Tuesday, 10 January 2012

The Edge Polls about Corporate Governance issues

The Edge website regularly holds polls about different issues, some if which are relevant for this blog.

The website can be found here:

http://www.theedgemalaysia.com/the-edge-polls.html


A large majority of the voters is "not impressed" about Corporate Governance in Malaysia, the authorities should take note.






A huge majority votes is either for more transparency or more enforcement.





The issue of quarterly reporting was raised with the CG Blueprint 2011. The voice of the people has been heard.





The "No" voters want even more severe penalties, I suppose large fines or persons being barred from their industry.




PNB made an offer of RM 3.90 for each SP Setia share, the management immediately responded that the offer price was insufficient. It has been rather quiet around this deal, with PNB negotiating with SP Setia's management and receiving SC's feedback.





The choice of countries is rather limited, one would expect the US, Hong Kong and possibly the UK and Australia also to feature. But the message is clear, the large majority of voters are (also) looking at foreign markets to invest in.

It has been made rather convenient to trade foreign stocks with local brokers, I would be interested to know how many investors are using this option, which percentage they invest in foreign stocks.

It means competition for the listed Malaysian companies, which is good, it forces them to perform well (both financially and in CG terms) relatively to foreign companies.

Monday, 9 January 2012

No more 'neither admit nor deny'



I wrote about the regulatory settlements regarding alleged insider trading:

http://cgmalaysia.blogspot.com/2011/12/sc-2011-civil-actions.html

Although it is good that action was taken (some of them eight years old), in all cases it was without admission or denial of liability. I even mentioned that this was a quite normal way to settle matters in the US, but that I don't like it.

Apparently, in the US the SEC has been criticized for using the same phrase too often in settlements and will start to make changes. Hopefully the Malaysian authorities (SC and BM) will follow suit.

From the Business Times (Singapore), January 9, 2012 (link only for free after 6pm):

http://www.businesstimes.com.sg/sub/news/story/0,4574,472902,00.html?

No more 'neither admit nor deny' escape route for US firms
SEC to change policy on companies' admission of guilt in securities fraud cases

(WASHINGTON) The Securities and Exchange Commission (SEC) is making a major change in how it settles some securities fraud cases, telling companies that they will no longer be allowed to say they neither admit nor deny the commission's civil charges when, at the same time, they admit to or have been convicted of criminal violations.

The change has been under consideration for some time and could be announced soon, according to people who have been briefed on the new policy. The SEC will continue to use the 'neither admit nor deny' settlement process when it alone reaches a deal with a company in a case of civil securities law violations, the people briefed on the policy said. Those types of cases make up the majority of its settlements.

The SEC has been criticised, in federal court and on Capitol Hill, for allowing companies to repeatedly settle fraud cases without admitting or denying the charges. That policy has been allowed to continue in cases even when a company admits the same conduct to another government agency, often the Justice Department.

For example, the SEC and the Justice Department announced on the same day last month Wachovia would pay US$148 million to settle charges the bank reaped millions of dollars in profits by rigging bids in the municipal securities market, one of several such settlements announced last year by the two agencies.

In the Justice Department settlement, Wachovia said it 'admits, acknowledges and accepts responsibility for' manipulating the bidding process in the sale of derivatives on tax-exempt bonds to institutional investors like cities, hospitals and pension plans over a six-year period ending in 2004. But in fashioning a settlement with the SEC based on the same facts, Wachovia agreed to settle the charges 'without admitting or denying the allegations.'

The 'neither admit nor deny' practice has been in use for years by many government agencies in addition to the SEC. But it has attracted renewed criticism recently.

The SEC has defended the practice, saying that by settling with companies, it saves the commission the far greater expense - and potential risk - of fighting them in court.

The agency says it is usually able to get as much money from a settlement as it could win in a protracted legal case, with money being returned to investors more quickly.

