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The Essence of Shareholder Activism. International Corporate Governance Meeting: Why Corporate Governance Matters for Vietnam Hanoi December 6, 2004 Hasung Jang jangya@chol.com Korea University . Why Shareholder Activism. Minority shareholders are not protected

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The Essence of Shareholder Activism

International Corporate Governance Meeting:

Why Corporate Governance Matters for Vietnam

Hanoi

December 6, 2004

Hasung Jang

jangya@chol.com

Korea University


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Why Shareholder Activism

  • Minority shareholders are not protected

    • Expropriation of minority shareholders

    • No independent director and auditor

    • Lack of monitoring function in the company

  • Agency problem & moral hazard of management

    • Shareholder’s value is ignored

    • Controlling shareholder or managements are involved in self-dealing

    • Nepotism in the management

  • Weak enforcement of laws & regulations

    • Laws are sleeping in the book

  • Market monitoring function is weak

    • Institutional investors are passive due to conflict of interest

  • Government can not do everything


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Why Shareholder Activism

  • Poor Corporate Governance Practices

    • Company assets are siphoned for the family

    • Illegal or unfair related party transactions

      • Cross debt guarantee, hidden debt

      • Sales and purchases among affiliated companies

      • Financial subsidies for related parties: Loan

  • No Transparency & No Accountability

    • Disclosures and auditor’s reports are not credible

    • Controlling family and management are not accounted for mis-management

  • Poor corporate governance creates corruptions

    • Improving corporate governance is one of effective way to fight against corruption in the society


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Objectives of Shareholder Activism

  • Independent Watchdog on the Management

  • Protect Shareholder’s Value

    • Stop profit-siphoning management practice

    • Stop subsidies to affiliated companies

    • Stop illegal intra-group transactions

  • Ensure Transparency & Accountability

    • Independent management from controlling shareholder

    • Outside directors representing minority shareholders

  • Fights against Corruptions


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What Shareholder Activism Can Do?

  • Monitoring and reporting corporate activities

  • Constructive talks with management before taking actions

  • Exercise shareholder rights

    • Attending shareholder meetings

    • Proposing agenda at the shareholders meetings

    • Electing directors

      • Proposing outside director candidate

      • Proxy fights

    • Taking legal actions

      • Filing civil lawsuit: Derivative actions, Class-Actions

      • Filing criminal investigation

  • Proposing and lobbying for legislation


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Minority Shareholder’s RightKorean Case: Security Exchange Act.

April 1997 March 2001

Requesting termination of directors & auditors 1% (0.5%) 0.5% (0.25%)

Seeking injunctive action against illegal acts 1% (0.5%) 0.05% (0.025%)

Bringing shareholder derivative actions1% (0.5%) 0.01%

Compelling inspection of financial records 3% (1.5%) 0.1% (0.05%)

Convening a special shareholders’ meeting3% (1.5%) 3% (1/5%)

Making a shareholder proposal1% (0.5%) 1% (0.5%)

Requesting cumulative voting-- 3%

Appointing inspector to examine

corporate affairs & records 3% (1.5%) 3% (1.5%)

Terminating a liquidator3% (1.5%) 0.5% (0.25%)

Number in ( ) is for large company


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Shareholder ActivismKorean Case

  • PSPD-PEC has engaged in shareholder activism since January 1997

  • PSPD

    • People’s Solidarity for Participatory Democracy

    • Independent civil rights advocacy NGO

    • Watchdog on government, legislator, judiciary, business

    • Website: http://eng.peoplepower21.org/

  • PEC

    • Participatory Economy Committee under PSPD

    • Economic reform activism

    • Shareholder activism

    • Monitoring large companies


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PEC Organization

  • Staff

    • Three full-time staff & 20 volunteer professionals

    • Volunteers : lawyers, CPAs, professors

  • Funding

    • 100% individual donations

    • No funds from corporations & government

    • Separate funding from PSPD

  • Supporting Institute

    • Center for Good Corporate Governance

    • Website: http://cgcg.or.kr/cgcg/cgcgmain/html_en/index.htm


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Target Companies

  • Conglomerate (Chaebol companies)

    • Samsung Electronics

    • SK Telecom, SK Shipping Co.

