The Takeover Controversy: Analysis and Evidence Lähde PDF

THE TAKEOVER CONTROVERSY:
ANALYSIS AND EVIDENCE
Michael C. Jensen
Harvard Business School
MJensen@hbs.edu
Abstract
The market for corporate control is fundamentally changing the corporate
landscape. Transactions in this market in 1985 were at a record level of $180 billion. These
transactions involve takeovers, mergers, and leveraged buyouts. Closely associated are
corporate restructurings involving divestitures, spinoffs, and large stock repurchases for
cash and debt.
The changes associated with these control transactions are causing considerable
controversy. Some argue that takeovers are damaging to the morale and productivity of
organizations and are therefore damaging to the economy. Others argue that takeovers
represent productive entrepreneurial activity that improves the control and management of
assets and helps move assets to more productive uses.
The controversy has been accompanied by strong pressure on regulators and
legislatures to enact restrictions that would curb activity in the market for corporate control.
In the spring of 1985 there were over 20 bills under consideration in Congress that proposed
new restrictions on takeovers. Within the past several years the legislatures of New York,
New Jersey, Maryland, Pennsylvania, Connecticut, Illinois, Kentucky, and Michigan has
passed antitakeover laws. The Federal Reserve Board entered the fray early in 1986 when it
issued its controversial new interpretation of margin rules that restricts the use of debt in
society.
This paper analyzes the controversy surrounding takeovers and provides both theory
and evidence to explain the central phenomena at issue. The paper is organized as follows.
Section 2 contains basic background analysis of the forces operating in the market for
corporate control -- analysis which provides an understanding of the conflicts and issues
surrounding takeovers and the effects of activities in this market. Section 3 discusses the
conflict between managers and shareholders over the payout of free cash flow and how
takeovers represent both a symptom and a resolution of the conflict. Sections 4, 5, and 6
discuss the relatively new phenomena of, respectively, junk-bond financing, the use of
golden parachutes, and the practice of greenmail. Section 7 analyzes the problems the
Delaware court is having in dealing with the conflicts that arise over control issues and its
confused application of the business judgment rule to these cases.
2
The following topics are discussed:

• The reasons for takeovers and mergers in the petroleum industry and why they
increase efficiency and thereby promote the national interest.
• The role of debt in bonding management’s promises to pay out future cash flows, to
reduce costs, and to reduce investments in low-return projects.
• The role of high-yield debt (junk bonds) in helping to eliminate mere size as a takeover
deterrent.
• The effects of takeovers on the equity markets and claims that managers are pressured
to behave myopically.
• The effects of antitakeover measures such as poison pills.
• The misunderstandings of the important role that “golden parachutes” play in reducing
the conflicts of interests associated with takeovers and the valuable function they serve in
alleviating some of the costs and uncertainty facing managers.
• The damaging effects of the Delaware court decision in Unocal vs. Mesa that allowed
Unocal to make a self-tender offer that excluded its largest shareholder (reverse greenmail).
• The problems the courts are facing in applying the model of the corporation subsumed
under the traditional business judgment rule to the conflicts of interest involved in corporate
controversies.
© Copyright 2006. Allan Scherr, Michael C. Jensen. All rights reserved
Midland Corporate Finance Journal, Volume 4, No. 2, Summer 1986
You may redistribute this document freely, but please do not post the electronic file on the web. I
welcome web links to this document at http://papers.ssrn.com/abstract=173452. I revise my papers
regularly, and providing a link to the original ensures that readers will receive the most recent
version. Thank you, Michael C. Jensen
THE TAKEOVER CONTROVERSY:
ANALYSIS AND EVIDENCE
MICHAEL C. JENSEN1
Midland Corporate Finance Journal, Volume 4, No. 2, Summer 1986
Introduction
The market for corporate control is fundamentally changing the corporate
landscape. Transactions in this market in 1985 were at a record level of $180 billion, 47
percent above the $122 billion in 1984. The purchase prices in 36 of the 3,000 deals
exceeded a billion dollars in 1985, compared with 18 in 1984.2 These transactions
involve takeovers, mergers, and leveraged buyouts. Closely associated are corporate
restructurings involving divestitures, spinoffs, and large stock repurchases for cash and
debt.
The changes associated with these control transactions are causing considerable
controversy. Some argue that takeovers are damaging to the morale and productivity of
organizations and therefore damaging to the economy. Others argue that takeovers
represent productive entrepreneurial activity that improves the control and management
of assets and helps move assets to more productive uses.
* This article is a somewhat shortened version of Michael C. Jensen’s “The Takeover Controversy:
Analysis and Evidence,” which will appear in the forthcoming volume, Takeovers and Contests for
Corporate Control (Oxford University Press, 1987), edited by John Coffee, Louis Lowenstein, and Susan
Rose-Ackerman. It is printed here with permission of the publisher.
1
Michael C. Jensen holds a joint appointment as Professor of Business Administration, Harvard Business
School, and LaClare Professor of Finance and Business Administration and Director of the Managerial
Economics Research Center, University of Rochester Graduate School of Management. This research is
supported by the Division of Research, Harvard Business School, and the Managerial Economics Research
Center, University of Rochester.
2
W. T. Grimm, Mergerstat Review (1985).
Michael C. Jensen 2 August 20, 1986
The controversy has been accompanied by strong pressure on regulators and
legislatures to enact restrictions that would curb activity in the market for corporate
control. In the spring of 1985 there were over 20 bills under consideration in Congress
that proposed new restrictions on takeovers. Within the past several years the legislatures
of New York, New Jersey, Maryland, Pennsylvania, Connecticut, Illinois, Kentucky, and
Michigan have passed anti-takeover laws. The Federal Reserve Board entered the fray
early in 1986 when it issued its controversial new interpretation of margin rules, which
restricts the use of debt in takeovers.
Through dozens of studies, leading financial economists have accumulated
considerable evidence and knowledge on the effects of the takeover market. Since most
of the results of the work completed prior to 1984 are well summarized elsewhere,3 I
focus here on current aspects of the controversy and new results. In a nutshell, the
previous work tells us the following:

• Takeovers benefit target shareholders--premiums in hostile offers historically exceed
30 percent on average, and in recent times have averaged about 50 percent.
• Acquiring-firm shareholders on average earn about 4 percent in hostile takeovers and
roughly zero in mergers.
• Takeovers do not waste credit or resources; they generate substantial gains--historically
8.4 percent of the total value of both companies. Recently the gains seem to have been
even larger.
• Actions by managers that eliminate or prevent offers or mergers are most suspect as
harmful to shareholders.
• Golden parachutes for top-level managers do not, on average, harm shareholders.
• The activities of takeover specialists such as Icahn, Posner, Steinberg, and Pickens, on
average, benefit shareholders.4
3
A detailed summary of this evidence is available in Michael C. Jensen and Richard S. Ruback, "The
Market for Corporate Control: The Scientific Evidence," Journal of Financial Economics, 11 (April 1983);
and in Michael C. Jensen, "Takeovers: Folklore and Science", Harvard Business Review
(November/December, 1984). See also Paul J. Halpern, “Empirical Estimates of the Amount and
Distribution of Gains to Companies in Mergers,” Journal of Business, V. 46, No. 4 (October, 1973) pp.
554-575.
4
Clifford G. Holderness and Dennis P. Sheehan, "Raiders or Saviors? The Evidence on Six Controversial
Investors," Journal of Financial Economics, 14 (December, 1985); and Wayne H. Mikkelson and Richard
• Takeover gains do not come from the creation of monopoly power.
This paper analyzes the controversy surrounding takeovers and provides both
theory and evidence to explain the central phenomena at issue. The paper is organized as
follows. Section 2 contains basic background analysis of the forces operating in the
market for corporate control—analysis which provides an understanding of the conflicts
and issues surrounding takeovers and the effects of activities in this market. Section 3
discusses the conflict between managers and shareholders over the payout of free cash
flow and how takeovers represent both a symptom of this conflict and a resolution of the
conflict. Section 4, 5, and 6 discuss the relatively new phenomena of, respectively, junk-
bond financing, the use of golden parachutes, and the practice of greenmail. Section 7
analyzes the problems the Delaware court is having in dealing with the conflicts that arise
over control issues and its confused application of the business judgment rule to these
cases.
The following topics are discussed:

• The reasons for takeovers and mergers in the petroleum industry and why they increase
efficiency and thereby promote the national interest.
• The role of debt in bonding management's promises to pay out future cash flows, to
reduce costs, and to reduce investments in low-return projects.
• The role of high-yield debt (junk bonds) in helping to eliminate mere size as a takeover
deterrent.
• The effects of takeovers on the equity markets and the claims that managers are
pressured to behave myopically.
• The effects of anti-takeover measures such as poison pills.
• The misunderstandings of the important role that "golden parachutes" play in reducing
the conflicts of interests associated with takeovers and the valuable function they serve in
alleviating some of the costs and uncertainty facing managers.
• The damaging effects of the Delaware court decision in Unocal v. Mesa that allowed
Unocal to make a self-tender that excluded its largest shareholder (reverse greenmail).
S. Ruback, "An Empirical Analysis of the Interfirm Equity Investment Process," Journal of Financial
Economics, 14 (December, 1985).
• The problems the courts are facing in applying the model of the corporation subsumed
under the traditional business judgment rule to the conflicts of interest involved in corporate
control controversies.
THE MARKET FOR CORPORATE CONTROL--BACKGROUND
The Benefits of Takeovers
The market for corporate control is creating large benefits for shareholders and for
the economy as a whole. The corporate control market generates these gains by
loosening control over vast amounts of resources and enabling them to move more
quickly to their highest-valued use. This is a healthy market in operation, on both the
takeover side and the divestiture side.
Gains to target firms. Total benefits created by the control market have been
huge, as reflected in gains of $40 billion to stockholders of acquired firms in 260 tender
offers alone in the period from January 1981 through May 1985.5 This figure does not
include the gains from other control transactions such as mergers, leveraged buyouts, or
divestitures. Nor does it include the gains from reorganizations such as those of Phillips,
Unocal, and others that have been motivated by takeover attempts. (The Phillips, Unocal
and ARCO reorganizations created gains of an additional $6.6 billion.) One study
estimates the total premiums received by shareholders of target firms to have been
approximately $75 billion in $239 billion of merger and acquisition deals in 1984 and
1985.6
Gains to bidding firms. The evidence on the returns to bidding firms is mixed.
The data indicate that prior to 1980 shareholders of bidding firms earned on average
about zero in mergers (which tend to be voluntary) and about 4 percent of their equity
5
As estimated by the Office of the Chief Economist of the SEC and provided to the author in private
communication.
6
John D. Paulis, “Corporate Restructuring, ‘Junk,’ and Leverage: Too Much or Too Little?” (Morgan
Stanley, February 1986).
value in tender offers (which tend to be hostile).7 These differences in returns are
associated with the form of payment rather than the form of the offer (tender offers tend
to be for cash and mergers tend to be for stock).8
Although there are measurement problems that make it difficult to estimate the
returns to bidders as precisely as the returns to targets,9 it appears the bargaining power of
target managers, coupled with competition among potential acquirers, grants much of the
acquisition benefits to selling shareholders. In addition, federal and state regulation of
tender offers appears to have strengthened the hand of target firms; premiums received by
target-firm shareholders increased substantially after introduction of such regulation.10
Causes of Current Takeover Activity
The current high level of takeover activity seems to be caused by a number of
factors:
• the relaxation of restrictions on mergers imposed by the antitrust laws;
• the withdrawal of resources from industries that are growing more slowly or that must
shrink;
• deregulation in the financial services, oil and gas, transportation, and broadcasting
markets that is bringing about a major restructuring of those industries;
• and improvements in takeover technology, including a larger supply of increasingly
sophisticated legal and financial advisors, and improvements in financing technology (for
example, the strip financing commonly used in leveraged buyouts and the original issuance
of high-yield non-investment-grade bonds).
7
See Jensen and Ruback [1983, Tables 1 and 2], cited earlier in note 4.
8
See Yen-Sheng Huang and Ralph A. Walkling, “Differences In Residuals Associated With Acquisition
Announcements: Payment, Acquisition Form, And Resistance Effects” (Manuscript, Georgia Institute of
Technology and Ohio State University, November 1985).
9
B. Espen Eckbo, "Do Acquiring Firms Gain From Merger?" (unpublished manuscript, University of
British Columbia, June, 1985). Eckbo concludes that the zero returns to U.S. bidding firms is due to
difficulties in measuring the gains to bidding firms when the bidder is substantially larger than the target
firm. In his sample the average Canadian bidder was approximately the same size as the average target
while the average U.S. bidder is approximately 8 times the size of the average Canadian target. See also
Jensen and Ruback [1983, pp. 18ff.], cited earlier in note 4.
10
See Gregg Jarrell and Michael Bradley, "The Economic Effects of Federal and State Regulation of Cash
Tender Offers," Journal of Law and Economics, 23 (1980), pp. 371-407.
Each of these factors has contributed to the increase in total takeover and
reorganization activity in recent times. Moreover, the first three factors (antitrust
relaxation, exit, and deregulation) are generally consistent with data showing the intensity
of takeover activity by industry. For example, the value of merger and acquisition
transactions by industry in the period 1981-1984 (see Table 1) indicates that acquisition
activity was highest in oil and gas, followed by banking and finance, insurance, food
processing, and mining and minerals. For comparison purposes, the last column of the
table presents data on industry size measured as a fraction of the total value of all firms.
All but two of the industries, retail and transportation, represent a larger fraction of total
takeover activity than their representation in the economy as a whole.
TABLE 1 Intensity of industry takeover activity as measured by the value of merger and
acquisition transactions in the period 1981-84 (as a percent of total takeover
Intensity of Industry transactions for which valuation data are publicly reported) compared to
Takeover Activity: industry size (as measured by the fraction of overall corporate market value).
1981-1984 ———————————————————————————————————
Percent Percent
of total of total
takeover corporate
Industry classification of seller activity* market value**
———————————————————————————————————
Oil and gas 26.3% 13.5%
Banking and finance 8.8 6.4
Insurance 5.9 2.9
Food processing 4.6 4.4
Mining and minerals 4.4 1.5

