The Iliad And The IPO: Corporate Legacy

Andrew A. Schwartz

University of Colorado Law School

July 20, 2015

Harvard Business Law Review, Vol. 5, No. 2, pp. 237-80, 2015

U of Colorado Law Legal Studies Research Paper No. 15-10

Abstract:

Throughout human history, people have sought to overcome the human condition and achieve the only form of immortality reasonably available to us: a legacy that “lives on” after we are gone. Legacies can be established in countless ways, including art (Leonardo da Vinci), literature (William Shakespeare), and athletics (Babe Ruth). The corporate form, though not previously recognized as such, can likewise serve as a vehicle for achieving an enduring legacy because corporations are endowed by the law with “perpetual existence.”

Publicly traded corporations in particular are well suited for this purpose, given the significant social and cultural role they play. Once a company goes public in an IPO, however, it suddenly becomes vulnerable to takeovers, which can end its corporate existence and thereby any hope of an enduring legacy. This unwelcome fate can be avoided, however, if a company goes public with powerful takeover defenses in place — which practically all do, according to new data presented here. Mature public companies, by contrast, are controlled by people who joined the board long after the IPO. These directors lack the same passion for the company’s independent existence because, unlike the pre-IPO shareholders, their legacy is not tied to the company. Accordingly, a mature public company may be amenable to abandoning its takeover defenses.

The data presented here shows that practically all new public companies — those launching their initial public offering (IPO) — go public with powerful takeover defenses in place. This behavior is puzzling because the adoption of takeover defenses presumably lowers the price at which the pre-IPO shareholders can sell their own shares in and after the IPO. Why would founders and early investors engage in this seemingly counterproductive behavior? This Article claims that IPO firms adopt takeover defenses, at least in part, so that they can remain independent indefinitely and create corporate legacies that last for generations.

The Iliad And The IPO: Corporate Legacy – Introduction

The conventional wisdom among corporate law scholars is that the presence of corporate takeover defenses lowers the value of a public company because it insulates management from the disciplining effect of the market for corporate control. If this is correct, one would expect to see companies launch their IPOs with no such defenses in place.1 The pre-IPO shareholders have a strong incentive to maximize the value of the shares to be sold in the IPO and are in position to control whether the corporation will adopt takeover defenses. Surprisingly, however, the data presented in this Article shows that essentially all modern companies go public with takeover defenses in place, and the vast majority of them adopt the most effective defense in the modern arsenal, the effective staggered board (ESB).

What can explain this seemingly incongruous behavior on the part of IPO firms and their shareholders? Building on previous attempts to solve this puzzle by Lucian Bebchuk, John Coates, Michael Klausner, and Lynn Stout, this Article makes the novel claim that takeover defenses at IPO firms are premised, in part, on the human quest for immortality and the perpetual nature of the corporate form.

It is impossible to overcome the human condition and live forever, but people can live on, in a sense, through the legacy they leave. In ancient Greece, warriors sought to fight gallantly on the battlefield so their names and exploits would be forever sung in epic poems like the Iliad. Thereby they might achieve immortality of a sort. In the modern world, people seek legacies in other ways, such as a scientist whose name is used as a unit of measurement, an athlete whose number is retired, or a movie star whose autograph is enshrined on the Hollywood Walk of Fame.

One important but previously unrecognized vehicle for leaving a lasting legacy is the corporate form, because corporations are endowed by law and charter with “perpetual existence.”2 A corporation cannot get sick or injured; it has the capacity to live forever. Hence, one way to achieve an enduring legacy is to organize, promote, or invest in a corporation that continues to persist for generations.

Publicly traded companies are especially well suited for this purpose due to their special social and cultural significance. Coca-Cola, Ford, and Facebook are more than economic entities; they are part of the fabric of our society. A person who wants to make a mark on history would therefore be inclined to take her company public. But public companies, unlike private ones, are vulnerable to hostile takeovers, which can end a corporation’s existence and thus destroy its ability to advance a legacy. Takeover defenses can ameliorate this concern.

After a company has been public for some time, however, its board of directors will inevitably consist of people who joined the board long after the IPO. Such a board is less interested in the company’s continued existence because these later directors’ legacies are less intertwined with the company, unlike those of the directors at the time of the IPO. When pressured, or asked, they are understandably more willing to disarm the defenses. This Article’s explanation helps solve the mystery of why firms adopt takeover defenses at the IPO stage only to later abandon them.

The Iliad And The IPO: Corporate Legacy

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