    • Hyundai Heavy Industry

    • Dacom

    • Daewoo Corporation

    • LG

    • Hanwha

    • Doosan Corporation

  • Financial Institutions

    • Korea First Bank

    • Hyundai Investment Trust Co

    • Hyundai Securities Co.

    • Daehan Life Insurance


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Monitoring Corporate Practices

  • Disclosures

  • Outside director’s participation & performance

  • Related party transactions

  • Issuance of new equity and equity related bonds

  • Board activities: agenda, attendance, voting record

  • Accounting practices


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Attending Shareholder Meetings

  • Year-round collection & analysis of information

  • Pre-negotiation with management on agenda

  • Advance notice to management on issues & list of questions

  • Proxy solicitation on agenda of shareholders’ meeting

  • Two or three companies per year

    • 13 ½ hours at Samsung Electronics AGM

    • 10 ½ hours at Korea Exchange Bank AGM


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Proxy Solicitation

  • Soliciting proxies from local and foreign investors

    • PSPD’s own road show and mail campaign

    • Proxy on election of outside directors

  • Shareholder resolution at AGM

    • Amendment of articles of incorporation

      • Internal compliance procedure on related party transaction

      • Limits on issuance of equity related securities to related parties

      • Adopting cumulative voting

    • Dismissing directors and management involved in illegal transaction


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Election of Outside Directors

  • Nominating candidates for outside directors

  • Election of independent outside directors

    • Hyundai Heavy Industry

      • Management accepted 1 outside director

    • SK Telecom

      • Management accepted 3 outside directors

      • Outside directors have a veto power on related party transactions

    • Samsung Electronics

      • Not Successful


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Derivative Lawsuits

  • Korea First Bank

    • $38 million

    • Defendants: two former presidents two directors

    • Filed in June 1997. Supreme court’s ruling in March 2002

      • Illegal loans

      • Taking bribe

    • The first derivative lawsuit in Korea

  • Samsung Electronics

    • $90 million

    • Defendant: Chairman KH Lee, 10 directors

    • Suit filed in Oct. 1998, District court ruled in Dec. 2001

      • Illegal political contribution

      • Unfair related party transations


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Other Legal Actions

  • Filing lawsuits

    • Nullify agenda un-lawfully adopted at shareholder meetings

    • Cancellation of CB & BW issued to controlling family

    • Injunction to stop debt guarantee to affiliated company

    • Lawsuit against auditing accounting firm for failed audit

  • Inspection of financial records

    • Hyundai Investment Trust Co

      • Record of in-house asset transactions

    • Samsung Electronics

      • Obtaining court order to yield minutes of board


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Other Legal Actions

  • Filing criminal investigation

    • Stock price manipulation: Hyundai Securities

    • Fund embezzlement: Daehan Life Insurance

    • Off-shore paper company operation

    • Off-shore off balance sheet debt

    • Asset stripping using convertible bond, bond with warrant

    • Falsifying minutes of board

  • Requesting special audit by FSC

    • FSC: Financial Supervisory Commission

    • Accounting manipulation

    • False or failed disclosure


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Off Shore Paper Company Operation

Samsung ?

Fund

$300 mil

Bridge

Loan

Samsung

Motor

Repayment

Stock

Pan Pacific

Investments

(Paper Company)

Put Option

Samsung

Electronics

Bond

Fund

Call Option

Samsung

Mech. Elec.

Bond

Investor

Samsung

SDI

Effective

Debt Guarantee


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Legislation Proposal and Lobbying Actions

  • Strengthen minority shareholder rights

    • Amendment of Commercial Code & Security Exchange Act

    • Lowering legal requirements on shareholder rights

  • Regulation on related party transaction

    • Amendment of Fair Trade Act

  • Governance on financial institutions

    • Regulation on bank ownership

    • Disclosure and voting of investment trust company

  • Security Class Action Suit Law

  • Anti-Corruption Law


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What Will Expedite Changes?

  • Government

    • More direct regulations on corporate governance

    • Enforcement of regulations

    • Strengthening minority shareholder’s right

  • Legal System

    • Fair and effective court system

    • Fair and independent prosecution

    • Security class action suit


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What Will Expedite Changes?

  • Corporation

    • Voluntary adaptation of global standard

    • Active independent outside directors

  • Market

    • Pro-active role of institutional investors

    • Active participation at shareholder’s meeting

  • Civil Society

    • Participation in policy making: NGOs

    • Minority shareholder activist watch dog