Conglomerate 4.4 3.2
Retail 3.6 5.2
Transportation 2.4 2.7
Leisure and entertainment 2.3 .9

Broadcasting 2.3 .7
Other 39.4 58.5
———————————————————————————————————
* Source: W. T. Grimm, Mergerstat Review (1984), p. 41.
** As of 12/31/84. Total value is measured as the sum of the market value of common
equity for 4,305 companies, including 1,501 companies on the NYSE, 724 companies on the
ASE plus 2,080 companies in the Over-The-Counter market. Source: The Media General
Financial Weekly, (December 31, 1984), p.17.
Many areas of the U.S. economy have been experiencing slowing growth and, in
some cases, even retrenchment--a phenomenon that has many causes, including
substantially increased competition from foreign firms. This has increased takeover
activity because takeovers play an important role in facilitating exit from an industry or
activity. Major changes in energy markets have required a radical restructuring of and
retrenchment in that industry; and, as discussed in detail below, takeovers have played an
important role in accomplishing these changes. Deregulation of the financial services
market is consistent with the high ranking in Table 1 of banking and finance and
insurance. Deregulation has also been important in the transportation and broadcasting
industries. Mining and minerals has been subject to many of the same forces impinging
on the energy industry, including the changes in the value of the dollar.
Takeovers Provide Competition for Top-Level Management Jobs
The market for corporate control is best viewed as a major component of the
managerial labor market. It is the arena in which alternative management teams compete
for the rights to manage corporate resources.11 Understanding this is crucial to
understanding much of the rhetoric about the effects of hostile takeovers.
Managers formerly protected from competition for their jobs by antitrust
constraints that prevented takeover of the nation's largest corporations are now facing a
more demanding environment and a more uncertain future.

The development of innovative financing vehicles, such as high-yield non-
investment-grade bonds (“junk” bonds), has removed size as a significant impediment to
competition in this market. Although they have not been widely used in takeovers yet,
these new financing techniques permit small firms to obtain resources for acquisition of
much larger firms by issuing claims on the value of the venture (that is, the target firm's
assets) just as in any other corporate investment activity. It is not surprising that many
executives of large corporations would like relief from this new competition for their
11
See Jensen and Ruback [1983], cited earlier in note 4.
jobs, but restricting the corporate control market is not the efficient way to handle the
problems caused by the increased uncertainty in their contracting environment.
Takeovers Provide External Control
The internal control mechanisms of corporations, which operate through the board
of directors, generally work well. On occasion, however, they break down. One
important source of protection for investors in these situations is the takeover market.
Other management teams that recognize an opportunity to reorganize or redeploy an
organization's assets and thereby create new value can bid for the control rights in the
takeover market. To be successful, such bids must be at a premium over current market
value. This gives investors an opportunity to realize part of the gains from reorganization
and redeployment of the assets.
The Market for Corporate Control Is an Agent for Change
Takeovers generally occur because changing technology or market conditions
require a major restructuring of corporate assets. In some cases, takeovers occur because
incumbent managers are incompetent. When the internal processes for change in large
corporations are too slow, costly and clumsy to bring about the required restructuring or
management change in an efficient way, the capital markets are doing so through the
operation of the market for corporate control. In this sense, the capital markets have been
responsible for bringing about substantial changes in corporate strategy in recent times.
Managers often have trouble abandoning strategies they have spent years devising
and implementing, even when those strategies no longer contribute to the organization's
survival. Such changes often require abandonment of major projects, relocation of
facilities, changes in managerial assignments, and closure or sale of facilities or divisions.

It is easier for new top-level managers with no ties with current employees or
communities to make such changes. Moreover, normal organizational resistance to
change commonly lessens significantly early in the reign of new top-level managers.
For example, the premium Carl Icahn was able to offer for TWA, and his victory over
Texas Air for the acquisition of TWA, were made possible in part by the willingness of
the TWA unions to negotiate favorable contract concessions with Icahn—concessions
that TWA itself was unable to win prior to the takeover conflict. Such organizational
factors that make change easier for newcomers, coupled with a fresh view of the
business, can be a major advantage to new managers after a takeover. On the other hand,
lack of detailed knowledge about the firm also poses risks for new managers and
increases the likelihood of mistakes.
Takeovers are particularly important in bringing about efficiencies when exit from
an activity is required. The oil industry is a good example. Changing market conditions
mandate a major restructuring of the petroleum industry, and none of this is the fault of
management. Management, however, must adjust to the new energy environment and
recognize that many old practices and strategies are no longer viable. It is particularly
hard for many managers to deal with the fact that some firms in the oil industry have to
go out of business. This is cheaper to accomplish through merger and the orderly
liquidation of marginal assets of the combined firms than by a slow, agonizing death in a
competitive struggle in an industry with overcapacity. The end of the latter process often
comes in the bankruptcy courts, with high losses and unnecessary destruction of valuable
parts of organizations that could be used productively by others.
In short, the external takeover market serves as a court of last resort that plays an
important role in (1) creating organizational change, (2) motivating the efficient use of
resources, and (3) protecting shareholders when the corporation's internal controls and
board-level control mechanisms are slow, clumsy, or defunct.

Divestitures Are the Subject of Much Erroneous Criticism
If assets are to move to their most highly valued use, acquirers must be able to sell
off assets to those who can use them more productively. Therefore, divestitures are a
critical element in the functioning of the corporate control market, and it is thus important
to avoid inhibiting them. Indeed, over 1200 divestitures occurred in 1985, a record
level.12 Labeling divestitures with emotional terms such as "bustups" is not a substitute
for analysis or evidence.
Moreover, it is important to recognize that divested plants and assets do not
disappear; they are reallocated. Sometimes they continue to be used in similar ways in
the same industry, and in other cases they are used in very different ways and in different
industries. But in both cases they are moving to uses that their new owners believe are
more productive. This is beneficial to society.
Finally, it is useful to recognize that the takeover and divestiture market provides
a private market constraint against bigness for its own sake. The potential gains available
to those who correctly perceive that a firm can be purchased for less than the value
realizable from the sale of its components provide incentives for entrepreneurs to search
out these opportunities and to capitalize on them by reorganizing such firms into smaller
entities.
The mere possibility of such takeovers also motivates managers to avoid putting
together uneconomic conglomerates and to break up existing ones. This is now
happening. Recently it has appeared that many firms' defenses against takeovers have led
to actions similar to those proposed by potential acquirers. Examples are the
reorganizations occurring in the oil industry, the sale of "crown jewels," and divestitures
brought on by the desire to liquidate large debts incurred to buy back stock or to make
12
Grimm, W. T., Mergerstat Review (1985).
other payments to stockholders. Unfortunately, the basic economic sense of these
transactions is often lost in a blur of emotional rhetoric and controversy.
The sale of a firm's crown jewels, for example, benefits shareholders when the
price obtained for the division is greater than the present value of the future cash flows to
the current owner. A takeover bid motivated by the desire to obtain such an underused
division can stimulate current managers to reexamine the economics of the firm's current
structure and to sell one or more of its divisions to a third party who is willing to pay
even more than the initial offerer. Brunswick's sale of its Sherwood Medical Division to
American Home Products after a takeover bid by Whittaker (apparently motivated by a
desire to acquire Sherwood) is an example of such a transaction. The total value to
Brunswick shareholders of the price received for selling Sherwood to American Home
Products plus the remaining value of Brunswick without Sherwood (the proceeds from
the sale of Sherwood were distributed directly to Brunswick’s shareholders) was greater
than Whittaker's offer for the entire company.13
Managers May Behave Myopically But Markets Do Not
It has been argued that growing institutional equity holdings and the fear of
takeover cause managers to behave myopically and therefore to sacrifice long-term

benefits to increase short-term profits. The arguments tend to confuse two separate
issues: 1) whether managers are shortsighted and make decisions that undervalue future
cash flows while overvaluing current cash flows (myopic managers); and 2) whether
security markets are shortsighted and undervalue future cash flows while overvaluing
near-term cash flows (myopic markets).
There is little formal evidence on the myopic managers issue, but I believe this
phenomenon does occur. Sometimes it occurs when managers hold little stock in their
13
See the analysis in Jensen [1984, p. 119], cited in note 4.
companies and are compensated in ways that motivate them to take actions that increase
accounting earnings rather than the value of the firm. It also occurs when managers make
mistakes because they do not understand the forces that determine stock values.
There is much evidence inconsistent with the myopic markets view and none that
supports it:
• Even casual observation of the equity markets reveals that the market values more than
current earnings. It values growth as well. The mere fact that price/earnings ratios differ
widely among securities indicates the market is valuing something other than current
earnings. Indeed, the essence of a growth stock is one that has large investment projects
yielding few short-term cash flows but high future earnings and cash flows.
• The continuing marketability of new issues for start-up companies with little record of
current earnings--the Genentechs of the world--is also inconsistent with the notion that the
market does not value future earnings.
• A recent study provides evidence that (except in the oil industry) stock prices respond
positively to announcements of increased investment expenditures, and negatively to
reduced expenditures.14 This evidence is inconsistent with the notion that the equity market
is myopic.
• The vast evidence on efficient markets indicating that current stock prices appropriately
incorporate all currently available public information is also inconsistent with the myopic
markets hypothesis. Although the evidence is not literally 100 percent in support of the
efficient market hypothesis, there is no better documented proposition in any of the social
sciences.15
The evidence indicates, for example, that the market appropriately interprets the
implications of corporate accounting changes that increase reported profits but cause no
change in corporate cash flows.16
14
John J. McConnell and Chris J. Muscarella, "Corporate Capital Expenditure Decisions and the Market
Value of the Firm,” Journal of Financial Economics, 14, No. 3 (1985).
15
For an introduction to the literature and empirical evidence on the theory of efficient markets, see E.
Elton and M. Gruber, Modern Portfolio Theory and Investment Analysis, (New York: Wiley, 1984),
Chapter 15, p. 375ff. and the 167 studies referenced in the bibliography.
16
Examples are switches from accelerated to straight-line depreciation techniques and adoption of the flow-
through method for reporting investment tax credits. Here the evidence indicates that “security prices
increased around the date when a firm first announces earnings inflated by an accounting change. The
effect appears to be temporary, and, certainly by the subsequent quarterly report, the price has resumed a
level appropriate to the true economic status of the firm.” See R. Kaplan and R. Roll, "Investor Evaluation
of Accounting Information: Some Empirical Evidence," Journal of Business, (April, 1972), 225-257.
Additional evidence is provided by the 30 percent increase in ARCO's stock price
that occurred when it announced its major restructuring in 1985. This price increase is
inconsistent with the notion that the market values only short-term earnings. Even
though ARCO simultaneously revealed it would have to take a $1.2 billion write-off as a
result of the restructuring, the market still responded positively.

• Recent versions of the myopic markets hypothesis emphasize increasing institutional
holdings and the pressures institutional investors face to show high returns on a quarter-to-
quarter basis. It is argued that these pressures on institutions are a major cause of pressures
on corporations to generate high current earnings on a quarter-to-quarter basis. The
institutional pressures are said to lead to increased takeovers of firms (because institutions
are not loyal shareholders) and to decreased research and development expenditures. It is
argued that because R&D expenditures reduce current earnings, firms making them are
therefore more likely to be taken over, and that reductions in R&D are leading to a
fundamental weakening of the corporate sector of the economy.
A recent study of 324 firms by the Office of the Chief Economist of the SEC finds
substantial evidence that is inconsistent with this version of the myopic markets
argument.17 The evidence indicates that:

