一篇比较基础且配合了案例分析的文章：The Activism of Carl Icahn and Bill Ackman

https://corpgov.law.harvard.edu/2014/05/29/the-activism-of-carl-icahn-and-bill-ackman/#

不同类别的fund

A few words on hedge funds

While there is no generally agreed-upon definition of a hedge fund (a Securities and Exchange Commission roundtable discussion on hedge funds considered 14 different definitions) hedge funds are usually identified by four characteristics:

- they are pooled, privately organized investment vehicles;

- they are administered by professional investment managers with performance-based compensation and significant investments in the fund;

- they cater to a small number of sophisticated investors and are not generally readily available to the retail investment market; and

- they mostly operate outside of securities regulation and registration requirements.

The typical hedge fund is a partnership entity managed by a general partner; the investors are limited partners who have little or no say in the hedge fund’s business. Hedge fund managers have strong incentives to generate positive returns because their pay depends primarily on performance. A typical hedge fund charges its investors a fixed annual fee of 2 percent of its assets plus a 20 percent performance fee based on the fund’s annual return. Although managers of other institutions can be awarded bonus compensation based in part on their performance, their incentives tend to be more muted because they capture a much smaller percentage of any returns and the Investment Company Act of 1940 limits performance fees.

Unlike mutual funds, which are generally required by law to hold diversified portfolios and sell securities within one day to satisfy investor redemptions, hedge funds are not subject to diversification and prudent investment requirements. Hedge funds can also allocate large portions of their capital to a few target companies, and they may require that investors “lock-up” their funds for a period of two years or longer. Moreover, because hedge funds do not fall under the Investment Company Act regulation, they are permitted to trade on margin and engage in derivatives trading, strategies that are not available to institutions such as mutual and pension funds. As a result, hedge funds have greater flexibility in trading than other institutions.

Hedge funds also differ from pension funds and many other institutional investors because they are generally not subject to heightened fiduciary standards, such as those embodied in ERISA. Another difference is that, unlike pension funds, hedge funds are not subject to state or local influence or political control. The majority of hedge fund investors tend to be wealthy individuals and large institutions, and hedge funds typically raise capital through private offerings that are not subject to extensive disclosure requirements. Although hedge fund managers are bound by antifraud provisions, funds are not otherwise subject to more extensive regulation. Finally, hedge fund managers typically suffer fewer conflicts of interest than managers at other institutions. For example, unlike mutual funds that are affiliated with large financial institutions, hedge funds do not sell products to the companies whose shares they hold.

Hedge fund managers have powerful and independent incentives to generate positive returns. Although many private equity or venture capital funds also have these characteristics, they are distinguished from hedge funds because of their focus on particular private capital markets. Private equity investors typically target private companies or going private transactions, and they acquire larger percentage ownership stakes than activist hedge funds. Venture capital investors typically target private companies exclusively, with a view to selling the company, merging, or going public, which means they invest at much earlier stages than both private equity and activist hedge funds. Nevertheless, the lines between these investors are often blurred, particularly between some private equity firms and activist hedge funds that pursue multiple strategies.

关于activism

Does activism generate value?

There is substantial debate about the extent to which activist events affect target company value. A study by Alon Brav, Wei Jiang, Randall S. Thomas, and Frank Partnoy documents a 7 percent abnormal stock return around the filing of a Schedule 13D (an indication of an activist fund’s investment in a target company), suggesting that market participants view hedge fund activism as value creating. Most important, the same study finds that the favorable effect on stock price does not reverse within the following year. According to these findings, it appears that promising returns depend on what the activists demand. Activism that targets the sale of the company or changes in business strategy, such as refocusing and spinning-off noncore assets, is associated with the largest positive abnormal partial effects. In contrast, there is little evidence of a favorable market reaction to capital structure-related activism—including debt restructuring, recapitalization, dividends, and share repurchases— or to governance-related activism—including attempts to rescind takeover defenses, oust CEOs, enhance board independence, and curtail CEO compensation.

Perceived corporate governance failures at target companies that attract the attention of activist funds

Specifically, hedge fund activism is more likely when an entrenched board fails to:

- establish a clear corporate strategy;

- replace a CEO in a timely manner, impeding the execution of the corporate strategy;

- seek alternative uses for the company’s valuable noncore assets (for example, through divestiture) or fails to maximize shareholder value when taking the company private;

- distribute “sufficient” levels of cash to shareholders through dividend payouts and share repurchase programs.

Activist tactics

While activists generally propose a wide variety of changes to targeted companies, approximately 45 percent seek changes in corporate governance and the remaining 55 percent pursue non-board-related proposals.

The Activism of Icahn Enterprises

Carl Icahn is chairman of Icahn Enterprises, a diversified holding company which trades on the NASDAQ and has a market capitalization of $12 billion.

Icahn recently stated that “[t]here are lots of good CEOs in this country, but the management in many companies leaves a lot to be desired. What we do is bring accountability to these underperforming CEOs when we get elected to the boards.” Icahn’s statement highlights one of his main activist strategies: identifying companies with perceived managerial deficiencies and attempting to gain a board seat(s) to discipline boards that fail to remove poorly performing managers.

The case studies reinforce his image as an activist investor who buys large stakes in companies he believes to be undervalued and then seeks to change the business. The studies reveal that Icahn’s primary activist tactic is to identify boards whose directors are unable to deftly navigate fundamental issues with corporate strategy, perhaps due to a failed acquisition (Yahoo!) or multiple strategic setbacks (Netflix, Dell). In addition, Icahn targets boards whose directors do not adequately identify profitable uses of the company’s assets, whether the assets are patent portfolios (Motorola), cash reserves (Apple), or a division (eBay). His recent effort at eBay to target the corporate governance practices of a Silicon Valley company is new and might signal an emerging trend in hedge fund activism.

Icahn actively uses various media channels to advance his agenda. He frequently issues open letters to the shareholders of his targets, appears on television, and makes statements via social media and his Shareholders’ Square Table website. As a result, corporate boards should have an integrated, cross-platform response to the various types of public messages that activist fund managers may employ to reach a diverse shareholder base and communicate their message to market participants in general.

The Activism of Pershing Square

William “Bill” Ackman is CEO of Pershing Square Capital Management, which, according to a Form 13F filed December 31, 2013, has $8.23 billion in assets under management.

Ackman has a reputation as a brazen activist investor who buys large stakes in companies he believes are undervalued. The case studies—notably, his joint hostile takeover effort with Valeant Pharmaceuticals at Allergan—reinforce that image and highlight several differences between his activist approach and that of Icahn.

In particular, Ackman’s primary tactic appears to be his hands-on efforts to completely transform a company, often through substantial changes in both board representation and top management, as evidenced by his actions at J.C. Penney, Canadian Pacific Railways, and Air Products and Chemicals. Similar to Icahn, Ackman targets boards he feels have not adequately identified profitable uses of the company’s assets, such as his efforts at Target to revamp the company’s credit card holdings and real estate assets.

In contrast to Icahn, Ackman is perhaps best known for his high-profile campaigns to bring down his target companies through detailed and often overwhelming arguments designed to move a target’s share price. The MBIA and Herbalife cases demonstrate how Ackman targets companies that he believes are overvalued given their current economic fundamentals, and the extreme measures he will take to make the case against the target company’s valuation. His heavily publicized presentations, often held with little advance notice, highlight the need for boards of directors to have the ability to quickly respond to such an attack.