Next week marks the introduction of the mandatory universal proxy
card, possibly the most significant threshold in activist campaigns
for at least a decade.
Hitherto, activists seeking to elect new board members at U.S.
companies had to solicit votes on their own proxy card and investors
had to cast their votes on one of two cards – increasing the risk of a
disproportionate outcome – unless they could spare an analyst to
physically attend the annual meeting.
From September 1, companies will have to list valid nominees on a
single card, cutting the costs of a solicitation, dramatically
increasing the choice available to investors, and almost certainly
creating a litigator's dream.
Institutional Shareholder Services (ISS), which publishes
recommendations for how to vote in contests, said in a recent memo
that the new system is "a far superior way for shareholders to
exercise their voting franchise" that may increase the appeal of
"elective surgery" to upgrade boards and better equip them with the
skillsets and experience to weather crises.
That could mean more activism, especially by groups that have
traditionally lacked the resources to wage full contests.
"The universe of people who can carry out a proxy fight just increased
exponentially," Steve Balet, a partner at Strategic Governance
Advisors, told me this week. Founders and ex-CEOs, ESG-focused
investors, celebrity activists, and out of work politicians are just
some of the potential future dissidents he can foresee using the
universal proxy to force companies into taking a stand or changing
their approach.
Bruce Goldfarb, CEO of proxy solicitor Okapi Partners, says the reform
could lead to more personal campaigns and boards are having to
undertake fresh analysis of their vulnerabilities.
"The challenge is more on the company side to identify internally who
the potential targeted incumbents might be," he told me in an
interview. "Would they be considered weak links based on tenure,
diversity, skillset? Would they have a hard time meeting
shareholders?"
Balet agreed, adding that management campaign materials would have to
evolve beyond the current "CV and tick-box disclosures."
"Boards are going to have to show what expertise directors bring, what
specific needs they fill, what the value is," he said.
Indeed, ISS noted that it and institutional shareholders more broadly
"may require far more engagement with each side – and potentially with
every nominee, board or dissident – than has been necessary in the
two-card era."
And there will undoubtedly be hiccups along the way. Balet warns that
the universal proxy card could lead to messier fights with two or more
activists deciding to run competing slates, or a combination of hedge
funds and nonprofit activists vying for change at the same time.
However, the proxy voting adviser said it would not discard its
traditional approach to proxy contests, asking first whether change is
warranted at the company and, if so, which nominees would better serve
to enact that change. "An activist leading with a brilliant nominee,
but a weak case for change, will be less successful than the activist
who leads with a detailed, insightful argument as to why a company may
not be performing as well as it should," it said.
"I don't believe there's going to be a situation where a nominee is
elected with a big resume where there's not a reason to run the
campaign," said Goldfarb.
But ISS conceded that the degree of change required could be up for
debate, and investors could decide to be more proactive about using
contests to replace seemingly weaker board members.
Some of the biggest changes may not be visible even at the end of
proxy season in nine months.
"Like the kid that receives the hot new toy at Christmas, only to
become frustrated by its complex instructions, proxy advisers and
investors will have to carefully navigate the first few [universal
proxy card] contests," said ISS.
Others say it's unclear how many nontraditional activists are
preparing campaigns or prefer to wait and see how the changes shake
out. "There's going to be a percolation and then an explosion," Balet
says. "It may take a couple of years to build up."
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