transition. Establishing a fund that can be drawn from to assist with the transition can also help at the time of the takeover.

Case study
In the complex world of corporate mergers and acquisitions, rarely do they commence without a hitch or resolve with everyone smiling. The terms 'friendly' and 'hostile' are simplified notions for a series of very complicated manoeuvrings and equanimity is a tough practice for either party involved. But when you have foreign companies attempting to acquire large local brands, it's time to let the jingoism fly, as it often gets personal. The bigger the companies are on the metaphorical chessboard, the more an outcry is likely to be heard beyond the confines of the boardroom

The Mannesmann case was unprecedented in post-war Germany as a successful hostile takeover bid made on the open market. Mannesmann was founded in 1890 to produce seamless tubes. Deutsche Bank was influential in wrestling control of the ailing firm away from its founders in 1893.The company diversified into coal and steel in the early 20th Century, and into machine tools and automotive products in the 1970s and 1980s. Further change began in the 1990s following the liberalization of the German telecommunications market. Mannesmann set up a new mobile phone network, D2, and two-thirds of total investment went into telecommunications to make it the largest business segment. Mannesmann also established itself throughout Europe by acquisitions of foreign companies. After becoming chair of the Management Board in May 1999, Klaus Esser announced the spin-off of industrial businesses and a future specialization on telecommunications in September 1999.He began adjusting the business to Anglo-American standards of investor orientation. His strategy aimed at giving investors a stock with a clear financial logic, since telecommunications was valued more highly than the traditional machine tools and automotive businesses. Mannesmann wanted to expand its footprint to the UK as well. That is the reason why Mannesmann hired Merrill Lynch to advise in the question of acquiring Orange in autumn 1998, but Hutchinson Whampoa, Oranges major shareholder did not want to sell the company for a whole year. Klaus Esser finally succeeded: in the autumn 1999 Hutchinson agreed with selling Orange, and on October the 20th Esser bid for the company. After a share swap acquisition of Orange PLC, its previous owner, Hong Kong conglomerate Hutchison Whampoa, held the only large block stake in Mannesmann. The deal created a peculiar situation for Vodafone. Mannesmann was going to be a major player in all European markets, whereas Vodafone would just be a minority stakeholder in all markets but the UK: something the Vodafone strategists could not agree with. When the idea emerged is not clear, but in October Vodafone hired Goldman Sachs to help with the possible options regarding Mannesmann, and moved quickly. It was clear that the merger between Mannesmann and Orange could not be broken; it was a done deal, so the only possibility left open for Vodafone was to bid for Mannesmann itself. Political interest in the case would be 10

huge, that the company knew, but it set all reservations aside and bid on November 14th: a friendly takeover, valuing Mannesmann at 204 a share. Esser and his company declined, and the hostile bid was launched on November 19th an all stock offer, valuing the Mannesmann stock at 240 a share. While Mannesmann had excellent stock market performance, it remained undervalued compared to its British rival Vodafone. Mannesmann shares increased nearly ninefold from 34 euros in 1996 to 300 euros in February 2000, outperforming the DAX-30 index. During the same period, Vodafone also had a seven-fold increase in its share price from 49 to 343 pounds. In 1992, Mannesmanns price-book ratio (PBR) was just 1.4, but grew over the 1990s to 10.2 in 1999. Meanwhile, Vodafone had a PBR of 7.7, which grew to some 125.5 in 1999. Both telecommunications companies were valued at astronomically high levels, reflected in Mannesmanns priceearnings ratio (PER) of 56.1 and Vodafones PER of 54.4 in September 1999. After Esser refused, the Mannesmann share prices surged due to further speculation. Chris Gent launched a public bid on November 23 a pure swap of 53.7 Vodafone shares for one Mannesmann share, thus bettering the previous 100 billion euro offer to 124 billion euro. Vodafones published offer cited the economies of scale through activities in 25 countries that would reach 42.4 million customers thereby arguing for a greater market value of a combined company. Gent did acknowledge the fact that hostile takeovers had generally been viewed as morally bad in Germany. But he attempted to portray Vodafone in the role of the victim rather than aggressor. The takeover of Orange had betrayed Mannesmanns role as a strategic ally. Gent stressed the industrial rather than financial motives for the takeover. He made assurances that no closures or redundancies were planned. Gent described Vodafone as being appropriate, honest, and playing by the rules. Vodafone would abide by Germanys voluntary takeover code. The German code was notably more bidder-friendly than the British code, since it allows subsequent improvements to the offer and permits pure share swaps with no cash component. Before 1998, Mannesmann management had not generally considered the threat of a hostile takeover bid. A most remarkable aspect of the defensive strategy was that Esser never questioned the general legitimacy of hostile takeovers, nor did he appeal to a defence of Germanys stakeholder model. Here the different styles of leading the company showed up: Esser, a leader who was not able to delegate much of his competence had to take all steps himself, whereas Vodafone leader Gent had a staff of well trained people who he trusted much and had given them far reaching decision making competence. Finally, the most potent escape plan for Mannesmann was triggered: to find a white knight which would make it impossible for Vodafone to take over Mannesmann, due to the size of the company thereafter. By mid-January 2000, it had become increasingly clear that the majority of Mannesmann shareholders would sell to Vodafone. Foreign shareholders seemed clearly in favor of Vodafone, and held a majority of shares. Among domestic shareholders, opinion was estimated as being split 50:50. The takeover battle was decided when Klaus Essers final and most spectacular defensive 11