• increased institutional stock holdings are not associated with increased takeovers of
firms;
• increased institutional holdings are not associated with decreases in research and
development expenditures;
• firms with high research and development expenditures are not more vulnerable to
takeovers;
• stock prices respond positively to announcements of increases in research and
development expenditures.
Those who make the argument that takeovers are reducing R&D spending also
have to come to grips with the aggregate data on such spending, which is inconsistent
with the argument. Total spending on R&D in 1984, a year of record acquisition activity,
increased by 14 percent according to Business Week's annual survey of 820 companies.
(The sample companies account for 95 percent of total private-sector R&D expenditures.)
17
Office of the Chief Economist, Securities and Exchange Commission, "Institutional Ownership, Tender
Offers, and Long-Term Investments," April 19, 1985.
This represented "the biggest gain since R&D spending began a steady climb in the late
1970's."18 All industries in the survey increased R&D spending with the exception of
steel. Moreover, R&D spending increased from 2 percent of sales, where it had been for
five years, to 2.9 percent.
An Alternative Hypothesis
There is an alternative hypothesis that explains the current facts, including the
criticisms of managers, quite well.
Suppose that some managers are simply mistaken--that is, their strategies are
wrong--and that the financial markets are telling them they are wrong. If they don't
change, their stock prices will remain low. If the managers are indeed wrong, it is
desirable for the stockholders and for the economy to remove them to make way for a
change in strategy and more efficient use of the resources.
FREE CASH FLOW THEORY OF TAKEOVERS19
More than a dozen separate forces drive takeover activity, including such factors
as deregulation, synergies, economies of scale and scope, taxes, managerial

incompetence, and increasing globalization of U.S. markets.20 One major cause of
takeover activity are the agency costs associated with conflicts between managers and
shareholders over the payout of free cash flow. Though this has received relatively little
attention, it has played an important role in acquisitions over the last decade.
18
“R&D Scoreboard: Reagan & Foreign Rivalry Light a Fire Under Spending", Business Week (July 8,
1985), p. 86 ff.
19
This discussion is based on my article, “Agency Costs of Free Cash flow, Corporate Finance and
Takeovers,” forthcoming in American Economic Review, (May 1986).
20
Richard Roll discusses a number of these forces in "Empirical Evidence on Takeover Activity and
Shareholder Wealth," (presented at the Conference on Takeovers and Contests for Corporate Control,
Columbia University, November 1985).
Managers are the agents of shareholders, and because both parties are self-
interested, there are serious conflicts between them over the choice of the best corporate
strategy. Agency costs are the total costs that arise in such cooperative arrangements.
They consist of the costs of monitoring managerial behavior (such as the costs of
producing audited financial statements and devising and implementing compensation
plans that reward managers for actions that increase investors' wealth) and the inevitable
costs that are incurred because the conflicts of interest can never be resolved perfectly.
Sometimes these costs can be large and, when they are, takeovers can reduce them.
Free Cash Flow and the Conflict Between Managers and Shareholders
Free cash flow is cash flow in excess of that required to fund all projects that have
positive net values when discounted at the relevant cost of capital. Such free cash flow
must be paid out to shareholders if the firm is to be efficient and to maximize value for
shareholders.
Payment of cash to shareholders reduces the resources under managers' control,
thereby reducing managers' power, and potentially subjecting them to the monitoring by
the capital markets that occurs when a firm must obtain new capital. Financing projects
internally avoids this monitoring and the possibility that funds will be unavailable or
available only at high explicit prices.
Managers have incentives to expand their firms beyond the size that maximizes
shareholder wealth.21 Growth increases managers' power by increasing the resources
under their control. In addition, changes in management compensation are positively
21
See Gordon Donaldson, Managing Corporate Wealth (Praeger: 1984). Donaldson, in a detailed study of
12 large Fortune 500 firms, concludes that managers of these firms were not driven by maximization of the
value of the firm, but rather by the maximization of "corporate wealth." He defines corporate wealth as
"the aggregate purchasing power available to management for strategic purposes during any given
planning period. … this wealth consists of the stocks and flows of cash and cash equivalents (primarily
credit) that management can use at its discretion to implement decisions involving the control of goods and
services." (p. 3, emphasis in original) "In practical terms it is cash, credit, and other corporate purchasing
power by which management commands goods and services." (p. 22).
related to growth.22 The tendency of firms to reward middle managers through promotion
rather than year-to-year bonuses also creates an organizational bias toward growth to
supply the new positions that such promotion-based reward systems require.23
The tendency for managers to overinvest resources is limited by competition in
the product and factor markets, which tends to drive prices toward minimum average cost
in an activity. Managers must therefore motivate their organizations to be more efficient
to improve the probability of survival. Product and factor market disciplinary forces are
often weaker in new activities, however, and in activities that involve substantial
economic rents or quasi-rents.24 In these cases, monitoring by the firm's internal control
system and the market for corporate control are more important. Activities yielding
substantial economic rents or quasi- rents are the types of activities that generate large
amounts of free cash flow.
Conflicts of interest between shareholders and managers over payout policies are
especially severe when the organization generates substantial free cash flow. The
problem is how to motivate managers to disgorge the cash rather than invest it at below
the cost of capital or waste it through organizational inefficiencies.
Some finance scholars have argued that financial flexibility (unused debt capacity
and internally generated funds) is desirable when a firm's managers have better
information about the firm than outside investors.25 Their arguments assume that
managers act in the best interest of shareholders. The arguments offered here imply that
22
Where growth is measured by increases in sales. See Kevin J. Murphy, "Corporate Performance and
Managerial Remuneration: An Empirical Analysis," Journal of Accounting and Economics 7, Nos. 1-3
(April 1985), pp. 11-42. This positive relationship between compensation and sales growth does not imply,
although it is consistent with, causality.
23
See George Baker, “Compensation and Hierarchies” (unpublished, Harvard Business School, January
1986).
24
Rents are returns in excess of the opportunity cost of the resources committed to the activity. Quasi-rents
are returns in excess of the short-run opportunity cost of the resources to the activity.
25
See Stewart C. Myers and Nicholas S. Majluf, "Corporate Financing and Investment Decisions When
Firms Have Information That Investors Do Not Have," Journal of Financial Economics 13 (1984), pp.187-
221.
such flexibility has costs: financial flexibility in the form of free cash flow, large cash
balances, and unused borrowing power provides managers with greater discretion over
resources that is often not used in the shareholders' interests.
The theory developed here explains (1) how debt-for-stock exchanges reduce the
organizational inefficiencies fostered by substantial free cash flow, (2) how debt can
substitute for dividends, (3) why "diversification" programs are more likely to be
associated with losses than are expansion programs in the same line of business, (4) why
mergers within an industry and liquidation-motivated takeovers will generally create
larger gains than cross-industry mergers, (5) why the factors stimulating takeovers in
such diverse businesses as broadcasting, tobacco, cable systems and oil are essentially
identical, and (6) why bidders and some targets tend to show abnormally good
performance prior to takeover.
The Role of Debt in Motivating Organizational Efficiency
The agency costs of debt have been widely discussed,26 but the benefits of debt in
motivating managers and their organizations to be efficient have largely been ignored. I
call these effects the "control hypothesis" for debt creation.
Managers with substantial free cash flow can increase dividends or repurchase
stock and thereby pay out current cash that would otherwise be invested in low-return
projects or wasted. This payout leaves managers with control over the use of future free
cash flows, but they can also promise to pay out future cash flows by announcing a
"permanent" increase in the dividend.27 Because there is no contractual obligation to
26
See Michael C. Jensen and William H. Meckling. "Theory of the Firm: Managerial Behavior, Agency
Costs and Ownership Structure," Journal of Financial Economics. V.3 (1976), pp.305-360; Stewart C.
Myers, "Determinants of Corporate Borrowing," Journal of Financial Economics, V.5, No.2 (1977),
pp.147-175; and Clifford W. Smith, Jr. and Jerold B. Warner, "On Financial Contracting: An Analysis of
Bond Covenants," Journal of Financial Economics, V.7 (1979), pp.117-161.
27
Interestingly, Graham and Dodd, in their treatise, Security Analysis, placed great importance on the
dividend payout in their famous valuation formula: V = M (D + .33E), (p.454). V is value, M is the
make the promised dividend payments, such promises are weak. Dividends can be
reduced by managers in the future with little effective recourse available to shareholders.
The fact that capital markets punish dividend cuts with large stock-price reductions is an
interesting equilibrium market response to the agency costs of free cash flow.28
Debt creation, without retention of the proceeds of the issue, enables managers
effectively to bond their promise to pay out future cash flows. Thus, debt can be an
effective substitute for dividends, something that is not generally recognized in the
corporate finance literature.29 By issuing debt in exchange for stock, managers bond their
promise to pay out future cash flows in a way that simple dividend increases do not. In
doing so, they give shareholder-recipients of the debt the right to take the firm into
bankruptcy court if they do not keep their promise to make the interest and principle
payments.30 Thus, debt reduces the agency costs of free cash flow by reducing the cash
flow available for spending at the discretion of managers.
Issuing large amounts of debt to buy back stock sets up organizational incentives
to motivate managers to pay out free cash flow. In addition, the exchange of debt for
earnings multiplier when the dividend payout rate is a "normal two-thirds of earnings," D is the expected
dividend, and E is expected earnings. In their formula, dividends are valued at three times the rate of
retained earnings, a proposition that has puzzled many students of modern finance (at least of my vintage).
The agency cost of free cash flow that leads to overretention and waste of shareholder resources is
consistent with the deep suspicion with which graham and Dodd viewed the lack of payout. Their
discussion (chapter 34) reflects a belief in the tenuous nature of the future benefits of such retention.
Although they do not couch the issues in terms of the conflict between managers and shareholders, the free
cash flow theory explicated here implies that their beliefs, sometimes characterized as "a bird in the hand is
worth two in the bush," were perhaps well founded. See Chapters 32, 34, and 36 in Benjamin Graham and
David L. Dodd, Security Analysis: Principles and Technique (New York, McGraw-Hill, 1951).
28
See Guy Charest, "Dividend Information, Stock Returns, and Market Efficiency-II, Journal of Financial
Economics 6, (1978), pp.297-330; and Joseph Aharony and Itzhak Swary, "Quarterly Dividend and
Earnings Announcements and Stockholder's Returns: An Empirical Analysis," Journal of Finance 35
(1980), pp.1-12.
29
Literally, principal and interest payments are substitutes for dividends. However, because interest is tax-
deductible at the corporate level and dividends are not, dividends and debt are not perfect substitutes.
30
Two studies argue that regular dividend payments can be effective in reducing agency costs with
managers by assuring that managers are forced more frequently to subject themselves and their policies to
the discipline of the capital markets when they acquire capital. See Frank H. Easterbrook, "Managers'
Discretion and Investors' Welfare: Theories and Evidence," Delaware Journal of Corporate Law, V.9, No.3
(1984b), pp.540-571; and Michael Rozeff, "Growth, Beta and Agency Costs as Determinants of Dividend
Payout Ratios" Journal of Financial Research, V.5 (1982), pp.249-59.
stock also helps managers overcome the normal organizational resistance to retrenchment
that the payout of free cash flow often requires. The threat of failure to make debt-
service payments serves as a strong motivating force to make such organizations more
efficient. Stock repurchase for debt or cash also has tax advantages. Interest payments
are tax-deductible to the corporation; the part of the repurchase proceeds equal to the
seller's tax basis in the stock is not taxed at all, and that which is taxed is subject to
capital-gains rates.
The control hypothesis does not imply that debt issues will always have positive
control effects. For example, these effects will not be as important for rapidly growing
organizations with large and highly profitable investment projects but no free cash flow.
Such organizations will have to go regularly to the financial markets to obtain capital. At
these times the markets have an opportunity to evaluate the company, its management,
and its proposed projects. Investment bankers and analysts play an important role in this
monitoring, and the market's assessment is made evident by the price investors pay for
the financial claims.
The control function of debt is more important in organizations that generate large
cash flows but have low growth prospects, and it is even more important in organizations
that must shrink. In these organizations the pressures to waste cash flows by investing
them in uneconomic projects are most serious.
[The original paper contains a section here entitled "Evidence from Financial
Transactions in Support of the Free Cash Flow Theory of Mergers,” which appears in
the “Appendix” to this article.]
The Evidence from Leveraged Buyout and Going-Private Transactions
Many of the benefits in going-private and leveraged buyout transactions seem to

