In the 2009 results presentation to analysts, the chief executive of ZPT, a global internet communications company, announced an excellent set of results to the waiting audience. Chief executive Clive Xu announced that, compared to 2008, sales had increased by 50%, profi ts by 100% and total assets by 80%. The dividend was to be doubled from the previous year. He also announced that based on their outstanding performance, the executive directors would be paid large bonuses in line with their contracts. His own bonus as chief executive would be $20 million. When one of the analysts asked if the bonus was excessive, Mr Xu reminded the audience that the share price had risen 45% over the course of the year because of his efforts in skilfully guiding the company. He said that he expected the share price to rise further on the results announcement, which it duly did. Because the results exceeded market expectation, the share price rose another 25% to $52. Three months later, Clive Xu called a press conference to announce a restatement of the 2009 results. This was necessary, he said, because of some ‘regrettable accounting errors’. This followed a meeting between ZPT and the legal authorities who were investigating a possible fraud at ZPT. He disclosed that in fact the fi gures for 2009 were increases of 10% for sales, 20% for profi ts and 15% for total assets which were all signifi cantly below market expectations. The proposed dividend would now only be a modest 10% more than last year. He said that he expected a market reaction to the restatement but hoped that it would only be a short-term effect. The fi rst questioner from the audience asked why the auditors had not spotted and corrected the fundamental accounting errors and the second questioner asked whether such a disparity between initial and restated results was due to fraud rather than ‘accounting errors’. When a journalist asked Clive Xu if he intended to pay back the $20 million bonus that had been based on the previous results, Mr Xu said he did not. The share price fell dramatically upon the restatement announcement and, because ZPT was such a large company, it made headlines in the business pages in many countries. Later that month, the company announced that following an internal investigation, there would be further restatements, all dramatically downwards, for the years 2006 and 2007. This caused another mass selling of ZPT shares resulting in a fi nal share value the following day of $1. This represented a loss of shareholder value of $12 billion from the peak share price. Clive Xu resigned and the government regulator for business ordered an investigation into what had happened at ZPT. The shares were suspended by the stock exchange. A month later, having failed to gain protection from its creditors in the courts, ZPT was declared bankrupt. Nothing was paid out to shareholders whilst suppliers received a fraction of the amounts due to them. Some non-current assets were acquired by competitors but all of ZPT’s 54,000 employees lost their jobs, mostly with little or no termination payment. Because the ZPT employees’ pension fund was not protected from creditors, the value of that was also severely reduced to pay debts which meant that employees with many years of service would have a greatly reduced pension to rely on in old age. The government investigation found that ZPT had been maintaining false accounting records for several years. This was done by developing an overly-complicated company structure that contained a network of international branches and a business model that was diffi cult to understand. Whereas ZPT had begun as a simple telecommunications company, Clive Xu had increased the complexity of the company so that he could ‘hide’ losses and mis-report profi ts. In the company’s reporting, he also substantially overestimated the value of future customer supply contracts. The investigation also found a number of signifi cant internal control defi ciencies including no effective management oversight of the external reporting process and a disregard of the relevant accounting standards. In addition to Mr Xu, several other directors were complicit in the activities although Shazia Lo, a senior qualified accountant working for the fi nancial director, had been unhappy about the situation for some time. She had approached the fi nance director with her concerns but having failed to get the answers she felt she needed, had threatened to tell the press that future customer supply contract values had been intentionally and materially overstated (the change in fair value would have had a profit impact). When her threat came to the attention of the board, she was intimidated in the hope that she would keep quiet. She fi nally accepted a large personal bonus in exchange for her silence in late 2008. The investigation later found that Shazia Lo had been continually instructed, against her judgement, to report fi gures she knew to be grossly optimistic. When she was offered the large personal bonus in exchange for her silence, she accepted it because she needed the money to meet several expenses related to her mother who was suffering a long-term illness and for whom no state health care was available. The money was used to pay for a lifesaving operation for her mother and also to rehouse her in a more healthy environment. Shazia Lo made no personal fi nancial gain from the bonus at all (the money was all used to help her mother) but her behaviour was widely reported and criticised in the press after the collapse of the company. The investigation found that the auditor, JJC partnership (one of the largest in the country), had had its independence compromised by a large audit fee but also through receiving consultancy income from ZPT worth several times the audit fee. Because ZPT was such an important client for JJC, it had many resources and jobs entirely committed to the ZPT account. JJC had, it was found, knowingly signed off inaccurate accounts in order to protect the management of ZPT and their own senior partners engaged with the ZPT account. After the investigation, JJC’s other clients gradually changed auditor, not wanting to be seen to have any connection with JJC. Accordingly, JJC’s audit business has since closed down. This caused signifi cant disturbance and upheaval in the audit industry. Because ZPT was regarded for many years as a high performing company in a growing market, many institutional investors had increased the number of ZPT shares in their investment portfolios. When the share price lost its value, it meant that the overall value of their funds was reduced and some individual shareholders demanded to know why the institutional investors had not intervened sooner to either fi nd out what was really going on in ZPT or divest ZPT shares. Some were especially angry that even after the fi rst restatement was announced, the institutional investors did not make any attempt to intervene. One small investor said he wanted to see more ‘shareholder activism’, especially among the large institutional investors. Some time later, Mr Xu argued that one of the reasons for the development of the complex ZPT business model was that it was thought to be necessary to manage the many risks that ZPT faced in its complex and turbulent business environment. He said that a multiplicity of overseas offi ces was necessary to address exchange rate risks, a belief challenged by some observers who said it was just to enable the ZPT board to make their internal controls and risk management less transparent.