In crafting a settlement of securities fraud charges, companies frequently seek the 'neither admit nor deny' language for fear that admitting the conduct could then be used against them in shareholder lawsuits seeking damages. -- NYT

Sunday, 8 January 2012

Prof Datuk Mohamed Ariff on Malaysian issues

From The Star of January 7, 2012:

http://biz.thestar.com.my/news/story.asp?file=/2012/1/7/business/10163037&sec=business#13258964893981&if_height=744



Excellent observations from Prof Datuk Mohamed Ariff, can't agree more with them.

The seven most important questions, the remaining three (more personal) in the link above:

[1] What are the three most troubling economic issues facing Malaysia today, and how can we tackle them? Bulbir Singh, Seremban

Persistent and endemic fiscal imbalance, growing income disparity and overdependence on foreign workers top the list. Malaysia lacks fiscal discipline. In the last 54 years since Independence, Malaysia has had budget surplus only in 7 years. Fiscal prudence demands counter-cyclical fiscal policy with surplus in good times and deficit in lean times, which allows fiscal stimulus during economic downturns to be financed by the accumulated surpluses without borrowing. As this has not been the case with Malaysia, the nation's public debt has been growing. National debt has risen to RM430.2bil in the first quarter of 2011, roughly 55% of gross domestic product (GDP), up from 41% in 2008. To balance the books, the government must rein in its operating expenditure and introduce tax reforms. The government's reliance on oil and gas which accounts for about 40% of total revenue is simply untenable. Federal revenue growth has failed to keep pace with GDP growth, so much so that the revenue/GDP ratio has fallen to 22% from the 10-year average of 34%.

The growing income disparity is also worrisome. The bottom 40% of the households account for only 14% of national income, while the top 20% of the households account for roughly 50% of aggregate income. Income inequality in Malaysia hovers at levels higher than that in Indonesia, the Philippines and Thailand. Regional disparity is equally striking. Sabah is the poorest with 20% of the households living below the poverty line. Sabah accounts for 43% of the country's poor, trailed by Sarawak (12%) and Kedah (9%). These three states jointly account for nearly two-thirds of the poverty in the country. To fix the problem, the government must revisit and review its affirmative action plans so that the benefits accrue directly to the poor and the marginalised, regardless of ethnicity.

While one must thank foreign workers for their contributions to the economic growth and development of the country, their numbers have grown far beyond “optimal” level. This overdependence on guest workers has contributed to the middle-income trap, as their over-presence tends to suppress wages. In the early 1990s, it was thought that Malaysia could stay competitive internationally by keeping wages low and hence the opening of the floodgates to foreign workers. Experience has shown that such input-driven growth is unsustainable. High wages backed by high productivity can translate into low labour costs. Malaysia needs to ensure that the locals have the necessary skills as the economy moves up the value-chain.

[2] Are all the measures we have put in place sufficient to ensure that we become a developed nation by 2020? What are we not doing right, if any? Abu Hassan, Petaling Jaya

The long-term Vision 2020 was both laudable and feasible. It was like running a marathon. The mistake we made was to run it like a sprint at maximum speed right from the start, pursuing input-driven high growth single-mindedly. In the process, we seem to have fallen unwittingly into the middle-income trap. We needed to grow only at 7% per annum to be a developed nation by 2020, and there was no need to grow at overheating double-digit pace. Malaysia's potential growth rate has fallen from 7% in the early 1990s to roughly 5% now. We need to raise our growth potentials by reinventing the economy. We need to move away from low value-added to high value-added activities, but this is easier said than done. It calls for bold policy reforms which may not sit well with vested interests that support and benefit from the current order.

[3] What is your opinion on the Economic Transformation Programme (ETP), Government Transformation Programme (GTP) and all the other transformation programmes? Reuban John, Klang

The various transformation programmes including the ETP and GTP are significant steps in the right direction. Much however would depend on their implementation. Besides, as the saying goes, the proof of the pudding is in the eating. Experience has shown that such programmes tend to work well if they are perceived to be bottom-up, not top-down. To reinvent the Malaysian economy, what we need is a holistic, not selective, transformation. In any case, change should be gradual, for “big bang” can be disruptive.