be due to the control function of debt. These transactions are creating a new
organizational form that competes successfully with the open corporate form because of
advantages in controlling the agency costs of free cash flow. In 1984, going-private
transactions totaled $10.8 billion and represented 27 percent of all public acquisitions.31
The evidence indicates premiums paid averaged over 50 percent.32
Desirable leveraged buyout candidates are frequently firms or divisions of larger
firms that have stable business histories and substantial free cash flow (that is, low
growth prospects and high potential for generating cash flows)—situations where agency
costs of free cash flow are likely to be high. Leveraged buyout transactions are
frequently financed with high debt; ten-to-one ratios of debt to equity are not uncommon.
Moreover, the use of strip financing and the allocation of equity in the deals reveal a
sensitivity to incentives, conflicts of interest, and bankruptcy costs.
Strip financing, the practice in which risky non-equity securities are held in
approximately equal proportions, limits the conflict of interest among such security
holders and therefore limits bankruptcy costs. A somewhat oversimplified example
illustrates the point. Consider two firms identical in every respect except financing.
Firm A is entirely financed with equity, and firm B is highly leveraged with senior
subordinated debt, convertible debt, and preferred as well as equity. Suppose Firm B
securities are sold only in strips--that is, a buyer purchasing X percent of any security
must purchase X percent of all securities, and the securities are "stapled" together so they
cannot be separated later. Security holders of both firms have identical unlevered claims
on the cash flow distribution, but organizationally the two firms are very different. If
Firm B managers withhold dividends to invest in value-reducing projects or if they are
incompetent, strip holders have recourse to remedial powers not available to the equity
31
By number. See W. T. Grimm, Mergerstat Review (1985), Figs. 36 and 37.
32
See H. DeAngelo, L. DeAngelo and E. Rice, "Going Private: Minority Freezeouts and Stockholder
Wealth, " Journal of Law and Economics, V.27, No.2 (October, 1984), pp.367-401; and Louis Lowenstein,
"Management Buyouts," Columbia Law Review, V.85 (May, 1985), pp. 730-784. Lowenstein also
mentions incentive effects of debt but argues tax effects play a major role in explaining the value increase.
holders of Firm A. Each Firm B security specifies the rights its holder has in the event of
default on its dividend or coupon payment--for example, the right to take the firm into
bankruptcy or to have board representation. As each security above equity goes into
default the strip holder receives new rights to intercede in the organization. As a result, it
is quicker and less expensive to replace managers in Firm B.
Moreover, because every security holder in the highly levered Firm B has the
same claim on the firm, there are no conflicts between senior and junior claimants over
reorganization of the claims in the event of default; to the strip holder it is a matter of
moving funds from one pocket to another. Thus, Firm B need never go into bankruptcy.
The reorganization can be accomplished voluntarily, quickly, and with less expense and
disruption than through bankruptcy proceedings.
Securities commonly subject to strip practices are often called "mezzanine"
financing and include securities with priority superior to common stock yet subordinate
to senior debt. This seems to be a sensible arrangement. Because of several other factors
ignored in our simplified example, IRS restrictions deny tax deductibility of debt interest
in such situations and bank holdings of equity are restricted by regulation. Riskless
senior debt need not be in the strip because there are no conflicts with other claimants in
the event of reorganization when there is no probability of default on its payments.
It is advantageous to have top-level managers and venture capitalists who
promote the transactions hold a larger share of the equity. Top-level managers frequently
receive 15 percent-20 percent of the equity, and venture capitalists and the funds they
represent generally retain the major share of the remainder. The venture capitalists
control the board of directors and monitor managers. Managers and venture capitalists
have a strong interest in making the venture successful because their equity interests are
subordinate to other claims. Success requires, among other things, implementation of
changes to avoid investment in low-return projects in order to generate the cash for debt
service and to increase the value of equity. Finally, when the equity is held primarily by
managers or generally by a small number of people, greater efficiencies in risk bearing
are possible by placing more of the risk in the hands of debt holders when the debt is held
in well diversified institutional portfolios.
Less than a handful of these leveraged buyout ventures have ended in bankruptcy,
although more have gone through private reorganizations. A thorough test of this
organizational form requires the passage of time and another recession.
Some have asserted that managers engaging in a buyout of their firm are
insulating themselves from monitoring. The opposite is true in the typical leveraged
buyout. Because the venture capitalists are generally the largest shareholder and control
the board of directors, they have both greater ability and incentives to monitor managers
effectively than directors representing diffuse public shareholders in the typical public
corporation.
Evidence from the Oil Industry
The oil industry is large and visible. It is also an industry in which the importance of
takeovers in motivating change and efficiency is particularly clear. Therefore, detailed analysis
of it provides an understanding of how the market for corporate control helps motivate more
efficient use of resources in the corporate sector.
Reorganization of the industry is mandatory. Radical changes in the energy
market from 1973 to the late 1970s imply that a major restructuring of the petroleum
industry had to occur. These changes are as follows:

• a ten-fold increase in the price of crude oil from 1973 to 1979;
• reduced annual consumption of oil in the U. S.;
• reduced expectations of future increases in the price of oil;
• increased exploration and development costs;
• and increased real interest rates.
As a result of these changes the optimal level of refining and distribution capacity
and crude reserves fell over this period, and since the late 1970s the industry has been
plagued with excess capacity. Reserves are reduced by reducing the level of exploration
and development, and it pays to concentrate these reductions in high-cost areas such as
the United States.
Substantial reductions in exploration and development and in refining and distribution
capacity meant that some firms had to leave the industry. This is especially true because holding
reserves is subject to economies of scale, whereas exploration and development are subject to
diseconomies of scale.
Price increases created large cash flows in the industry. For example, 1984 cash
flows of the ten largest oil companies were $48.5 billion, 28 percent of the total cash
flows of the top 200 firms in Dun's Business Month [1985] survey. Consistent with the
agency costs of free cash flow, management did not pay out the excess resources to
shareholders. Instead, the industry continued to spend heavily on exploration and
development even though average returns on these expenditures were below the cost of
capital.
Paradoxically, the profitability of oil exploration and drilling activity can decrease
even though the price of oil increases if the value of reserves in the ground falls. This
can happen when the price increase is associated with reductions in consumption that
make it difficult to market newly discovered oil. In the late 1970s the increased holding
costs associated with higher real interest rates, reductions in expected future oil price
increases, increased exploration and development costs, and reductions in the
consumption of oil combined to make many exploration and development projects
uneconomic. The industry, however, continued to spend heavily on such projects.
The hypothesis that oil-industry exploration and development expenditures were
too high during this period is consistent with the findings of a study by McConnell and
Muscarella.33 Their evidence indicates that announcements of increases in exploration
and development expenditures by oil companies in the period 1975-1981 were associated
with systematic decreases in the announcing firm's stock prices. Moreover,
announcements of decreases in exploration and development expenditures were
associated with increases in stock prices. These results are striking in comparison with
their evidence that exactly the opposite market reaction occurs with increases and
decreases in investment expenditures by industrial firms, and SEC evidence that increases
in research and development expenditures are associated with increased stock prices.34
Additional evidence of the uneconomic nature of the oil industry's exploration and
development expenditures is contained in a study by Bernard Picchi of Salomon
Brothers. His study of the rates of return on exploration and development expenditures
for 30 large oil firms indicated that on average the industry did not earn "even a 10%
return on its pretax outlays" in the period 1982-1984. Estimates of the average ratio of
the present value of future net cash flows of discoveries, extensions, and enhanced
recovery to expenditures for exploration and development for the industry ranged from
less than .6 to slightly more than .9, depending on the method used and the year. In other
words, taking the cost of capital to be only 10 percent on a pretax basis, the industry was
realizing on average only 60 to 90 cents on every dollar invested in these activities.
Picchi concludes:
For 23 of the [30] companies in our survey, we would recommend immediate cuts
of perhaps 25%-30% in exploration and production spending. It is clear that much of the
money that these firms spent last year on petroleum exploration and development yielded
33
John J. McConnell and Chris J. Muscarella, "Corporate Capital Expenditure Decisions and the Market
Value of the Firm, "Journal of Financial Economics V. 14, No. 3 (1985).
34
Office of the Chief Economist, Securities and Exchange Commission, "Institutional Ownership, Tender
Offers, and Long-Term Investments," April 19, 1985.
subpar financial returns—even at $30 per barrel, let alone today's $26-$27 per barrel
price structure.35
The waste associated with excessive exploration and development expenditures
explains why buying oil on Wall Street was considerably cheaper than obtaining it by
drilling holes in the ground, even after adjustment for differential taxes and regulations
on prices of old oil. Wall Street was not undervaluing the oil; it was valuing it correctly,
but it was also correctly valuing the wasted expenditures on exploration and development
that oil companies were making. When these managerially imposed "taxes" on the
reserves were taken into account, the net price of oil on Wall Street was very low. This
provided incentives for firms to obtain reserves by purchasing other oil companies and
reducing expenditures on non-cost-effective exploration.
High profits are not usually associated with retrenchment. Adjustment by the energy
industry to the new environment has been slow for several reasons. First, it is difficult for
organizations to change operating rules and practices like those in the oil industry that have
worked well for long periods in the past, even though they do not fit the new situation.
Nevertheless, survival requires that organizations adapt to major changes in their environment.
Second, the past decade has been a particularly puzzling period in the oil business
because at the same time that changes in the environment have required a reduction of
capacity, cash flows and profits have been high. This is a somewhat unusual condition in
which the average productivity of resources in the industry increased while the marginal
productivity decreased. The point is illustrated graphically in Figure 1.
35
Bernard J. Picchi, "The Structure of the U.S. Oil Industry: Past and Future" (Salomon Brothers Inc.) July
1985, emphasis in original.
FIGURE 1
MARGINAL PRODUCTIVITY OF CAPITAL IN THE OIL INDUSTRY: 1985 VS. 1973
Marginal Productivity of
Capital in 1985
$
Marginal Productivity of
Capital in 1973
Cost of
Capital
Q2 Q1 Quantity of
Capital in the
Oil Industry
As the figure illustrates, profits plus payments to factors of production other than capital
were larger in 1985 than in 1973. Moreover, because of the upward shift and simultaneous twist
of the marginal productivity of capital schedule from 1973 to 1985, the optimal level of capital
devoted to the industry fell from Q1 to Q2. Thus, the adjustment signals were confused because
the period of necessary retrenchment coincided with substantial increases in value brought about
by the tenfold increase in the price of the industry's major asset, its inventory of crude oil
reserves.
The large cash flows and profits generated by the increases in oil prices both masked the
losses imposed by the product markets on marginal facilities and enabled oil companies to
finance major expenditures internally. Thus, the normal disciplinary forces of the product market
have been weak, and those of the capital markets have been inoperative during the past decade.
Third, the oil companies' large and highly visible profits subjected them to strong
political pressures to reinvest the cash flows in exploration and development to respond to the
incorrect, but popular, perception that reserves were too low. Furthermore, while reserves were
on average too high, those firms which were substantially short of reserves were spending to
replenish them to avoid the organizational consequences associated with reserve deficiencies.
The resulting excessive exploration and development expenditures by the industry and the
considerable delays in retrenchment of refining and distribution facilities wasted resources.
In sum, the stage was set for retrenchment in the oil industry in the early 1980s. Yet the
product and capital markets could not force management to change its strategy because the
industry's high internal cash flows insulated them from these pressures.
The fact that oil industry managers tried to invest funds outside the industry is also
evidence that they could not find enough profitable projects within the industry to use the huge
inflow of resources efficiently. Unfortunately these efforts failed. The diversification programs
involved purchases of companies in retailing (Marcor by Mobil), manufacturing (Reliance
Electric by Exxon), office equipment (Vydec by Exxon), and mining (Kennecott by Sohio,
Anaconda Minerals by ARCO, Cyprus Mines by Amoco). These acquisitions turned out to be
among the least successful of the last decade, partly because of bad luck (e.g., the collapse of the
minerals industry) and partly because of a lack of managerial expertise outside the oil industry.
The effects of takeovers. Ultimately the capital markets, through the takeover market,
have begun to force managers to respond to the new market conditions. Unfortunately, there is
widespread confusion about the important role of takeovers in bringing about the difficult but
necessary organizational changes required in the retrenchment.
Managers, quite naturally, want large amounts of resources under their control to insulate
them from the uncertainties of markets.36 Retrenchment requires cancellation or delay of ongoing
and planned projects. This affects the careers of the people involved, and the resulting resistance
means that such changes frequently do not get made without the major pressures often associated
with a crisis. A takeover attempt can create the crisis that brings about action where none would
otherwise occur.
36
See Gordon Donaldson, Managing Corporate Wealth, (Praeger: 1984)
T. Boone Pickens of Mesa Petroleum perceived early that the oil industry must be
restructured. Partly as a result of Mesa's efforts, firms in the industry were led to merge, and in
the merging process they paid out large amounts of capital to shareholders, reduced excess
expenditures on exploration and development, and reduced excess capacity in refining and
distribution.
The result has been large gains in efficiency. Total gains to the shareholders in the Gulf-
Chevron, Getty-Texaco and DuPont-Conoco mergers, for example, were over $17 billion. Much
more is possible. A study by Allen Jacobs estimates that, as of December 1984, the total potential
gains from eliminating the inefficiencies in 98 petroleum companies amounted to approximately
$200 billion.37
Recent events indicate that actual takeover is not necessary to induce the required
adjustments:
• The Phillips restructuring plan, in response to the threat of takeover, has involved
substantial retrenchment and return of resources to shareholders; and the result was a $1.2
billion (20%) gain in Phillips' market value. It repurchased 53 percent of its stock for $4.5
billion in debt, raised its dividend 25 percent, cut capital spending, and initiated a program
to sell $2 billion of assets.
• Unocal's defense in the Mesa tender offer battle resulted in a $2.2 billion (35%) gain to
shareholders from retrenchment and return of resources to shareholders. It paid out 52
percent of its equity by repurchasing stock with a $4.2 billion debt issue and will reduce
costs and capital expenditures.
• The voluntary restructuring announced by ARCO resulted in a $3.2 billion (30%) gain
in market value. ARCO's restructuring involves a 35 to 40 percent cut in exploration and
development expenditures, repurchase of 25 percent of its stock for $4 billion, a 33 percent
increase in its dividend, withdrawal from gasoline marketing and refining east of the
Mississippi, and a 13 percent reduction in its work force.
• The announcement of the Diamond-Shamrock reorganization in July 1985 provides an
interesting contrast to the others and further support for the theory because the company's
market value fell 2 percent on the announcement day. Because the plan results in an
effective increase in exploration and capital expenditures and a reduction in cash payouts to
investors, the restructuring does not increase the value of the firm. The plan involved
reducing cash dividends by $.76/share (-43%), creating a master limited partnership to hold
properties accounting for 35 percent of its North American oil and gas production, paying
an annual $.90/share dividend in partnership shares, repurchasing 6 percent of its shares for
37
Allen Jacobs, "The Agency Cost of Corporate Control: The Petroleum Industry," (MIT, unpublished
paper, March, 1986).
$200 million, selling 12 percent of its master limited partnership to the public, and
increasing its expenditures on oil and gas exploration by $100 million per year.
Free Cash Flow Theory of Takeovers
Free cash flow is only one of approximately a dozen theories to explain takeovers, all of
which are of some relevance in explaining the numerous forces motivating merger and
acquisition activity.38 The agency cost of free cash flow is consistent with a wide range of data
for which there has been no consistent explanation. Here I sketch some empirical predictions of
the free cash flow theory for takeovers and mergers, and what I believe are the facts that lend it
credence.
The positive market response to debt creation in oil and other takeovers is
consistent with the agency costs of free cash flow and the control hypothesis of debt.39
The data is consistent with the notion that additional debt increases efficiency by forcing
organizations with large cash flows but few high-return investment projects to pay out
cash to investors. The debt helps prevent such firms from wasting resources on low-
return projects.
Acquisitions are one way managers spend cash instead of paying it out to
shareholders. Therefore, free cash flow theory predicts which mergers and takeovers are
more likely to destroy, rather than to create value. It shows how takeovers are both
evidence of the conflicts of interest between shareholders and managers, and a response
to the problem. The theory implies that managers of firms with unused borrowing power
and large free cash flows are more likely to undertake low-benefit or even value-
destroying mergers. Diversification programs generally fit this category, and the theory
predicts they will generate lower total gains. The major benefit of such transactions may
38
See Roll, 1986, cited earlier.
39
See Robert Bruner, "The Use of Excess Cash and Debt Capacity as a Motive for Merger," (unpublished,
Colgated Darden Graduate School of Business, December 1985).
be that they involve less waste of resources than if the funds had been invested internally
in unprofitable projects.40
Low-return mergers are more likely to occur in industries with large cash flows
whose economics dictate retrenchment. Horizontal mergers (where cash or debt is the
form of payment) within declining industries will tend to create value because they
facilitate exit; the cash or debt payments to shareholders of the target firm cause
resources to leave the industry directly. Mergers outside the industry are more likely to
have low or even negative returns because managers are likely to know less about
managing such firms.
Oil fits this description and so does tobacco. Tobacco firms face declining
demand as a result of changing smoking habits, but they generate large free cash flow and
have been involved in major diversifying acquisitions recently--for example, the $5.6
billion purchase of General Foods by Philip Morris. The theory predicts these
acquisitions in non-related industries are more likely to create negative productivity
effects--though these negative effects appear to be outweighed by the reductions in waste
from internal expansion.
40
Acquisitions made with cash or securities other than stock involve payout of resources to (target)
shareholders, and this can create net benefits even if the merger creates operating inefficiencies. To
illustrate the point, consider an acquiring firm, A, with substantial free cash flow that the market expects
will be invested in low-return projects with a negative net present value of $100 million. If Firm A makes
an acquisition of Firm B that generates zero synergies but uses up all of Firm A's free cash flow (and
thereby prevents its waste) the combined market value of the two firms will rise by $100 million. The
market value increases because the acquisition eliminates the expenditures on internal investments with
negative market value of $100 million. Extending the argument, we see that acquisitions that have negative
synergies of up to $100 million in current value will still increase the combined market value of the two
firms. Such negative-synergy mergers will also increase social welfare and aggregate productivity
whenever the market value of the negative productivity effects on the two merging firms is less than the
market value of the waste that would have occurred with the firms' investment programs in the absence of
the merger. The division of the gains between the target and bidding firms depends, of course, on the
bargaining power of the two parties. Because the bidding firms are using funds that would otherwise have
been spent on low-or-negative-return projects, however, the opportunity cost of the funds is lower than
their cost of capital. As a result, they will tend to overpay for the acquisition and thereby transfer most, if
not all, of the gains to the target firm's shareholders. In extreme cases they may pay so much that the
bidding firm share price falls, in effect giving the target-shareholders more than 100 percent of the gains.
These predictions are consistent with the evidence.
Forest products is another industry with excess capacity and acquisition activity,
including the acquisition of St. Regis by Champion International and Crown Zellerbach
by Sir James Goldsmith. Horizontal mergers for cash or debt in such an industry
generate gains by encouraging exit of resources (through payout) and by substituting
existing capacity for investment in new facilities by firms that are short of capacity.
Food-industry mergers also appear to reflect the expenditure of free cash flow.
The industry apparently generates large cash flows with few growth opportunities. It is
therefore a good candidate for leveraged buyouts, and these are now occurring; the $6.3
billion Beatrice LBO is the largest ever.
The broadcasting industry generates rents in the form of large cash flows on its
licenses and also fits the theory. Regulation limits the overall supply of licenses and the
number owned by a single entity. Thus, profitable internal investments are limited and
the industry's free cash flow has been spent on organizational inefficiencies and divers-
ification programs, making these firms takeover targets. The CBS debt-for-stock
exchange and restructuring as a defense against the hostile bid by Turner fits the theory,
and so does the $3.5 billion purchase of American Broadcasting Company by Capital
Cities Communications. Completed cable systems also create agency problems from free
cash flows in the form of rents on their franchises and quasi-rents on their investment,
and are likely targets for acquisition and leveraged buyouts.
Large cash flows earned by motion picture companies on their film libraries also
represent quasi-rents and are likely to generate free cash flow problems. The attempted
takeover of Disney and its subsequent reorganization is also consistent with the theory.
Drug companies with large cash flows from previous successful discoveries and few
potential future prospects are also likely candidates for large agency costs of free cash
flow.
The theory predicts that value-increasing takeovers occur in response to
breakdowns of internal control processes in firms with substantial free cash flow and
organizational policies (including diversification programs) that are wasting resources.
It predicts hostile takeovers, large increases in leverage, the dismantling of empires with
few economies of scale or scope to give them economic purpose (e.g., conglomerates),
and much controversy as current managers object to loss of their jobs or changes in
organizational policies forced on them by threat of takeover.
The debt created in a hostile takeover (or takeover defense) of a firm suffering
severe agency costs of free cash flow need not be permanent. Indeed, sometimes it is
desirable to "over-leverage" such a firm. In these situations, levering the firm so highly it
cannot continue to exist in its old form yields benefits. It creates the crisis to motivate
cuts in expansion programs and the sale of those divisions that are more valuable outside
the firm. The proceeds are used to reduce debt to a more normal or permanent level.
This process results in a complete rethinking of the organization's strategy and structure.
When it is successful, a much leaner, more efficient, and competitive organization results.
Some Evidence from Merger Studies
Consistent with the data, free cash flow theory predicts that many acquirers will
tend to perform exceptionally well prior to acquisition. This exceptional stock price
performance will often be associated with increased free cash flow, which is then used
for acquisition programs. The oil industry fits this description. Increased oil prices
caused large gains in profits and stock prices in the mid-to-late 1970s. Empirical
evidence from studies of both stock prices and accounting data also indicates
exceptionally good performance for acquirers prior to acquisition.41
41
See the following two papers which were presented at the Conference on Takeovers and Contests for
Corporate Control, Columbia University, November, 1985: Ellen B. Magenheim and Dennis Meuller, "On
Measuring the Effect of acquisitions on Acquiring Firm Shareholders, or Are Acquiring Firm Shareholders
Better Off After an Acquisition Than They Were Before?"; and Michael Bradley and Gregg Jarrell,
"Evidence on Gains from Mergers and Takeovers." See also Paul R. Asquith and E. Han Kim, "The Impact
of Merger Bids on the Participating Firms' Security Holders," Journal of Finance, 37, 1209-1228; Gershon
Mandelker, "Risk and Return: The Case of Merging Firms", Journal of Financial Economics, V.1, No.4
(December, 1974), pp303-336; and T.C. Langetig, "An application of a Three-Factor Performance Index to
Targets will tend to be of two kinds: firms with poor management that have done
poorly before the merger, and firms that have done exceptionally well and have large free
cash flow that they refuse to pay out to shareholders. … In the best study to date of the
determinants of takeover, Palepu [1986] finds strong evidence consistent with the free
cash flow theory of mergers. He studied a sample of 163 firms that were acquired in the
period 1971-1979 and a random sample of 256 firms that were not acquired. Both
samples were in mining and manufacturing and were listed on either the New York or
American Stock Exchange. He finds that target firms were characterized by significantly
lower growth and lower leverage than the nontarget firms, although there was no
significant difference in their holdings of liquid assets. He also finds that poor prior
performance (measured by the net-of-market returns in the four years before the
acquisition) is significantly related to the probability of takeover, and, interestingly, that
accounting measures of past performance such as return on equity are unrelated to the
probability of takeover. He also finds that firms with a mismatch between growth and
resources are more likely to be taken over. These are firms with high growth (measured
by average sales growth), low liquidity (measured by the ratio of liquid assets to total
assets) and high leverage, and firms with low growth, high liquidity, and low leverage.
Finally, Palepu's evidence rejects the hypothesis that takeovers are due to the
undervaluation of a firm's assets as measured by the market-to-book ratio.42
HIGH-YIELD ("JUNK") BONDS
The last several years have witnessed a major innovation in the financial markets with the
establishment of active markets in high-yield bonds. These bonds are rated below investment
˜Measure Stockholder Gains from Merger" Journal of Financial Economics, V.6 (December, 1978),
pp.365-384.
42
Palepu (1986), presented at the Conference on Takeovers and Contests for Corporate Control, Columbia
University, November, 1985.
grade by the bond rating agencies and are frequently referred to as junk bonds, a disparaging term
that bears no relation to their pedigree. They carry interest rates that are 3 to 5 percentage points
higher than the yields on government bonds of comparable maturity. High- yield bonds are best
thought of as commercial loans that can be resold in secondary markets. By traditional standards
they are more risky than investment-grade bonds and therefore carry higher interest rates. An
early study finds the default rates on these bonds have been low and the realized returns have
been disproportionately higher than their risk.43
High-yield bonds have been attacked by those who wish to inhibit their use,
particularly in the financing of takeover bids. The invention of high-yield bonds has
provided methods to finance takeover ventures like those companies use to finance more
traditional ventures. Companies commonly raise funds to finance ventures by selling
claims to be paid from the proceeds of the venture; this is the essence of debt or stock
issues used to finance new ventures. High-yield bonds used in takeovers work similarly.
The bonds provide a claim on the proceeds of the venture, using the assets and cash flows
of the target plus the equity contributed by the acquirer as collateral. This basic structure
is the common way that individuals purchase homes; they use the home plus their down
payment as collateral for the mortgage. There is nothing inherently unusual in the
structure of this contract, although those who would bar the use of high-yield bonds in
takeover ventures would have us believe otherwise.
Some might argue that the risk of high-yield bonds used in takeover attempts is
"too high." But high-yield bonds are by definition less risky than common stock claims
on the same venture. Would these same critics argue that the stock claims are too risky
and thus should be barred? The risk argument makes logical sense only as an argument
that the transactions costs associated with bankruptcy are too high in these ventures or
that the promised yields on the bonds are too low and that investors who purchase them
43
Marshall E. Blume and Donald B. Keim, "Risk and Return Characteristics of Lower-Grade Bonds"
(unpublished paper, The Wharton School, December, 1984).
will not earn returns high enough to compensate for the risk they are incurring. This
argument makes little sense because there is vast evidence that investors are capable of
pricing risks in all sorts of other markets. It is inconceivable they are peculiarly unable to
do so in the high-yield bond market.
In January 1986 the Federal Reserve Board issued a new interpretation of the
margin rules that restricts the use of debt in takeovers to 50 percent or less of the
purchase price. This rule reintroduces size as an effective deterrent to takeover. It was
apparently motivated by the belief that the use of corporate debt had become abnormally
and dangerously high and was threatening the economy.
This assessment is not consistent with the facts. Figure 2 plots three measures of
debt use by non-financial corporations in the U.S. The debt/equity ratio is measured
relative to three bases: market value of equity, estimated current asset value of equity,
and accounting book value of equity measured at historical cost.
110
100
90
P 80
Historical Cost
e
70
r
c 60 Market Value
e
50
n
t 40
Current Value
30
20
10
1961 1963 1965 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985
Year
Source: Federal Reserve System [1986]
FIGURE 2
DEBT-TO-EQUITY RATIOS FOR NON-FINANCIAL
CORPORATIONS: 1961–1985
Although debt/equity ratios were higher in 1985 than in 1961, they were not at
record levels. The book value debt/equity ratio reached a high of 81.4 percent in 1984,
but declined to 78 percent in 1985. The fact that debt/equity ratios measured on an
historical cost basis are relatively high is to be expected, given the previous decade of
inflation. Maintenance of the same inflation-adjusted debt/equity ratio in times of
inflation implies that the book value ratio must rise because the current value of assets in
the denominator of the inflation-adjusted ratio is rising. The current value ratio, which
takes account of inflation, fell from 50.7 percent in 1970 to 46.5 percent in 1985. The
market-value ratio rose from 54.7 percent in 1970 to 80.5 percent in 1984 and plummeted
to 60.8 percent in 1985. The 1985 market-value ratio was 45 percentage points below its
1974 peak of 105.2 percent. In short, the Federal Reserve System's own data are
inconsistent with the reasons given for its restrictions on the use of debt.
High-yield bonds were first used in a takeover bid in early 1984 and have been
involved in relatively few bids in total. In 1984, only about 12 percent of the $14.3
billion of new high-yield debt was associated with mergers and acquisitions. In 1985, 26
percent of the $14.7 billion of new high-yield debt was used in acquisitions.44 Some of
the acquisitions, however, such as the Unocal and CBS offers (both unsuccessful), have
received intense attention from the media; and this publicity has fostered the belief that
high-yield bonds are widely used in takeovers. Nevertheless, high-yield bonds are an
important innovation in the takeover field because they help eliminate mere size as a
deterrent to takeover. They have been particularly influential in helping to bring about
reorganizations in the oil industry.
Historical default rates on high-yield bonds have been low, but many of these
bonds are so new that the experience could prove to be different in the next downturn.
Various opponents have proposed regulations or legislation to restrict the issuance of
such securities, to penalize their tax status, and to restrict their holding by thrifts, which
can now buy them as substitutes for the issuance of nonmarketable commercial loans.
These proposals are premature. Policymakers should be wary of responding to the
44
Source: Drexel Burnham Lambert, private correspondence.
clamor for restrictions by executives who desire protection from the discipline of the
takeover market and by members of the financial community who want to restrict
competition from this new financing vehicle.
The holding of high-yield bonds by thrifts is an interesting issue that warrants
further analysis. The recent deregulation of the banking and thrift industries presents
many opportunities and challenges to the thrifts. Elimination of restrictions on interest
paid to depositors has raised the cost of funds to these institutions. Thrifts have also
received the right to engage in new activities such as commercial lending. Survival
requires these institutions to take advantage of some of these new business opportunities.
The organizational costs of developing commercial lending departments in the
3,500 thrifts in the country will be substantial. Thousands of new loan officers will have
to be hired and trained. The additional wage and training costs and the bad-debt losses
that will be incurred in the learning phase will be substantial. High-yield bonds provide a
promising solution to this problem. If part of the commercial lending function can be
centralized in the hands of investment bankers who provide commercial loans in the form
of marketable high-yield debt, the thrifts can substitute the purchase of this high yield
debt for its own commercial lending and thereby avoid the huge investment in such loan
departments.
THE LEGITIMATE CONCERNS OF MANAGERS
Conflicts of Interest and Increased Costs to Managers
The interests of corporate managers are not the same as the interests of
corporations as organizations, and conflicts of interest can become intense when major
changes in the organization's strategy are required. Competition causes change, and
change creates winners and losers, especially in that branch of the managerial labor
market called the takeover market.
Managers' private incentives sometimes run counter to overall efficiency.
The costs of takeovers have fallen as the legal and financial skills of participants in the
takeover market have become more sophisticated, as the restrictions on takeovers
imposed by antitrust laws have been relaxed, and as financing techniques have improved.
Except for new regulatory constraints on the use of debt, this means that the largest of the
Fortune 500 companies are now potentially subject to takeover. The abolition of mere
size as a deterrent to takeover is desirable because it has made possible the realization of
large gains from reallocating larger collections of assets to more productive uses.
This new susceptibility to takeover has created a new contracting environment for
top-level managers. Many managers are legitimately anxious, and it will take time for
the system to work out an appropriate set of practices and contracts reflecting the risks
and rewards of the new environment. Some of the uncertainty of top-level managers
formerly insulated from pressures from the financial markets will fade as they learn how
their policies affect the market value of their companies.
The Desirability of Golden Parachutes
Unfortunately, a major component of the solution to the conflict of interest
between shareholders and managers has been vastly misunderstood. I am referring to

