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Winning Moves in the Age of Shareholder Activism

Shareholder activism has come of age. We know it when leading CFOs routinely confess that an activist threat is now what most keeps them awake at night. We know it when the list of companies under attack reads like a subset of the Dow Jones. We know it when the number of activist events at companies with a market capitalization of more than $100 million grows nearly fourfold in three years. And we know it when nearly 400 hedge-fund managers, corporate attorneys, investment bankers, proxy advisors, and public relations representatives—along with CNBC—pack the ballroom of the Crowne Plaza Times Square Hotel to attend a conference on activist investing. (In 2013, just two years earlier, that same event—13D Monitor’s Active-Passive Investor Summit—was held in the gentlemanly atmosphere of New York’s University Club, with a much smaller audience.)

Activism used to be a dirty word, but not anymore. Today, activists regularly grace the covers and homepages of the major business press. Whereas once an institutional investor had to sneak out of the office to share an investment tip with an activist, today investors talk openly about potential targets in their investment portfolios—companies that might be prodded into a different business or financial strategy to get their stock moving again.

Activists are large—and, like their targets, are getting larger. Their influence is continuing to grow. Their critics (and targets) see only ruthlessness or rapaciousness; but it’s facile to view activists as hit-and-run artists out for their own gain. Their methods may be aggressive, but the ends they agitate for—more disciplined management, a sharper strategy, and a more rational portfolio—are generally legitimate. Regardless of their ownership stake, activists deserve to be taken seriously.

So how should companies navigate today’s more unforgiving capital-market landscape? By thinking like their challengers: scrutinizing every dollar to be spent, questioning each business’s fundamental role in the portfolio, and maximizing every dollar of cash they hold.

If an activist strikes, management and the board must give its proposal fair consideration: honestly evaluating the activist’s demands against the lens of maximizing total shareholder return (TSR), and determining which ones stand the best chance of maximizing value. It is, after all, their fiduciary duty to define the path that generates the most value for shareholders. Then they must calmly execute the plan that best integrates the goals of shareholder value and long-term business success.

Five Guiding Principles

From our experience counseling companies in a variety of activist situations and our deep knowledge of most major activists, we have identified five guiding principles that companies can follow to fortify their position and reassure shareholders.

  • Deploy senior management wisely. The roles of the senior management team are critical during the activist response. Companies need to maintain focus on their core operations. But they also must engage in tactical defense and have frequent, effective communication with their board and shareholders.
  • Buy time. At a minimum, management should send a clear (and immediate) signal that it is listening to the activist and trying to act in the best interest of all shareholders. In some situations, management might need to go further and implement legal tactics to stave off a shareholder vote until the right strategic alternative can be found. Either way, it must create enough breathing room to evaluate the options and pursue the best one.
  • Analyze the activist’s value-creation plan, item by item. Management needs to fully digest the activist’s proposal—and be prepared to respond with the same, if not a greater, level of detail and analysis.
  • Push for complete transparency. Investors must be able to trust management in order to support management. While it is tempting to present a rosy story to investors and ignore the challenges the business faces, it is far better to opt for candor. For example, management should acknowledge performance gaps and articulate the specific initiatives or investments that will help address them.
  • Be on high alert. Increasingly, activists seem willing to negotiate behind the scenes and maintain a public posture of respect for management. Still, management needs to remember that things can quickly turn ugly. Trian Partners publicly criticized DuPont CEO Ellen Kullman for selling stock. Third Point revealed that Yahoo! CEO Scott Thompson falsified part of his résumé, which led to his dismissal. Every move should be made with the understanding that it will be examined under the public microscope.

Companies must remember that every activist campaign begins with the end point in mind. Activists plan out the time and capital investment required for a full proxy fight in order to achieve their aims. As JANA Partners’ Barry Rosenstein once warned, “You’re stuck with us. If we don’t succeed this year, we’ll be back next year.” In a contest, both sides are negotiating on the basis of would-be shareholder votes: which argument would sway shareholder support in the event the fight played out to its natural conclusion? Although in reality only a small proportion of the contests get that far, management teams must be prepared for the possibility.

Activist investors will no doubt wield even more muscle in the years to come: directly, in their campaigns, and indirectly, in the preemptive actions they force out of potential targets. Companies would be well advised to be on guard in the new era of shareholder activism. They need to assess their businesses from the activist’s point of view—with the same level of stringency—and to engage in strategic defense if an activist comes knocking. Ultimately, this is the best way to fulfill their responsibility of delivering maximum value to shareholders.

Preparedness and Response

The more that activism becomes a fixture on the corporate landscape, the more acutely companies need to be proactive about its imminence. When activists strike, they have already formulated a plan they believe will generate the most value. But management is usually in reactive mode—unprepared to set the terms of the debate and without a plan that might generate as much value as, or more value than, the activists’.