[4] What do we need to do most in order to stem the brain drain in the country? Li Ming, Johor

Brain drain need not be seen negatively in the first place. I once heard someone quip “brain drain is better than brain stuck in the drain.” It can play a positive role by creating a diaspora with pivotal international connectivity which is equivalent to gaining offshore economic space generating income inflows for the home country. The flip side, however, is that it deprives the nation of skills much needed to transform the economy. To stem the brain drain, we need to identify the root causes and tackle them effectively. Brain drain can be due primarily to the pull factor or the push factor. If it is the former, little can be done as it is purely external, but if it is the latter, it can be fixed domestically. We need to create lucrative job opportunities with levelled playing fields at home and eliminate the disincentives that encourage skilled personnel to exit. A reasonably liberal environment can be a powerful plus factor. A strong domestic currency would also discourage brain drain, just as a weak home currency would do exactly the opposite.

[5] Do you think that Malaysia is really losing its competitiveness to other countries in the region and what can we do to stop this? James Chin, Petaling Jaya

This is an empirical question. Empirical evidence is not conclusive, although the various competitiveness indices that rank countries provide some pointers. However, there are concerns over Malaysia's declining growth rates, with newly emerging economies in the region exhibiting greater dynamism. It is quite normal for emerging economies like Vietnam to grow faster than mature economies like Malaysia, due mainly to what economists call the base effect. Malaysia is still fairly competitive as shown by the seemingly perennial surplus in the balance of payments, but no country can afford to rest on the laurels. Latin American experiences are telling. Malaysia has huge potentials which are waiting to be unlocked through real policy reforms that would allow greater economic freedom to unleash the forces of transformation. It is unfortunate that politics tends to override economics.

[6] Is it really a big concern that our top universities command poor rankings in the international arena and what had contributed to this in the first place? Lily Raj, Penang

This indeed is a big concern, but we cannot blame it all on the universities as they partly inherit the problems from secondary and primary schools. Our education system is somewhat archaic with rote learning taking primacy over creativity and thinking. Nothing short of a complete overhaul can fix the problem. In short, we need to democratise our education system, but no one in the corridors of power has the gumption to get it done.

[7] What do you hope to see happen in Malaysia next year? Susan Cheung, Kuala Lumpur

I am afraid that we need to brace ourselves for a rough ride in 2012. Malaysia's exports are likely to face strong head winds, with several European economies shrinking and other developed economies stagnating, compounded by a sedated slowdown in China. The prices of major commodities, including gold, are likely to melt. The silver line is the window for real reforms as tough times will force politics to take the back seat. Hopefully, economic necessity will knock out political expediency.

Friday, 6 January 2012

Mulpha International reprimanded

(lightly edited version)

On January 3, 2012 Mulpha International (Mulpha) was reprimanded by the Securities Commission:

http://www.sc.com.my/main.asp?pageid=770&linkid=3002&yearno=2012&mod=paper


The description of the misconduct was rather vague, to say the least:

"Failure to ensure the final basis of allocation of excess rights shares was consistent with the basis disclosed in the abridged prospectus of Mulpha International Berhad dated 24 February 2010"

In what way was it not consistent? The rights issue in 2010 was a massive 1-for-1 exercise worth almost RM 500 million in which the the market capital of the company would almost double. If anything was wrong with that exercise, surely the minority shareholders deserve a clear explanation.

An article in The Star of today sheds more light on this issue:

http://biz.thestar.com.my/news/story.asp?file=/2012/1/6/business/10213165&sec=business

Mulpha disappointed with SC reprimand, seeking clarification


By JOHN LOH
PETALING JAYA: Mulpha International Bhd's directors are disappointed at a reprimand from the Securities Commission (SC) that claimed the property developer failed to disclose information in a 2010 prospectus in “a full and true manner.”

Mulpha said in a statement that it would write to the regulator for further clarification before considering its next course of action, which may include an appeal.

“The company fully cooperated and provided all required information to the SC when queried on Sept 30, 2010.

“The company is also disappointed that this matter has been announced without giving the company the benefit of its 30-day right to appeal the decision,” it said.