severance contracts that compensate managers for the loss of their jobs in the event of a
change in control -- what have been popularly labeled "golden parachutes."
These contracts are clearly desirable, even when judged solely from the viewpoint
of the interests of shareholders, but they are also efficient from a social viewpoint. When
correctly implemented they help reduce the conflicts of interest between shareholders and
managers at times of takeover and therefore make it more likely that the productive gains
stemming from changes in control will be realized. The evidence indicates that stock
prices of firms that adopt severance-related compensation contracts for managers on
average rise about 3 percent when adoption of the contracts is announced.45 There is no
easy way to tell how much of this could be due to the market interpreting the
announcement as a signal that a takeover bid is more likely and how much is due to the
reduction in conflict between managers and shareholders over takeovers.
At times of takeover, shareholders are implicitly asking the top-level managers of
their firm to negotiate a deal for them that frequently involves the imposition of large
personal costs on the managers and their families. These involve substantial moving
costs, the loss of position, power, and prestige, and even the loss of their jobs.
Shareholders are asking the very people who are most likely to have invested
considerable time and energy (in some cases a life's work) in building a successful
organization to negotiate its sale and the possible redirection of its resources.
It is important to face these conflicts and to structure contracts with managers to
reduce them. It makes no sense to hire a realtor to sell your house and then penalize him
for doing so. Yet that is the implication of many of the emotional reactions to control-
related severance contracts. The restrictions and tax penalties imposed on these
severance payments by the Deficit Reduction Act of 1984 are unwise interferences in the
contracting freedoms of shareholders and managers; and they should be eliminated.
Moreover, it is important to eliminate the misunderstandings about the purpose and
effects of these contracts that has been fostered by past rhetoric on the topic so that
boards of directors can get on with the job of structuring these contracts.
Golden parachutes can also be used to restrict takeovers and to entrench managers
at the expense of shareholders. How does one tell whether a particular set of contracts
crosses this line?
The key is whether the contracts help solve the conflict-of-interest problem
between shareholders and managers that arises over changes in control. Solving this
45
See R. Lambert and D. Larcker, "Golden Parachutes, Executive Decision-Making, and Shareholder
Wealth", Journal of Accounting and Economics, V. 7 (April 1985), pp. 179-204.
problem requires extending control-related severance contracts beyond the chief
executive to those members of the top-level management team who must play an
important role in negotiating and implementing any transfer of control. Contracts that
award severance contracts to a substantial number of managers beyond this group are
unlikely to be in the shareholders' interests. The contracts awarded by Beneficial Corp.
to 234 of its managers are unlikely to be justified by analysis as in the shareholders'
interests.46
It is particularly important to institute severance-related compensation contracts in
situations where it is optimal for managers to invest in organization-specific human
capital--that is, in skills and knowledge that have little or no value in other organizations.
Managers will not so invest where the likelihood is high that their investment will be
eliminated by an unexpected transfer of control and the loss of their jobs. In such
situations the firm will have to pay for all costs associated with the creation of such
organization-specific human capital, and it will be difficult to attract and retain highly
talented managers when they have better opportunities elsewhere. In addition, contracts
that award excessive severance compensation to the appropriate group of managers will
tend to motivate managers to sell the firm at too low a price.
No simple rules can be specified that will easily prevent the misuse of golden
parachutes because the appropriate solution will depend on many factors that are specific
to each situation (for example, the amount of stock held by managers, and the optimal
amount of investment in organization-specific human capital). In general, contracts that
award inappropriately high payments to a group that is excessively large will reduce
efficiency and harm shareholders by raising the cost of acquisition and by transferring
wealth from shareholders to managers. The generally appropriate solution is to make the
control-related severance contracts pay off in a way that is tied to the premium earned by
46
Ann Morrison, "Those Executive Bailout Deals," Fortune, (December 13, 1982).
the stockholders. Stock options or restricted stock appreciation rights that pay off only in
the event of a change in control are two options that have some of the appropriate
properties. In general, policies that encourage increased stock ownership by managers
and the board of directors will provide incentives that will tend to reduce the conflicts of
interests with managers.
TARGETED REPURCHASES
The evidence indicates takeovers generate large benefits for shareholders. Yet virtually
all proposals to protect shareholders from asserted difficulties in the control market will harm
them by either eliminating or reducing the probability of successful hostile tender offers. These
proposals will also block the productivity increases that are the source of the gains.
Most proposals to restrict or prohibit targeted repurchases (transactions that are
pejoratively labeled “greenmail”) are nothing more than antitakeover proposals in
disguise. Greenmail is an appellation that suggests blackmail; yet the only effective
weapon possessed by a greenmailer is the right to offer to purchase stock from other
shareholders at a substantial premium. The "damage" to shareholders caused by this
action is difficult to find. Those who propose to "protect" shareholders hide this fact
behind emotional language designed to mislead. Greenmail is actually a targeted
repurchase, an offer by management to repurchase the shares of a subset of shareholders
at a premium, an offer not made to other shareholders.
Greenmail is the Trojan horse of the takeover battle in the legal and political
arenas. Antitakeover proposals are commonly disguised as anti-greenmail provisions.
Management can easily prohibit greenmail without legislation: it need only announce a
policy that, like Ulysses tying himself to the mast, prohibits management or the board
from making such payments.47
PROBLEMS IN THE DELAWARE COURT
Delaware courts have created over the years a highly productive fabric of corporate law
that has benefited the nation. The court is having difficulty, however, in sorting out the complex
issues it faces in the takeover area. The court's problems in settling conflicts between
shareholders and management over control issues reflect a fundamental weakness in its model of
the corporation, a model that has heretofore worked quite well. The result has been a confusing
set of decisions that, in contrast to much of the court's previous history, appear to make little
economic sense.48
Altruism and the Business Judgment Rule
The Delaware court's model of the corporation is founded in the business
judgment rule—the legal doctrine that holds that unless explicit evidence of fraud or self-
47
Three excellent studies of these transactions indicate that when measured from the initial toehold
purchase to the final repurchase of the shares, the stock price of target firms rises. Therefore, shareholders
are benefited, not harmed, by the whole sequence of events. (See Clifford Holderness and Dennis Sheehan,
"Raiders or Saviors: The Evidence on Six Controversial Investors," Journal of Financial Economics
(December, 1985), Wayne H. Mikkelson, and Richard S. Ruback, "An Empirical Analysis of the Interfirm
Equity Investment Process," Journal of Financial Economics, V.14 (December, 1985), and Wayne H.
Mikkelson and Richard S. Ruback, "Targeted Repurchases and Common Stock Returns", (unpublished
manuscript, June, 1986). There is some indication, however, that the stock price increases might represent
the expectation of future takeover premiums in firms in which the targeted repurchase was not sufficient to
prevent ultimate takeover of the firm. If so, it may well be that, much as in the final defeat of tender offers
found by Bradley, Desai and Kim (Michael Bradley, Anand Desai and E. Han Kim, "The Rationale Behind
Interfirm Tender Offers: Information or Synergy?" Journal of Financial Economics, V.11 (April, 1983),
pp.183-206), all premiums are lost to those shareholders in firms for which the repurchase and associated
standstill agreements successfully lock up the firm. The evidence on these issues is not yet sufficient to
issue a final judgement either way.
48
See, for example, Moran v. Household Intl, Inc., 490 A.2d 1059 (Del. Ch.1985) aff'd 500 A.2d 1346
(Del, 1985) (upholding poison pill rights issue), Smith v Van Gorkom, 488 A.2d 858, (holding board liable
for damages in sale of firm at substantial premium over market price), Unocal v Mesa, 493 A.2d 946, 954
(Del. 1985) (allowing discriminatiory targeted repurchase that confiscates wealth of largest shareholder),
Revlon Inc. v MacAndrews & Forbes Holdings Inc, 506 A.2nd 173, 180 (Del. 1986), (invalidation of
Revlon's lockup sale of a prime division to Forstmann Little at a below-market price).
dealing exists the board of directors is presumed to be acting solely in the interests of
shareholders.…The courts must not apply the business judgment rule to conflicts over
control rights between principals and agents. If the business judgment rule is applied to
such conflicts, the courts are effectively giving the agent (management) the right
unilaterally to change the control rights. In the long run, this interpretation of the
contract will destroy the possibility of such cooperative arrangements, because it will
leave principals (stockholders) with few effective rights.
Recently the courts have applied the business judgment rule to the conflicts over
the issuance of poison pill preferred stock, poison pill rights, and discriminatory targeted
repurchases, and have given managers and boards the rights to use these devices.49 In
doing so the courts are essentially giving the agents (managers and the board) the right
unilaterally to change critical control aspects of the contract--in particular the right to fire
the agent. This has major implications for economic activity, productivity, and the health
of the corporation. If the trend goes far enough, the corporation as an organizational
form will be seriously handicapped.
Poison Pills
Poison pill securities change fundamental aspects of the corporate rules of the
game that govern the relationship between shareholders, managers, and the board of
directors. They do so when a control-related event occurs, such as a takeover offer or the
acquisition of a substantial block of stock or voting rights by an individual or a group.
The Household International version of the poison pill rights issue is particularly
interesting because it was a major test case in the area.
When the Household International board of directors issued its complicated
right to shareholders, it unilaterally changed the nature of the contractual relationship
49
Moran v Household Intl., and Unocal v Mesa.
with Household's shareholders in a fundamental way. The right effectively restricts the
alienability of the common stock by prohibiting shareholders from selling their shares,
without permission of the board, into a control transaction leading to merger at a price
that involves a premium over market value of about $6 billion. Since Household had a
market value of about $2 billion at the time, this was a premium of over 300 percent—
more than 6 times the average takeover premium of 50 percent common in recent times—
a premium that is difficult to justify as in the shareholders' interests.
The November 1985 Delaware court decision upholding the Household
International rights issue will significantly restrict hostile takeovers of firms that adopt
similar provisions. Before that decision, 37 pills of various forms had been adopted.
Over 150 corporations adopted pills in the seven months following that decision.50
Unlike most other antitakeover devices, this defense is very difficult for a prospective
acquirer to overcome without meeting the board's terms (at least one who desires to
complete the second-step closeout merger). An SEC study analyzed the 37 companies
introducing pills between June 1983, when Lenox introduced the first one, and December
1985. Eleven of these 37 firms experienced control changes: five experienced a
negotiated change in control while the pill was in effect (Revlon, Cluett Peabody, Great
Lakes, Int., Lenox, and Enstar), two were taken over by creeping acquisitions (Crown
Zellerbach and William Wright), two were taken over after their pills were declared
illegal (AMF and Richardson Vicks), one (Superior Oil) was acquired after the pill was
withdrawn in the face of a lawsuit and proxy fight by its largest holder, and one (Amsted)
has proposed a leveraged buyout. The SEC study finds that "Announcements of [twenty]
poison pill plans in the midst of takeover speculations have resulted in an average 2.4
percent net of market price declines for firms adopting the plans." The effects of another
50
See Office of the Chief Economist of the SEC, "The Economics of Poison Pills," (March 5, 1986), and
Corporate Control Alert, (February, March and April, May and June, 1986).
twelve plans adopted by firms that were not the subject of takeover speculation were
essentially nil.51
Sir James Goldsmith recently gained control of Crown Zellerbach, which had
implemented a rights issue similar to Household International's. Goldsmith purchased a
controlling interest in the open market after Crown's board opposed his tender offer and
refused to recall its rights issue. In this situation the acquirer must either tolerate the
costs associated with leaving the minority interest outstanding and forsake the benefits of
merging the assets of the two organizations, or incur the costs posed by the premium
required by the rights on execution of the second-step closeout merger. The Crown case
revealed a loophole in the Household/Crown version of the pill (which has been closed in
newly implemented versions). Although Goldsmith could not complete a second-step
merger without paying the high premium required by the rights, he could avoid it by
simply liquidating Crown.
Rights issues like Household's and Crown Zellerbach's harm shareholders.
They will fundamentally impair the efficiency of corporations that adopt them, and for
this reason they will reduce productivity in the economy if widely adopted.52
A broad interpretation of the business judgment rule is important to the
effectiveness of the corporation because a system that puts the courts into the business of
making managerial decisions will create great inefficiencies. The court has erred,
however, in allowing the Household board, under the business judgment rule, to make the
51
Ibid.
52
Another study of the effects of poison pills (Paul H. Malatesta and Ralph A. Walkling, "The Impact of
Poison Pill Securities on stockholder Wealth," (unpublished, University of Washington, 1985) also
indicates they have a negative effect on stock prices. On average, stock prices fell by a statistically
significant 2 percent in the 2 days around the announcement in the Wall Street Journal of adoption of a
poison pill for a sample of 14 firms that adopted these securities between December 1982 and February
1985. This price decline, however, was smaller than the average 7.5 percent increase in price that occurred
in the 10 days prior to the adoption of the pill. Firms adopting pills appear to be those in which managers
and directors bear a substantially smaller fraction of the wealth consequences of their actions. In all but
three of the firms the percentage of common shares owned by officer and directors was substantially below
the industry average ownership of shares. The average ownership of firms in the same industry was 16.5
percent and for the firms adopting pills it was 7.5 percent.
fundamental change in the structure of the organization implied by the rights issue
without votes of its shareholders. It is unlikely the court would allow the board to decide
unilaterally to make the organization a closed corporation by denying shareholders the
right to sell their shares to anyone at a mutually agreeable price without the permission of
the board. The Household International rights issue places such a restriction on the
alienability of shares, but only the case of a subset of transactions—the control-related
transactions so critical for protecting shareholders when the normal internal board-level
control mechanisms break down. Several other poison pill cases have been heard by the
courts with similar outcomes, but a New Jersey and two New York courts have recently
ruled against poison pills that substantially interfere with the voting rights of large-block
shareholders.53 An Illinois District Court recently voided a poison pill (affirmed by the
Seventh Circuit Court of Appeals) and two weeks later approved a new pill issued by the
same company.54
The problem with these special securities and the provisions they contain is not
with their appropriateness (some might well be desirable), but with the manner in which
they are being adopted--that is, without approval by shareholders. Boards of directors
show little inclination to refer such issues to shareholders.
One solution to the problems caused by the Household decision is for
shareholders to approve amendments to the certificate of incorporation to restrict the
board's power to take such actions without shareholder approval. This is not an easy task,
however, given the pressure corporate managers are bringing to bear on the managers of
53
Ministar Acquiring Corp. v AMF Inc., 621 Fed Sup 1252. So Dis NY, 1985, Unilever Acquisition Corp.
v Richardson-Vicks, Inc., 618 Fed Supp 407. So Dist. NY 1985, Asarco Inc. v M.R.H. Holmes a Court, 611
Fed Sup 468. Dist Ct of NJ, 1985, and Dynamics Corp. of America v CTS Corporation.
54
Dynamics Corp. of America v. CTS Corp., et al. U.S. District Court, Northern District of Illinois, Eastern
Division, No. 86 C 1624, (April 17, 1986), affirmed Seventh Circuit Court of Appeals Nos. 86-1601, 86-
1608, and Dynamics Corp. of America v. CTS Corp., et al. (May 3, 1986)
their pension funds to vote with management.55 Even more problematic is the provision in
Delaware law that requires certificate amendments to be recommended to shareholders
by the board of directors.56
Exclusionary Self Tenders: The Unocal v. Mesa Decision57
The Delaware Supreme Court surprised the legal, financial, and corporate
communities in the spring of 1985 by giving Unocal the right to make a tender offer for
29 percent of its shares while excluding its largest shareholder, Mesa Partners II, from the
offer. This decision enabled the Unocal management and board to avoid loss of control
to Mesa. The decision imposed large costs on Unocal shareholders and, if not reversed,
threatens major damage to shareholders of all Delaware corporations.
The Unocal victory over Mesa cost the Unocal shareholders $1.1 billion ($9.48
per post-offer share). This is the amount by which the $9.4 billion Mesa offer exceeded
the $8.3 billion value of Unocal's "victory."58 This loss is 18 percent of Unocal's pre-
takeover value of $6.2 billion. The $2.1 billion net increase in value to $8.3 billion
resulted from Unocal's $4.2 billion debt issue which, contrary to assertions, benefits its
shareholders. It does so by effectively bonding Unocal to pay out a substantial fraction of
its huge cash flows to shareholders rather than to reinvest them in low-return projects,
and by reducing taxes on Unocal and its shareholders.
55
See "Koleman, Joe, "The Proxy Pressure on Pension Fund Managers", Institutional Investor, (July,
1985), pp. 145-147, and Investor Responsibility Research Center, Inc., Corporate Governance Service:
Voting by Institutional Investors on Corporate Governance Questions, 1985 Proxy Season, pp. 19-25.
56
8 Del. C. § 242(c) (1).
57
This discussion is based on my article, "When Unocal Won over Pickens, Shareholders and Society
Lost," Financier, V.IX, No. 11 (Nov. 1985), p.50-53.
58
The $8.3 billion value of Unocal securities held by its shareholders is calculated as $4.1 billion in stock
(116 million shares at $34 7/8 on May 24, the first trading day after close of the offer), and $4.2 billion in
Unocal debt trading at $73.50.
For his services in creating this $2.1 billion gain for Unocal shareholders, T.
Boone Pickens has been vilified in the press, and Mesa Partners II has incurred net losses
before taxes—obviously a perversion of incentives.
In addition to Mesa's losses, shareholders of all Delaware corporations lose
because the court's decision gives management a weapon so powerful it essentially
guarantees that no Delaware corporation that uses it will be taken over by a tender offer.
A determined board could, in the extreme, pay out all the corporation's assets and leave
the acquirer holding a worthless shell. Because of this new power, shareholders are
denied the benefits of future actions by Pickens and others to discipline managers whose
strategies are wasting resources.
Society also loses. The decision will have a chilling effect on takeovers, blocking
the productivity increases that are the source of the takeover gains and thereby
handicapping Delaware corporations in the competition for survival.
Unocal's self-tender for 29 percent of its shares at $72 per share ($26 over the
market price) was designed to defeat Mesa's $54 per share cash offer for 50.4 percent of
Unocal's shares plus $54 per share in debt securities for the remaining 49.6 percent. The
Unocal offer would have paid 59 percent of Unocal's pretakeover equity to other
shareholders while denying participation to the 13.6 percent minority holding of Mesa
Partners II. This would transfer about $248 million from Mesa's holdings to other Unocal
stockholders—a classic case of corporate raiding that contrasts with the beneficial effects
of the actions of takeover specialists like Pickens, Carl Icahn, and Irwin Jacobs on other
shareholders.
Faced with the threat of legalized expropriation of $248 million, Mesa accepted a
settlement in which Unocal backed off from the Mesa exclusion. The settlement
involved repurchase of part of Mesa's shares at the terms of the tender offer, a 25-year
standstill agreement, a promise to vote its shares in the same proportion as other shares
are voted, and constraints on Mesa's rights to sell its remaining shares.
The essential characteristics of Unocal's exclusionary repurchase defense are now
incorporated in newly popular poison pill plans called back-end plans.59 These plans give
shareholders a right to tender their shares for securities worth more than the market value
of their stock when a shareholder exceeds a certain maximum limit of stock ownership
that ranges from 30 to 50 percent. As with Unocal's exclusion of Mesa, the large
shareholder is denied the same right to tender his shares. This threatens a shareholder
who violates the holding limit with potentially large dilution of his holdings. It thereby
limits the existence of large stock holdings.
"Protection" From Two-Tier Tender Offers. The court ruled that the objective
of Unocal's offer was to protect its shareholders against "a grossly inadequate and
coercive two-tier front-end-loaded tender offer" and against greenmail. This assessment
of the situation was upside down. Paradoxically, the court's ruling imposed on Unocal
shareholders exactly the evil it purported to prevent. Unocal defeated Mesa's $1.1 billion
higher offer precisely because Mesa's offer was a level $54 offer and Unocal's offer was
an extreme front-end-loaded two-tier offer--$72 for 29 percent of its shares in the front-
end with a back-end price of $35 for the remaining 71 percent of the shares. (The back-
end price was implicit, but easy to calculate and reported in the press at the time of the
offer). The effective price of the Unocal offer was therefore only $45.73 per pre-offer
share (the weighted average of the front- and back-end prices).
Comparing the Unocal offer with SEC estimates of average minimums in two-tier
tender offers indicates the extreme nature of the Unocal two-tier offer. Historically the
average back-end premium on outside two-tier offers is 45 percent higher than the stock
price measured 20 trading days prior to the offer.60 This contrasts sharply with the
59
See Office of the Chief Economist of the SEC, "The Economics of Poison Pills" (March 5, 1986).
60
See Comment, Robert, and Gregg A. Jarrell, "Two-Tier Tender Offers: The Imprisonment of the Free-
Riding Shareholder," (unpublished manuscript, March 1, 1986); an earlier version appeared as Office of the
Chief Economist, Securities and Exchange Commission, "The Economics of Any-or-All, Partial, and Two-
Tier Tender Offers,"Federal Register, June 29, 1984, pp. 26, 751-26,761.
negative back-end premium on Unocal's self tender of –25 percent. That is, the $35
back-end price was 25 percent below the Unocal market price of $46 3/8 twenty days
before the offer.
The negative back-end premium on Unocal's offer means the holders of 20
million Unocal shares who failed to tender to the first tier of the Unocal offer were
particularly hurt. As of the close of the offer they had suffered total losses of $382
million, $215 million from the loss of $37.12/share on 29 percent of their shares,61 plus a
loss of $167 million from being denied the $54 in debt securities they would have
received in the back end of the Mesa offer.62
Protection from Targeted Repurchases. The court also erred in its concern
over greenmail. In ruling to eliminate the threat of greenmail, the court in fact authorized
Unocal to make a greenmail transaction that differed from the usual variety only in that it
penalized, rather than benefited, the large-block holder (i. e., reverse greenmail). In
authorizing this form of targeted repurchase, the court granted large benefits to managers
who desire protection from competition but harmed shareholders.
One of the great strengths of the corporation is the long-held principle that holders
of a given class of securities are treated identically in transactions with the corporation.
The Unocal decision threatens to turn the corporation into a battleground where special-
interest groups of shareholders fight over the division of the pie much as special interests
in the public sector do. The result will be a much smaller pie.
Responsible boards of directors interested in the welfare of shareholders and the
survival of the corporation as an organizational form will implement procedures to ban
all targeted repurchases that carry premiums over market value.
61
Calculated as the $72 value of the Unocal debt offered in exchange for 29% of their shares less the
$34.875 post-offer closing price of the shares.
62
See Michael Bradley and Michael Rosensweig, "The Law and Economics of Defensive Stock
Repurchases and Defensive Self-Tender Offers," (Unpublished manuscript, University of Michigan, 1985)
for a thorough discussion of the issues involved in self tender offers.
CONCLUSION
Although economic analysis and the evidence indicate the market for corporate
control is benefiting shareholders, society, and the corporation as an organizational form,
it is also making life more uncomfortable for top-level executives. This discomfort is
creating strong pressures at both the state and federal levels for restrictions that will
seriously cripple the workings of this market. In 1985 there were 21 bills on this topic in
the Congressional hopper, all of which proposed various restrictions on the market for
corporate control. Some proposed major new restrictions on share ownership and
financial instruments. Within the past several years the legislatures of numerous states
have passed antitakeover laws. This political activity is another example of special
interests using the democratic political system to change the rules of the game to benefit
themselves at the expense of society as a whole. In this case the special interests are top-
level corporate managers and other groups who stand to lose from competition in the
market for corporate control. The result will be a significant weakening of the
corporation as an organizational form and a reduction in efficiency.
APPENDIX: Evidence From Financial Transactions in Support of the

