Just 10 days ahead of the most important shareholder vote of his
life, Walt Disney Co. Chairman and Chief Executive Michael D.
Eisner faced an ordeal that awaits many of his peers in the
future. Along with three fellow Disney directors and his chief
financial officer, he subjected himself to an hour of tough
questioning in a Feb. 23 conference call with more than 200
institutional investors from pension and mutual funds that own
some 30% of Disney stock.
Eisner didn't have control of the agenda, as he does during
traditional earnings conference calls or annual meetings. This
time the microphone was firmly in the hands of Gregory P. Taxin, a
former investment banker who runs Glass, Lewis & Co., a small
advisory firm that helps institutions decide how to vote in
corporate elections. Taxin asked questions that big investors
submitted, mostly by e-mail, before and during the call. And
nobody was pulling any punches. Why was Eisner both chairman of
the board and CEO, they wanted to know? Wasn't his 2002 pay of $1
million in cash and $5 million in stock too much? And on whose
authority had he decided to spurn a takeover proposal from Comcast
Corp. before even knowing how rich it could be? Within days,
several big institutions announced they would withhold their votes
to reelect Eisner to the board.
These calls are the latest challenge to CEO power. They're driven
by rising shareholder concerns about corporate governance and new
or pending regulations. The calls can quickly crystallize
shareholder opinion, churn up market-moving information, and shift
battles for corporate control. And they're giving dissidents the
chance to hammer home their message directly to other
shareholders, rather like a Presidential hopeful challenging an
incumbent in a debate. "The world of corporate governance has
become much more like the world of politics," says Patrick McGurn,
senior counsel of Institutional Shareholder Services Inc., one of
two firms that currently hosts such calls.
The conferences are designed for professionals. Glass Lewis
invites only its clients and financial reporters, some of whom
issued stories during the Eisner call. ISS, however, allows anyone
who registers in advance to listen. Individual investors can read
transcripts online from both services within 48 hours. Securities
lawyers say that the calls are open enough to comply with
Securities & Exchange Commission rules requiring the fair
disclosure to a wide audience of market-moving information.
ISS and Glass Lewis held the first shareholder calls in February.
They expect to stage a dozen more this year, depending on how many
proxy battles develop. The call with Eisner was the fourth of its
kind and the first in which a sitting CEO submitted to a grilling
by sophisticated investors from around the world. Two weeks
earlier, Eisner adversary Roy Disney and a business partner had
gone on a Glass Lewis call with a view to forcing Eisner out of
his job by campaigning for a no-confidence vote at Disney's Mar. 3
annual meeting.
SHARPER TEETH. In
early February, dissident shareholders who were trying to stop
executives of MONY Group Inc. from closing a deal to sell out to
AXA Financial Inc. went on calls arranged by ISS and Glass Lewis.
ISS alone attracted 231 institutions holding 28% of the stock.
Executives, including Chairman and CEO Michael I. Roth, refused to
participate in calls by either firm. They said in a statement they
preferred "one-on-one investor meetings" and would be holding
their own conference call the same week to discuss earnings and to
"update shareholders about the transaction." All the same, later
the deal was delayed -- and improved. MONY execs offered to
surrender enough from the golden parachutes they will be entitled
to in a sale to pay investors an extra 10 cents-a-share special
dividend.
ISS and Glass Lewis had both planned conferences with Oracle Corp.
executives before that company's bid for PeopleSoft Inc. was
opposed by the Justice Dept. Forecasts Nell Minow, a corporate
governance activist and editor with The Corporate Library LLC:
"This is going to become an established institution."
Powerful forces are working in favor of that prediction coming
true. Money managers are under pressure from regulators and
clients to exercise their votes to ensure that companies are run
for the benefit of their shareholders. Last year, the SEC adopted
rules requiring money managers to spell out their policies for
deciding how to vote and then keep track of those votes. This
summer, mutual funds will have to begin disclosing publicly how
they voted in the past year. Now the agency is raising the stakes
further by moving toward giving direct no-confidence ballots --
such as those in the Disney contest -- more teeth. Under a
proposed rule, if more than 35% of votes are withheld from
incumbent directors, major shareholders could put their own
nominees on company ballots the following year.
Institutions like the shareholder calls. Small ones that don't
merit a personal call from a CEO get to submit their questions,
while big ones like to ask hard questions anonymously through the
moderators so they don't hurt their relationships with company
management. The institutions also learn from one another's
questions. Cynthia L. Richson, corporate governance officer at the
$59 billion Ohio Public Employees Retirement System, says
listening to the Eisner call helped her sharpen her questions for
his visit to her offices three days later. "It helped me get what
I really wanted to hear about, as opposed to his canned
speech,"she says. Her fund voted to withhold its 4.7 million
shares from Eisner's reelection.
Other experts doubt that the calls will shift the balance of
corporate power much. They are as likely to expose the dissidents
with flimsy arguments as they are to help the causes of the
justified ones, argues John C. Wilcox, vice-chairman of Georgeson
Shareholder Communications, the proxy solicitor representing
Eisner and the Disney directors. Wilcox says that good corporate
executives will soon master the form even though they don't
control the microphones. He argues that Eisner and the Disney
directors used their call to advantage by circumventing the news
media to describe reforms that they have already made. Disney
stock climbed 2% during the call.
Still, Eisner handed his opponents a cudgel by revealing that he
had been tipped off to the Comcast bid ahead of time and had the
board of directors' backing to reject it immediately. Comcast used
the revelation to again criticize Eisner and Disney directors for
not being open to ways to increase shareholder wealth. "Glass
Lewis is now a must-listen-to," says Carl B. Schecter, head of
risk arbitrage at Nomura Securities International Inc. "If these
calls are going to be market-moving forums, that will give them
more power."
The calls mark a major advance in the way big shareholders can
talk among themselves and set their own agenda when dealing with
executives. For most of the 20th century, says activist Minow,
efforts to improve corporate governance were handicapped by "the
inability of shareholders to communicate with each other." Then,
in 1992, the SEC opened the door by relaxing restrictions
originally designed to keep big stakeholders from secretly ganging
up to take control of a company. The change encouraged some ad hoc
meetings between investors who knew one another and wanted to
complain about specific companies. But such meetings lacked the
scale and financial backing that ISS and Glass Lewis bring. They
pay upwards of $12,000 in telecom fees to link their subscribing
clients around the globe; each participant costs them an average
of about $1 a minute.
Indeed, the firms are stepping into roles that only big investment
banks used to play by setting up meetings between their corporate
banking clients and institutional investors. But the banks were
working mostly for the companies and not for the investors. Says
consultant Gary Lutin, an investment banker whose Lutin & Co.
advises dissidents and Glass Lewis: "You're seeing a shift toward
investor-controlled exchanges of information from
management-controlled." In other words, the message here is the
medium.