(a) Because of their large shareholdings, institutional investors are sometimes able to intervene directly in the companies they hold shares in.Required:(i) Explain the factors that might lead institutional investors to attempt to intervene directly in the management of a company; (6 marks)(ii) Construct the case for institutional investors attempting to intervene in ZPT after the fi rst results restatement was announced. (6 marks)
参考答案：
(i) Institutional investor intervention Six reasons are typically cited as potential grounds for investor intervention. Whilst it would be rare to act on the basis of one factor (unless it was particularly unfavourable), an accumulation of factors may have such an effect. Furthermore, institutional investors have a moral duty to use their power to monitor the companies they invest in for the good of all investors, as recognised in most codes of corporate governance. Institutional investors have the expertise at their disposal to understand the complexities of managing large corporations. As such, they can take a slightly detached view of the business and offer advice where appropriate. The typical reasons for intervention are cited below. Concerns about strategy, especially when, in terms of long-term investor value, the strategy is likely to be excessively risky or, conversely, unambitious in terms of return on investment. The strategy determines the long-term value of an investment and so is very important to shareholders. Poor or deteriorating performance, usually over a period of time, although a severe deterioration over a shorter period might also trigger intervention, especially if the reasons for the poor performance have not been adequately explained in the company’s reporting. Poor non-executive performance. It is particularly concerning when non-executives do not, for whatever reason, balance the executive board and provide the input necessary to reassure markets. Their contributions should always be seen to be effective. This is especially important when investors feel that the executive board needs to be carefully monitored or constrained, perhaps because one or another of the factors mentioned in this answer has become an issue. Major internal control failures. These are a clear sign of the loss of control by senior management over the operation of the business. These might refer, for example, to health and safety, quality, budgetary control or IT projects. In the case of ZPT, there were clear issues over the control of IC systems for generating fi nancial reporting data. Compliance failures, especially with statutory regulations or corporate governance codes. Legal non-compliance is always a serious matter and under comply-or-explain, all matters of code non-compliance must also be explained. Such explanations may or may not be acceptable to shareholders. Excessive directors’ remuneration or defective remuneration policy. Often an indicator of executive greed, excessive board salaries are also likely to be an indicator of an ineffective remunerations committee which is usually a non-executive issue. Whilst the absolute monetary value of executive rewards are important, it is usually more important to ensure that they are highly aligned with shareholder interests (to minimise agency costs). Poor CSR or ethical performance, or lack of social responsibility. Showing a lack of CSR can be important in terms of the company’s long-term reputation and also its vulnerability to certain social and environmental risks. [Tutorial note: the study texts approach this slightly differently.] (ii) Case for intervention After the fi rst restatement, it was evident that three of the reasons for interventions were already present. Whilst one of these perhaps need not have triggered an intervention alone, the number of factors makes a strong case for an urgent meeting between the major investors and the ZPT board, especially Mr Xu. Poor performance. The restated results were ‘all signifi cantly below market expectations’. Whilst this need not in itself have triggered an institutional investor intervention, the fact that the real results were only made public after an initial results announcement is unfortunate. The obvious question to ask the ZPT board is why the initial results were mis-stated and why they had to be corrected as this points to a complete lack of controls within the business. A set of results well below market expectations always needs to be explained to shareholders. Internal control and potential compliance failures. There is ample evidence to suggest that internal controls in ZPT were very defi cient, especially (and crucially) those internal controls over external fi nancial reporting. The case mentions, ‘no effective management oversight of the external reporting process and a disregard of the relevant accounting standards’, both of which are very serious allegations. Linked to this, the investors need an urgent clarifi cation of the legal allegations of fraud, especially in the light of the downward restatement of the results. Any suggestion of compliance failure is concerning but fraud (down to intent rather than incompetence) is always serious as far as investors are concerned. Excessive remuneration in the form of the $B0 million bonus. It is likely that this bonus was excessive even had the initial results been accurate, but after the restatement, the scale of the bonus was evidently indefensible as it was based on false fi gures. The fact that the chief executive is refusing to repay the bonus implies a lack of integrity, adding weight to the belief that there may be some underlying dishonesty. Furthermore, although the investors thought it excessive, the case describes this as within the terms of Mr Xu’s contract. A closer scrutiny of remunerations policy (and therefore non-executive effectiveness) would be appropriate.