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Institutional EYE

Commentary on Corporate Governance Issues

Directors as change agents

Owning shares entitles you to dividends and voting rights. Secured lending in the extreme, entitles you to seize the assets of the company to make your money whole. Recent developments in Yahoo Inc. pose a question that if a minority equity holder in the US is able to nominate directors to the board (- or initiate the nomination in this case) to influence the future direction of the firm, then why are lenders in India not doing the same? A quick recap on the events at Yahoo.

Starboard Value, an investment advisor, recently wrote to the shareholders of Yahoo Inc. about seeking the election of its nine nominees to the company’s Board. In its letter Starboard stated that “Yahoo is deeply undervalued and opportunities exist within the control of management and the Board to unlock significant value for the benefit of all shareholders.” They go on to state that the Board and management team of Yahoo has repeatedly failed shareholders, that they are extremely disappointed with the oversight provided by the Board, and believed the Board lacks the leadership, objectivity, and perspective needed to make decisions that are in the best interests of shareholders.

Starboard the largest shareholder in Yahoo owns 1.7% of the equity valued at US$570 million, invests in “deeply undervalued companies and engages with managements and boards to identify and execute on opportunities to unlock value.”

Yahoo’s problems are not new. Back in 2012 the company had hired Merissa Mayers, as CEO, to help it sort through the issues. Starboard believes that the declining profitability of the core business has been the root of Yahoo’s problems, which it should jettison. Starboard began their dialogue with the CEO, notched it up to the Chairman, extended it to the Board and finally all shareholders. And while at first they engaged with the Yahoo Board and management privately, with the passage of time this dialogue became very public.

Yahoo in its defence has cited the growth in new business of over US$ 1.0 b. and returning US$ 9.1 b. to shareholders. It has appointed two new directors on its board and has now called for bids for selling its core business.

Starboard fed-up with the slow progress, has stepped up pressure by setting the stage for a proxy battle in June. In its most recent letter seeking election of nine of its nominees on the Board, Starboard has pointed out that it sifted through a hundred candidates before narrowing down to the nine, and provided the detailed biographies of its nine candidates.

Time will tell whether Yahoo will survive and whether the decision to sell its core business is the correct one but what is noteworthy is enhancing value through control over the board and finding over 100 people who could possibly sit on the high table. The US has a long history of directors being hauled to court and Indian laws relating to class action suites, though proposed are yet to be notified. Yet perversely only the well managed companies manage to find directors. At the first whiff of a crisis the banks and institutions are the first to withdraw their nominees. Why is it that those whom you would trust, step off the board?

To begin with, the regulations offer limited protection to directors. The Companies Act, in S. 149 offers only limited protection to non-executive and independent directors with no protection from arrest and puts the onus on such directors to prove in court that the acts in question were done without their knowledge and further that they couldn’t have prevented the same even if they had exercised due diligence. In reality this translates to individual directors being caught up in legal proceedings lasting years to prove their innocence. This is deleterious particularly for banks that are trying to recover money and want to appoint a nominee on the board. This explains the foot dragging by banks in taking charge of companies that owe them large sums of money and replacing the director’s en mass. The liabilities of non-compliance passes on to these new directors. FEMA violations, customs duty, past provident fund not paid, factory not in compliance with safety regulations. This list is long and covers a range day to day actions, which a director can never control.

Under the Companies Act 2013 the definition of the term “officer who is in default” as currently worded exposes non-executive and independent directors to liabilities for offences under the Act which cannot be the intention, as the day-to-day affairs of the company are managed by the executive management and key managerial personnel. The definition of 'Officer-in Default' u/s. 2(60) of the act needs to be amended by excluding applicability of the definition on nominee directors of all banks, in cases under CDR and SDR. The exemption needs to be granted with a retrospective date. Further, nominee directors should be provided immunity from prosecution under all laws on the lines of those enjoyed by nominee directors of SBI (under the SBI Act) and state financial corporations (under the Sate Financial Corporations Act).

This is not new. The Ministry of Corporate Affairs had granted some exemptions in its Master Circular on the prosecution of Directors on these lines in its Circular dated July 29, 2011 under the Companies Act, 1956.

Two other observations. Yahoo the largest shareholder holds just 1.7% of the equity and hopes to accomplish so much. In India just to affect change on the Board you need a minimum 10% shareholding. Unless you lower this 10% threshold and bring about cumulative voting, controlling the company through the Board will be impossible. Cumulative voting is permissible, and GSK Consumer Health allows this.

Finally these dynamics in India are different because the owner is usually also the manager This means that the independent directors invariably see themselves more as advisors to the controlling shareholder rather than as someone to protect the interest of the minority investor or even the company. This needs to change for real change to happen.

A modified version of this article written by Amit Tandon appeared in today’s Business Standard. View article: Directors as change agents.

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