Free Cash Flow Theory of Mergers
Free cash flow theory helps explain previously puzzling results on the effects of various
financial transactions. Smith [1986]* summarizes more than twenty studies of stock-price
changes at announcements of transactions that change capital structure as well as various other
dividend transactions. These results and those of others are summarized in Table 2.
For firms with positive free cash flow, the theory predicts that stock prices will
increase with unexpected increases in payouts to shareholders and decrease with
*
See Cliff Smith, “Investment Banking and the Capital Acquisition Process,” Journal of Financial
Economics 15 (1986) for references to all studies cited in this Appendix.
unexpected decreases in payouts. It also predicts that unexpected increases in demand
for funds from shareholders via new issues will cause stock prices to fall. In addition, the
theory predicts stock prices will increase with increasing tightness of the constraints
binding the payout of future cash flow to shareholders and decrease with reductions in the
tightness of these constraints. These predictions do not apply, however, to those firms
with more profitable projects than free cash flow to fund them.
The predictions of the agency cost of free cash flow are consistent with all but
three of the 32 estimated abnormal stock price changes summarized in Table 2.
Moreover, one of the inconsistencies is explainable by another phenomenon.
Panel A of Table 2 shows that stock prices rise by a statistically significant
amount with announcements of the initiation of cash dividend payments, increases in
dividends, and payments of specially designated dividends; they fall by a statistically
significant amount with decreases in dividend payments. (All coefficients are
significantly different from zero unless noted with an asterisk.)
Panel B of Table 2 shows that security sales and retirements that raise cash or pay
out cash and simultaneously provide offsetting changes in the constraints bonding the
payout of future cash flow are all associated with returns insignificantly different from
zero. The insignificant return on retirement of debt fits the theory because the payout of
cash is offset by an equal reduction in the present value of promised future cash payouts.
If debt sales are associated with no changes in the expected investment program, the
insignificant return on announcements of the sale of debt and preferred also fits the
theory. The acquisition of new funds with debt or preferred is offset exactly by a
commitment bonding the future payout of cash flows of equal present value.
Panel C shows that sales of convertible debt and convertible preferred are
associated with significantly negative stock price changes. These security sales raise
cash and provide little effective bonding of future cash flow payments for the following
reason: when the stock into which the debt is convertible is worth more than the face
value of the debt, management has incentives to call them and force conversion to
common.
Panel D shows that, with one exception, security retirements that pay out cash to
shareholders increase stock prices. The price decline associated with targeted large block
repurchases (often called “greenmail”) is highly likely to be due to the reduced
probability that a takeover premium will be realized. These transactions are often
associated with standstill agreements in which the seller of the stock agrees to refrain
from acquiring more stock and from making a takeover offer for some period into the
future.
Panel E summarizes the effects of security sales and retirements that raise cash
and do not bond future cash flow payments. Consistent with the theory, negative
abnormal returns are associated with all such changes. However, the negative returns
associated with the sale of common through a conversion-forcing call are statistically
insignificant.
Panel F shows that all exchange offers or designate-use security sales that
increase the bonding of payout of future cash flows result in significantly positive
increases in common stock prices. These include stock repurchases and exchange of debt
or preferred for common, debt for preferred, and income bonds for preferred. The two-
day gains range from 21.9 percent (debt for common) to 2.2 percent (debt or income
bonds for preferred).
Panel G of Table 2 shows that the evidence on transactions with no cash flow and
no change in the bonding of payout of future cash flows is mixed. The returns associated
with exchange offers of debt for debt are significantly positive, and those for designated-
use security sales are insignificantly different from zero.
Panel H of Table 2 shows that all exchanges, or designated-use security sales that
have no cash effects but reduce the bonding of payout of future cash flows result, on
average, in significant decreases in stock prices. These transactions include the exchange
of common for debt or preferred or preferred for debt, or the replacement of debt with
convertible debt. The two-day losses range from –9.9% (common for debt) to –2.4% (for
designated-use security sale replacing debt with convertible debt).
In summary, the results in Table 2 are remarkably consistent with free cash flow
theory, which predicts that, except for firms with profitable unfunded investment
projects, prices will rise with unexpected increases in payouts to shareholders (or
promises to do so) and will fall with reductions in payments or new requests for funds
from shareholders (or reductions in promises to make future payments). Moreover, the
size of the value changes is positively related to the change in the tightness of the
commitment bonding the payment of future cash flows. For example, the effects of debt-
for-preferred exchanges are smaller than the effects of debt-for-common exchanges.
Tax effects can explain some of these results, but not all--for example, the price
changes associated with exchanges of preferred for common or replacements of debt with
convertible debt, neither of which have any tax effects. The last column of Table 2
denotes whether the individual coefficients are explainable by these pure corporate tax
effects. The tax theory hypothesizes that all unexpected changes in capital structure
which decrease corporate taxes increase stock prices and vice versa. Therefore, increases
in dividend and reductions of debt interest should cause stock prices to fall and vice
versa. Thirteen of the 32 coefficients are inconsistent with the corporate tax hypothesis.
Simple signaling effects, where the payout of cash signals the lack of present and future
investments that promise returns in excess of the cost of capital, are also inconsistent with
the results—for example, the positive stock price changes associated with dividend
increases and stock repurchases.
If anything, the results in Table 2 seem too good. The returns summarized in the
table do not distinguish firms that have free cash flow from those that do not have free
cash flow. Yet the theory tells us the returns to firms with no free cash flow will behave
differently from those who do. In addition, only unexpected changes in cash payout or
the tightness of the commitments bonding the payout of future free cash flows should
affect stock prices. The studies summarized in Table 2 do not, in general, control for the
effects of expectations. If the free cash flow effects are large and if firms on average are
in a positive free cash flow position, the predictions of the theory will hold for the simple
sample averages. If the effects are this pervasive, the waste due to agency problems in
the corporate sector is greater than most scholars have thought. This helps explain the
high level of activity in the corporate control market over the last decade. More detailed
tests of the propositions that control for growth prospects and expectations will be
interesting.
Table 2 Type of transaction Security issued Security retired

