NQ Mobile Inc (ADR) (NYSE:NQ) has been the focus of public scrutiny since notorious short selling firm Muddy Waters accused it of fraudulent practices. Since then, many well-known funds have taken up or added to their positions in support of NQ and against Muddy Waters. Before the short selling firm targeted NQ Mobile, shares were on track to climb nearly 400% this year.
So what exactly is the deal with NQ Mobile Inc (ADR) (NYSE:NQ)? Is there a big problem with its accounting practices, or not? Because of the questions surrounding the company, any changes it makes at the corporate level are being scrutinized by investors, one of whom directed our attention to a change the company is proposing in its bylaws. The person questioned the implications of the proposal, should it pass.
NQ Mobile proposes some changes to its bylaws
The day after Thanksgiving, NQ Mobile filed a regulatory document with the Securities and Exchange Commission revealing the proposed changes and announcing its annual meeting on Dec. 23. At that meeting, shareholders will have to vote on a change to the incentive plan for the founders. Here is the proposed change word-for-word from the regulatory document:
According to a recent interview, Corsair Capital's founder Jay Petschek did not plan to be a hedge fund manager. After holding various roles on Wall Street, Petschek decided to launch the fund in January 1991, when his family and friends were asking him to buy equities on their behalf. He realized the best structure for Read More
‘Upon any sale, pledge, transfer, assignment or disposition of Class B Common Shares by a holder thereof to any person or entity which is not an Affiliate of such holder or a Founder or an Affiliate of one or more Founders, each such Class B Common Share shall be automatically and immediately converted into one Class A Common Share; provided that (a) except as set forth in Article 6(d)(iv) below, a change in the beneficial ownership of Class B Common Shares from a holder of Class B Common Shares to an Affiliate of such holder or to a Founder or an Affiliate of one or more Founders shall not cause a conversion under this Article 6(d)(iii) and (b) any sale, pledge, transfer, assignment or disposition of Class B Common Shares by a holder thereof effected as part of the creation of any security interest or other encumbrance over such Class B Common Shares (including, without limitation, any transfer of legal title to such Class B Common Shares effected as part of the creation of any security interest or other encumbrance over such Class B Common Shares) shall be exempt from, and shall not trigger, the automatic conversion contemplated under this Article 6(d)(iii) unless and until the legal title to such Class B Common Shares is transferred to any person or entity which is not an Affiliate of such holder (or a Founder or an Affiliate of one or more Founders) as a result of the enforcement of such security interest or other encumbrance. In addition, if at any time more than fifty percent (50%) of the ultimate beneficial ownership of any holder of Class B Common Shares (other than a Founder or an Affiliate of one or more Founders) changes, each such Class B Common Share shall be automatically and immediately converted into one Class A Common Share. For the avoidance of doubt, the sale, pledge, transfer, assignment or disposition of Class B Common Shares by a holder thereof to any of the following shall be exempt from, and shall not trigger, the automatic conversion contemplated under this Article 6(d)(iii): (i) a Founder or an Affiliate of one or more Founders or (ii) an Affiliate of such holder. For the purposes of these Articles, “Founders” means each of Dr. Henry Yu Lin, Dr. Vincent Wenyong Shi and Mr. Xu Zhou and “Founder” means any one thereof.’
The main issue in this proposed change is whether the founders of NQ Mobile Inc (NYSE:NQ) are doing this in order to be able to pledge their shares as collateral for personal loans without those super voting Class B shares being converted to standard Class A shares immediately. Attorney Howard E. Berkenblit of Boston law firm Sullivan and Worcester told ValueWalk that the proposed change by NQ Mobile appears to allow the founders to do this—unless they should default on their loan, thus transferring the shares to the lender, upon which they would automatically convert to Class A shares.
“On the proposed charter changes, they appear to create greater flexibility for the Founders to move around shares both among themselves and their affiliates, including pledging the shares absent a default, without triggering the conversion features,” Berkenblit said. “Whether this was to clarify the provision because someone (such as a pledgee bank) thought the provision was ambiguous and needed to be clarified, or was proposed because the founders wanted more flexibility to use their shares to secure loans and felt the current articles prevented that or was for some more nefarious reason, I can’t tell.”
Of course a mere pledge of shares for a personal loan isn’t a problem. It’s the defaulting on the loan which would be a problem, and at this point, we have no idea of the intent, if any, of NQ Mobile Inc (NYSE:NQ)’s founders. There have been major cases of pledging like this causing serious problems for companies, such as in the cases of notorious former Chesapeake Energy Corporation (NYSE:CHK) CEO Aubrey McClendon and Green Mountain Coffee Roasters Inc (NASDAQ:GMCR) founder Bob Stiller.
The problem is if executives put up shares of their company as collateral for personal loans and then are unable to pay those loans back, the lender gains control of them. At that point, the lender could sell the shares to cover the loan, thus flooding the market. Investors should note that in the case of NQ Mobile, this is still a big IF statement. However, Berkenblit also says this proposed change by NQ Mobile is the opposite of what many of his clients are doing.
“In today’s climate, most of my clients are going the other way in prohibiting pledges, cutting back, just because of the way it looks,” Berkenblit told ValueWalk. “They don’t want to risk being the next Green Mountain or Chesapeake.”
SEC rule doesn’t apply to NQ Mobile
Because of high-profile cases like Chesapeake Energy and Green Mountain Coffee, there is a lot of scrutiny when it comes to insiders pledging their shares for personal loans. The influential shareholder advisory firm Institutional Shareholder Services recently changed its guidelines to be against insiders pledging their shares for loans because of these high-profile cases.
Also, the Securities and Exchange Commission now requires insiders to file a document stating that they have pledged shares for a loan if and when they do that. However, Berkenblit says this rule does not apply to NQ Mobile Inc (ADR) (NYSE:NQ) because the company is a China-based company which is trading on the New York Stock Exchange as an American Depository Receipt.
NQ Mobile’s change looks to some like standard housekeeping
Not everyone is questioning the motives of NQ Mobile’s founders, however. Other investors seem to have already dismissed the question about pledging shares. One of them questioned the change on Shareholders Unite, a forum for discussing such topics. Some forum participants chimed in, saying it looks like nothing but ordinary housekeeping and that normally something like this would have been handled at the time of the initial public offering. One securities lawyer who spoke with ValueWalk tends to agree with them. Braden Perry of Kansas City law firm Kennyhertz Perry told us he doesn’t see anything that’s necessarily suspicious in the changes NQ Mobile is proposing.
“Obviously, taking out company shares for personal loans is shrouded in material risk and potential conflicts of interest,” Perry said. “And because there are accusations that NQ Mobile, Inc. has issued false and misleading statements and failing to disclose materially adverse factors related to market share, any corporate governance changes will likely be met with scrutiny. The Company’s Articles of Association change, however, is generally consistent with public company bylaws regarding any sale or transfer of a preferred class of shares.”a
We have reached out to NQ Mobile for a comment on this story. One was not immediately provided, but we will post an update if or when they reply to our request.
DISCLOSURE: I have no position in NQ Mobile Inc (NYSE:NQ) and no intention to initiate a position in the company in the near future. Investors are advised to do their own due diligence when making decisions on any investment.