The rise of shareholder activism—what you need to know

Abstract

The past few years have seen a dramatic rise in shareholder activism in Europe and the US and it is a trend becoming more common in Australia. Companies operating in the oil and gas sector have been subject to particular attention and there are a growing number of examples of this in Australia.

The targets of shareholder activism range in size and performance, but are often companies with perceived board weakness, those that are considered to adhere to outdated corporate governance, those whose strategic direction is in question or those that have an under-performing share price, though other factors can also be relevant. Using these issues or concerns as a pretext, activists are increasingly focused on using tactics that allow them to exert control or exercise influence to realise returns or agitate for change in companies that:

1. have significant assets (such as oil and gas reserves) relative to their market value;

2. have high costs, large capital expenditures and long revenue generation lead time (such as exploration projects); or,

3. operate in low growth or fluctuating markets (such as with the price of oil and gas).

Unsurprisingly, the oil and gas sector is being increasingly seen by certain funds and investors as fertile ground for shareholder activism.

The Australian legal landscape also presents shareholders with a platform from which to exert influence. For instance:

1. shareholders are able to requisition general meetings (and resolutions to be put to those meetings) if they hold sufficient shares and put the entire board up for re-election following the introduction of the two strikes rule; and,

2. directors are required to adhere to statutory and common law duties in responding to shareholders.

Shareholder activist campaigns are often played out in public and can be highly disruptive to companies’ operations. Accordingly, directors and senior management of oil and gas companies should be aware of shareholder activism in Australia and, in the broader interests of all shareholders and their company, consider how they should respond or be ready to respond. This may be done through various processes, including testing the company’s perceived weaknesses and addressing them and having a plan to address activism should it arise.