The Stock Market PANEL A Dividend changes which change the cash paid to shareholders
Response to Various Dividend initiation1
Dividend and Capital Dividend increase2
Structure Specially designated dividend3
Transactions
Summary of two-day average Dividend decrease2
abnormal stock returns PANEL B Security sales (that raise cash) and retirements (that pay out cash) and simultaneously
associated with the Security sale (industrial)4 debt none
announcement of various Security sale (utility)5 debt none
Dividend and Capital structure Security sale (industrial)6 preferred none
transactions Security sale (utility)7 preferred none
Call8 none debt
Returns are weighted PANEL C Security sales which raise cash and have little effective bonding of future cash flow payments only minimally
averages, by sample size, of Security sale (industrial)4 conv. debt none
the returns reported by the Security sale (industrial)7 conv. preferred none
respective studies. All returns Security sale (utility)7 conv. preferred none
are significantly different from PANEL D Security retirements which pay out cash to shareholders
zero unless noted otherwise Tender offer9 none common
by.* Open market purchase10 none common
Targeted small holdings11 none common
Targeted large block repurchase12 none common
PANEL E Security sales or calls that raise cash and do not bond future cash flow payments
Security sale (industrial)13 common none
Security sale (utility)14 common none
Conversion-forcing call20 common conv. preferred
Conversion-forcing call20 common conv. debt
PANEL F Exchange offers, or designated use security sales which increase the bonding of payout of
Designated use security sale15 debt common
Exchange offer16 debt common
Exchange offer16 preferred common
Exchange offer16 debt preferred
Exchange offer17 income bonds preferred
PANEL G Transaction with no change in bonding of payout of future cash flows
Exchange offer18 debt debt
Designated use security sale19 debt debt
PANEL H Exchange offers, or designated use security sales that decrease the bonding of payout
Security sale19 conv. debt debt
Exchange offer16 common preferred
Exchange offer16 preferred debt
Security sale19 common debt
Exchange offer21 common debt
1 Asquith and Mullins [1983].
2 Calculated by Smith [1986, Table 1] from Charest [1978], and Aharony and Swary [1980].
3 From Brickley [1983].
4 Calculated by Smith [1986, Table 1] from Dann and Mikkelson [1984], Eckbo [1986], Mikkelson and Partch [1986].
5 Eckbo [1986].
6 Calculated by Smith [1986, Table 1] from Linn and Pinegar [1985], Mikkelson and Partch [1986].
7 Linn and Pinegar [1985].
8 Vu [1986].
9 Calculated by Smith [1986, Table 1] from Dann [1981], Masulis [1980], Vermaelen [1981], Rosenfeld [1982].
10 Dann [1980], Vermaelen [1981].
11 Bradley and Wakeman [1983].
12 Calculated by Smith [1986, Table 4] from Dann and DeAngelo [1983], Bradley and Wakeman [1983].
13 Calculated by Smith [1986, Table 1] from Asquith and Mullins [1986], Kolodny and Suhler [1985], Masulis and Korwar [1986],
Mikkelson and Partch [1986], Schipper and Smith [1986].
Average Average Abnormal Two-Day Sign Predicted By Agreement With Free Agreement With
Sample Size Announcement Period Return Free Cash Flow Theory Cash Flow Theory? Tax Theory
160 3.7% + yes no

281 0.9 + yes no
164 2.1 + yes no
48 –3.6 – yes no
provide off-setting changes in the constraints bonding future payment of cash flows.
248 –0.2* 0 yes no
140 –0.1* 0 yes no
28 –0.1* 0 yes yes
249 –0.1* 0 yes yes
133 –0.1* 0 yes no
74 –2.1 – yes no
54 –1.4 – yes no
9 –1.6 – yes no
147 15.2 + yes yes

182 3.3 + yes yes
15 1.1 + yes yes
68 –4.8 + no** no**
215 –3.0 – yes yes

405 –0.6 – yes yes
57 –0.4* – no yes
113 –2.1 – yes yes
Future cash flows
45 21.9 + yes yes
52 14.0 + yes yes
9 8.3 + yes no
24 3.5 + yes yes
18 1.6 + yes yes
36 0.6 0 no no
96 0.2* 0 yes yes
of future cash flows
15 –2.4 – yes yes
23 –2.6 – yes no
9 –7.7 – yes yes
12 –4.2 – yes yes
81 –1.1 – yes yes
14 Calculated by Smith [1986, Table 1] from Asquith and Mullins [1986], Masulis and Korwar [1986], Pettway and Radcliffe [1985].
15 Masulis [1980].
16 Masulis [1983]. These returns include announcement days of both the original offer and, for about 40 percent of the sample,
a second announcement of specific terms of the exchange.
17 McConnell and Schlarbaum [1981].
18 Dietrich [1984].
19 As calculated by Smith [1986, Table 3] from Eckbo [1986], Mikkelson and Partch [1986].
20 Mikkelson [1981].
* Not statistically different from zero.
** Explained by the fact that these transactions are frequently associated with the termination of an actual or expected control
bid. The price decline appears to reflect the loss of an expected control premium.

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THE TAKEOVER CONTROVERSY:

ANALYSIS AND EVIDENCE

The following topics are discussed:

© Copyright 2006. Allan Scherr, Michael C. Jensen. All rights reserved

Midland Corporate Finance Journal, Volume 4, No. 2, Summer 1986

The market for corporate control is fundamentally changing the corporate

exceeded a billion dollars in 1985, compared with 18 in 1984.2 These transactions

of assets and helps move assets to more productive uses.

The controversy has been accompanied by strong pressure on regulators and

restricts the use of debt in takeovers.

Through dozens of studies, leading financial economists have accumulated

previous work tells us the following:

• Takeover gains do not come from the creation of monopoly power.

market for corporate control—analysis which provides an understanding of the conflicts

The following topics are discussed:

THE MARKET FOR CORPORATE CONTROL--BACKGROUND

The Benefits of Takeovers

takeover side and the divestiture side.

to be for cash and mergers tend to be for stock).8

acquisition benefits to selling shareholders. In addition, federal and state regulation of

target-firm shareholders increased substantially after introduction of such regulation.10

Causes of Current Takeover Activity

The current high level of takeover activity seems to be caused by a number of

takeover activity than their representation in the economy as a whole.

Mining and minerals 4.4 1.5

Leisure and entertainment 2.3 .9

important role in accomplishing these changes. Deregulation of the financial services

Takeovers Provide Competition for Top-Level Management Jobs

for the rights to manage corporate resources.11 Understanding this is crucial to

understanding much of the rhetoric about the effects of hostile takeovers.

Managers formerly protected from competition for their jobs by antitrust

more demanding environment and a more uncertain future.

investment-grade bonds (“junk” bonds), has removed size as a significant impediment to

problems caused by the increased uncertainty in their contracting environment.

Takeovers Provide External Control

Other management teams that recognize an opportunity to reorganize or redeploy an

and redeployment of the assets.

The Market for Corporate Control Is an Agent for Change

Takeovers generally occur because changing technology or market conditions

survival. Such changes often require abandonment of major projects, relocation of

facilities, changes in managerial assignments, and closure or sale of facilities or divisions.

communities to make such changes. Moreover, normal organizational resistance to

the TWA unions to negotiate favorable contract concessions with Icahn—concessions

increases the likelihood of mistakes.

parts of organizations that could be used productively by others.

board-level control mechanisms are slow, clumsy, or defunct.

Divestitures Are the Subject of Much Erroneous Criticism

for analysis or evidence.

Moreover, it is important to recognize that divested plants and assets do not

more productive. This is beneficial to society.

together uneconomic conglomerates and to break up existing ones. This is now

to actions similar to those proposed by potential acquirers. Examples are the

other payments to stockholders. Unfortunately, the basic economic sense of these

transactions is often lost in a blur of emotional rhetoric and controversy.

American Home Products after a takeover bid by Whittaker (apparently motivated by a

desire to acquire Sherwood) is an example of such a transaction. The total value to

than Whittaker's offer for the entire company.13

Managers May Behave Myopically But Markets Do Not

takeover cause managers to behave myopically and therefore to sacrifice long-term

near-term cash flows (myopic markets).

change in corporate cash flows.16

Additional evidence is provided by the 30 percent increase in ARCO's stock price

result of the restructuring, the market still responded positively.