BCG’s view of a proactive defense can be summed up as “do it yourself activism”—an approach in which company leaders borrow from the activists’ playbook and scrutinize the company’s balance sheet, portfolio, and governance, and make needed changes preemptively. (See “Do It Yourself Activism,” BCG article, February 2014.) Arguably, this is the most critical stage. As one C-level executive who was victimized by an activist told us, “Once the activist is in, it’s already over.” In other words, an aggressive activist’s move can change the company irreparably.

Our experience advising companies through some of the most high-profile contests of the past five years has shown us that when an activist’s campaign becomes imminent or actually occurs, the company’s response must be firmly grounded in data, facts, and logic. It’s not easy for executives and boards to remain coolheaded as the headlines emerge on the front pages of the New York Times and the Wall Street Journal. But ignoring the activist’s demands, failing to evaluate them objectively, or simply being defensive does companies no good. Having inside information constitutes a big advantage.

For boards, which have a fiduciary duty to represent the company’s owners, these analytics can be indispensable. Board members can evaluate the various scenarios with the assumptions laid bare and decide for themselves which set of facts best predict company performance. With such analysis and scenarios in hand, boards can make more objective, informed decisions about the best course of action.

The Elements of a Strategic Response

Traditionally in activist response situations, the advice that senior managers and board members get amounts to what we call a tactical defense: obtaining a fairness opinion of the company’s fundamental value, assessing legal and governance options, and working the public relations machine. But that’s not enough. We advise companies to engage further, in what we call a strategic response: mapping alternative future states of the company that could generate even more value than what the activist thesis proposes. To create a strategic response, companies should carry out one or more of the following actions.

Build a pressure-tested “momentum case." Define how the company would perform if it grew with the market (that is, maintained its market share) and sustained existing margins in each of its businesses, regions, and channels.5 With no other moves, would the company be a top-quartile TSR performer? A bottom-quartile performer? Or something in between? We believe this exercise is a critical step to establishing a logical foundation for the shareholder value outlook.

Rapidly evaluate strategic alternatives. Management should fully explore its corporate strategic options and then assess the future value of each one. These options might include M&A or divestitures, significant organic investments, cost cuts, alternative capital strategies, or transformational programs such as a pricing-strategy or site-network redesign. By rapidly assessing each option and understanding the value it creates and the risk it entails over a given time period, management can effectively respond to the activist through a value-maximizing strategy, along with the appropriate facts to convey to investors.

Devise an appropriate “war plan.” Every management team comes to the investor community with a different level of credibility. Reputations should be taken into account in formulating the response to the activist. A management team with strong support from its top institutional investors (or, outside the U.S., from its local governing regime or regulators) can afford to issue a stronger response. One with a weak reputation or mediocre track record of delivering shareholder value may be forced to concede a good deal to the activist, regardless of how compelling its alternatives are.

Which response strategy a company adopts will depend on the imminence of the activist’s moves and the capabilities of the specific activist. (See "Defense Strategies: Contrasting Examples.")

Notes:

5.
We believe that this approach should be part of any effort to develop corporate strategy and boost shareholder value. In most activist situations, the time frame is compressed substantially and the stakes are obviously much higher.

Authors and Acknowledgments

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Acknowledgments

The authors would like to thank their BCG colleagues Mariya Akmal, Ruba Borno, Hady Farag, Mark Lubkeman, Tim Nolan, David Taube, and Decker Walker for their contributions to this report, and Jan Koch for her writing assistance. Thanks also go to Katherine Andrews, Gary Callahan, Kim Friedman, Abby Garland, Sharon Slodki, and Sara Strassenreiter for their contributions to editing, design, and production.

DEFENSE STRATEGIES CONTRASTING EXAMPLES

Circumstances should dictate the approach and tenor of the response to an activist. The examples below illustrate how different successful defense strategies to two different types of challenges can be.

Constructive and Amenable. In early 2012, in response to an activist challenge, a large software company evaluated a variety of strategic options (including a margin program, large-scale M&A, aggressive investment in innovation, and a capital return play) to determine the optimal path to shareholder value creation. Although time-sensitive, the discussions with the activist didn’t threaten an immediate proxy battle. BCG assessed the company’s theoretical optimum as well as its risk-return trade-offs. Discussions with the activist were largely constructive; the path forward, which included a mix of the strategic options, was welcomed by the market; and by late 2012, the stock was outperforming its peers and the activist had sold off more than 50 percent of its stake. Today, the activist has fully exited its position.

Sudden and Hostile. In 2014, a biopharma company faced a hostile threat. BCG helped management rapidly define a strategic alternative to the activist’s proposal, including a cost-out program that would have reduced selling, general, and administrative expenses by about 15 percent. Typically, activist proposals feature similar promises based on outside-in estimates and benchmarking. In this case, the plan specified exactly which expense categories would be reduced. It was also backed by a comprehensive change-management program designed to earn buy-in from leaders throughout the organization. Supported by smart legal and other tactical defensive measures, the plan helped management buy time with investors and ultimately helped the company fend off the attack.

Winning Moves in the Age of Shareholder Activism

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