The SC had on Wednesday posted the reprimand on its website, saying Mulpha's actions had breached Paragraph 1.03 of its guidelines for abridged prospectuses.

Essentially, it described Mulpha as inconsistent in the way it allocated the excess rights shares to what was disclosed in the abridged prospectus.

Mulpha's abridged prospectus, which was issued on Feb 24, 2010, was for a renounceable one-for-one two-call rights issue of up to 1,526,559,774 new ordinary shares of 50 sen each. However, the rights issue was undersubscribed, raising only RM471.2mil.

Its board said it believed the SC's reprimand specifically related to the manner in which it had allocated the excess rights shares to shareholders and renouncees who applied for them.

In its defence, the company explained that there was a minority of shareholders and renouncees, many of whom held a miniscule number of shares at the entitlement date, who applied for the excess rights shares at unusually high multiples, some even up to thousands of times what they were entitled.

“Two renouncees, for example, put in excess rights shares applications of 29,999 and 598,000 times of their initial entitlements.

“The directors of Mulpha, after receiving formal legal advice and invoking the authority granted to the Board in Section 4.4 of the abridge prospectus, fixed the allocation of excess rights shares to all applicants to generally 10 times of their initial entitlements.

“The board exercised its rights as it believed these extremely high excess applications could potentially give rise to adverse and irregular trading in its shares post the completion of the capital raising, which would be detrimental to the interest of the company.

“It could also potentially reduce the number of excess shares allocated to the remaining shareholders and renouncees who had put in excess applications that were not grossly and artificially inflated,” it pointed out.

(Section 4.4 authorises the board to allot the excess rights shares in a fit and expedient manner and in the best interest of the company as well as to accept any excess rights shares application in full or in part without assigning any reason, in a fair and equitable manner and on a pro-rata basis.)

Mulpha added that while the reprimand was given to the present board, Datuk Yusli Mohamed Yusoff and Caesar Loong were not directors at the material time when the abridged prospectus was issued.

“Furthermore, as the underwriter to the rights issue was the company's major shareholder in which Lee Seng Huang has an indirect interest, Lee consequently abstained, as required by law, from the board's deliberations on the formula to allocate the excess rights shares,” it said.

Through various investment holding companies, Lee and his family have an indirect 35% equity interest in Mulpha, based on its latest annual report.

Mulpha's stock shed 0.5 sen to 38 sen yesterday, with 6.7 million shares traded.

Why did Mulpha not announce the above when they published the allocation? Here is the allocation table from the website of Bursa Malaysia:



It says "total excess applications", not "total approved excess applications", it appears that all excess applications have been approved since even with the excess applications the rights issue has been undersubscribed. If indeed excess applications were restricted, then Mulpha should have been transparent about it.

What probably happened is that some shareholders put in large applications for excess rights shares, these amounts were strongly reduced, but when these shareholders later checked on the Bursa Malaysia's website it turned out that the rights issue was actually undersubscribed (even including the applications for excess rights shares) and that the unsubscribed rights shares (about 37 million) were allocated to Magic Unicorn Ltd, linked to the majority shareholders. After seeing this they probably filed a complaint with the Securities Commission.

Some issues:
  • Mulpha should have clearly written how and why it allocated the excess rights shares, especially since Mulpha's majority shareholders received more excess rights shares because of this and thus conflict of interest is a serious possibility
  • Mulpha should (even now, two years later) be forced to give a clear overview how the excess rights shares were allocated, grouped by Related Parties and Non-Related Parties
  • The Securities Commission should write more clear descriptions of misconduct, readers should not have to guess what was actually the issue
  • I hope that the Securities Commission gave Mulpha sufficient chance to appeal, although it does seem to me (given the above information) that (at least) a reprimand was indeed in order
  • This case took almost two years to complete, why so unbelievable long? This is not a very difficult case and should easily be dealt with within one year (before the end of 2010)
  • It might be wise in general to cap the amount of excess rights shares a shareholder can apply for relative to his entitlement to some reasonable number. This would require a change in the rules. If certain parties are applying for 598,000 times their entitlement, then that smells like exploiting a loophole, and that is not what investing should be about