strategy failed: the search for a white knight. In the second week of January, rumors emerged that the French conglomerate Vivendi might become a partner in the takeover defense. Mannesmann surprisingly announced that Vivendi was its strongest partner and shared the same strategic vision. Amid merger rumors, Mannesmann announced it was developing plans for a merger of its core businesses with the telecommunications division of Vivendi. At the same time, Esser announced that a merger with Vodafone was being considered if Mannesmann shares made up a clear majority in the new company, with 58.5% being given as a realistic figure. Chris Gent had offered Mannesmann shareholders only a 48.9% share of the new company. By the end of January, Vodafone entered into negotiations with Vivendi and sought to win them as a possible buyer of Orange following the takeover battle. The fronts shifted, as Vivendi announced a joint Internet portal with Vodafone if the takeover succeeded. The white knight strategy had failed. At this point, the blockholder, Hutchinson Whampoa, intervened to press Esser to accept the Vodafone offer. On February 3, 2000, an agreement was announced between Vodafone and Mannesmann. Klaus Esser accepted an improved bid giving Vodafone a 50.5% and Mannesmann a 49.5% share in the merged company. Klaus Esser, who always believed that if his shareholders would give him another year, Mannesmann could easily outperform Vodafone and at the end of the year a merger would possibly be a merger in favour of Mannesmann, had to retreat. All he could do in the end was to make the deal as positive for his shareholders as possible.

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CONCLUSION
Usually decision for taking over a company comes into play when a firms internal governance (board of directors) fails. It often refers to a takeover market where underperforming or undervalued firms become attractive takeover targets by potential acquirers. When firms perform poorly it often reflects poor internal governance and therefore external governance control will kick in. Potential acquirers might buy up a large amount of a target firms equity in order to take control of the board and subsequently replace the top management team because poor performance often reflects poor management. The aim of a takeover is to revitalise a poorly run company and achieve higher profitability after restructuring. Potential acquirers believe that they can manage the target firm more effectively than the current set of the top management. One of the major reasons for a takeover is also to expand operation or thwart competition. While Mannesmann wanted to expand operations and bought Orange, Vodafone wanted took over Mannesmann to hinder its growth and dominance in the European Market. Evaluating the deal from the perspective of all parties that would be affected, we first and foremost discuss the employees. In the case when the merger leads to change in practices, culture and organisational policies, it is ultimately the employees who have to deal with as they are the ones affected most. The takeover is a drastic change for them, and if not executed properly can lead to insecurities, job dissatisfaction and declining productivity. Another major concern is the insecurity leading to an individuals job position. A takeover might raise doubts about the security of his job, position in organizational structure and changes in job description. Also, employees might be against the takeovers from the beginning of the deal itself and may find themselves at crossroads where loyalties to the board and company are taken into account. Another area is the customers and closely related to it-public image of the company. Hostile takeover deals more often than not lead to negative publicity of the takeover company, often described as the black knight, and the target company as victim. Too much time and resources spent on the negotiations might lead to loss of productivity and both the companies might lose business to their competitors.

Another important area is the shareholders of the company. Will they benefit from the deal? Or will the takeover create some value for them? Are some questions which need to be addressed? Much has been written, often in dramatic and ominous language, about hostile takeovers and the various steps companies take to prevent them. While most of the articles and books view such events from the perspective of investment bankers and corporate officers, little has been written about the impact of hostile takeovers on shareholders of target companies. Yet these shareholders can experience significant financial consequences when the target company's board activates a defence or signals its intention to do so by adding defensive strategies to the corporate charter

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after the news of an impending takeover breaks. To assess the ramifications of a takeover, shareholders need to identify and understand the various defensive strategies companies employ to avoid one. These shark repellent tactics, named for the well-known circling predator, can be both effective in repelling a takeover and detrimental to shareholder value.

A merger in this huge size as with Mannesmann and Vodafone can be a positive thing for the combined entity, but if the corporate cultures do not go together well or the promised growth does not step in, leaving the hefty premium paid without reasons huge amounts of values can be destroyed in takeovers. In the months that followed, Vodafones EBIT rose at a rate of 24%, AND revenues at a rate of 32%. That was higher than expected by the consensus estimate and a sign of a healthy development of the company. Additionally Vodafone was one of the companies with the highest credit quality in its sector and therefore not restrained from further acquisitions by financial problems, in contrast to many of its peers in the market. Ultimately whether a takeover is justified or not, is a question which needs to be addressed in light of arrears like the value created, benefit to the target company, effect on the shareholders and the economy as whole. Some takeovers are good, when executed to help another company who is in financial doldrums, while some are bad when the company sees it as a manoeuvre by the company to gobble up the targets customers.

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