The incentive to give incentives: On the relative seniority of debt claims and managerial compensation

We show that the relative seniority of debt and managerial compensation has important implications for the design of remuneration contracts. Whereas the traditional literature assumes that debt is senior to remuneration, there are in reality many cases in which remuneration contracts are de facto senior to debt claims in financially distressed firms and in workouts. We theoretically show that risky debt changes the incentive to provide the manager with performance-related incentives (a “contract substitution” effect). In other words, the relative degree of seniority of managers’ claims and creditors’ claims in case a bankruptcy procedure starts is crucial to determine the optimal incentive contract ex-ante. If managerial compensation is more senior than debt, higher leverage leads to lower power incentive schemes (lower bonuses and option grants) and a higher base salary. In contrast, when compensation is junior, we expect more emphasis on pay-for-performance incentives in highly-levered firms.     

Bankruptcy law and financial structure: The impact of managerial incentives

Abstract

Providing the manager of a firm with suitable incentives to act in the investors’ interest may be socially efficient, but not individually rational for the investors themselves. This paper specifies a second-best arrangement and shows how investors can be induced to implement it by means of an optimal bankruptcy code in the case where only standard financial contracts are available. It explains why bankruptcy law should, in some states of nature, let shareholders and senior creditors decide jointly, and provides a rationale for the existence of junior debt, which never enjoys any power of decision.     

Entrepreneur’s incentives for risk-taking and short-term debt

We investigate the effects of short-term debt for entrepreneur’s incentives for risk-taking. To do so, we develop a model by introducing short-term debt and financing frictions into the entrepreneur framework. The more risk-averse entrepreneur overestimates the liquidity risk and undervalues the private equity, leading to higher incentives for risk-taking. Short-term debt mitigates the risk-shifting problem induced by the entrepreneur’s preference while generating additional risk-taking incentives via rollover risk. We consequently challenge the view of Seta et al. (2020) by predicting a trade-off between the two effects of short-term debt for entrepreneurs, offering a new perspective to harmonize the existing arguments.     

Optimal Incentive Contracts When Agents Can Save, Borrow, and Default

The standard Principal–Agent (PA) model assumes that the principal can control the agent's consumption profile. In an intertemporal setting, however, Rogerson (1985, Econometrica53, 69–76) shows that given the optimal PA contract, the agent has an unmet precautionary demand for savings. Thus the standard PA model is invalid if the agent has access to credit markets. In this paper we generalize the standard PA model to allow for saving and borrowing by the agent. We show that the impact of such access critically depends upon the treatment of default. If default is not permitted, efficiency is strictly reduced by the introduction of credit markets, and the equilibrium level of borrowing or saving is indeterminate in the model. If default is allowed, however, the optimal contract depends upon the level of bankruptcy protection in the economy, which is described by a minimum level of wage income. We show that there is an optimal intermediate range of bankruptcy protection. Within this range, allowing default increases efficiency in the economy relative to the case of no default. Also, the model predicts specific levels of consumer debt, interest rates, and default rates as functions of the level of bankruptcy protection level. Journal of Economic Literature Classification Numbers: D80, G21, G28, J30.     

Creditor rights and debt allocation within multinationals

We analyze the optimal debt structure of multinational corporations choosing between centralized or decentralized borrowing. We identify how this choice is affected by creditor rights and bankruptcy costs, taking into account managerial incentives and coinsurance considerations. We find that partially centralized borrowing structures are optimal with either weak or strong creditor rights. For intermediate levels of creditor rights fully decentralized (centralized) borrowing structures are optimal if managers have strong (weak) empire-building tendencies. Decentralized borrowing is more attractive for companies focussing on short-term profitability. Credits are rather taken in countries with better creditor rights and more efficient insolvency systems.     

Company duplication – plain fraud or a ‘poor man's’ bankruptcy? A case study in the financial distress of small businesses

Two possible solutions to corporate financial distress are traditionally considered: commencing a formal bankruptcy proceeding or arranging an out‐of‐court capital restructuring. Corporate bankruptcy scholarship has largely ignored a third solution occasionally undertaken by small businesses, that is, resorting to self‐help measures. The purpose of this paper is to start filling the gap using a unique case study. The paper describes and analyses an existing phenomenon among small firms in Israel experiencing financial distress – company duplication. A typical scenario unfolds as follows. An entrepreneur who controls the financially distressed Company A registers a new Company B in an attempt to avoid a complete shutdown of her creditors' disturbed business. The assets of Company A are transferred to Company B in what appears to be fraudulent conveyance. Company B serves as a vehicle through which the original business is kept running. If necessary, the entrepreneur will also register Company C and repeat the process. Israeli law regulates company duplication in an ambivalent manner. On the one hand, conventional wisdom considers company duplication to be tantamount to fraud against Company A's unaware creditors. Accordingly, company duplication has been recently denounced by the Israeli Supreme Court as an illegitimate way of conducting business. The Court held that notwithstanding the principle of limited liability, an entrepreneur resorting to company duplication is personally liable to pay any debt of Company A that was not serviced by it. On the other hand, company duplicators do not face criminal charges. To the extent that company duplication is practiced by insolvent entrepreneurs, deterrence is therefore suboptimal, as insolvent duplicators are not sanctioned at all. Against this backdrop, this paper advances two normative arguments. First, a more sympathetic explanation should be considered to account for company duplication. An entrepreneur resorting to company duplication might actually be arranging for a ‘home‐made’ bankruptcy proceeding (i.e. buying time which could help the business establish its viability and regenerate). According to this narrative, the duplication mimics the role of a formal bankruptcy stay on unsecured creditors' collection efforts, thus suggesting that company duplication serves as ‘a poor man's’ bankruptcy proceeding. Second, this new explanation of company duplication, combined with the current level of suboptimal deterrence, mandates a re‐evaluation of this business pattern to assess its relative efficacy. I argue that at least in the Israeli context because of its special features, company duplication should be tolerated with regard to small businesses, assuming that the entrepreneur is not defrauding creditors or attempting to rescue a business that has failed due to economic rather than merely financial factors. To that end, company duplicators should be held personally liable to debts of the duplicated companies and be pursued with criminal sanctions only selectively, as explained in the paper. Copyright © 2011 John Wiley & Sons, Ltd.     

Financial Reporting and Credit Ratings: On the Effects of Competition in the Rating Industry and Rating Agencies' Gatekeeper Role

This paper studies firms' financial reporting incentives in the presence of strategic credit rating agencies and how these incentives are affected by the level of competition in the rating industry and by rating agencies' role as gatekeepers to debt markets. We develop a model featuring an entrepreneur who seeks project financing from a perfectly competitive debt market. After publicly disclosing a financial report, the entrepreneur can purchase credit ratings from rating agencies that strategically choose their rating fees and rating inflation. We derive the following core results: (1) More rating industry competition leads to stronger corporate misreporting incentives if ratings are sufficiently precise or if rating agencies assume a gatekeeper role. Under imperfect rating industry competition, (2) agencies' gatekeeper role primarily weakens firms' misreporting incentives, which then influences rating agencies' strategies, and (3) firms' misreporting and rating agencies' rating inflation can be strategic complements when agencies assume a gatekeeper role. (4) Regulatory initiatives aimed at increasing rating industry competition or at weakening rating agencies' gatekeeper role improve investment efficiency as long as corporate misreporting incentives are not significantly strengthened.     

Fresh Start or Head Start? The Effects of Filing for Personal Bankruptcy on Work Effort

The key feature of the modern US personal bankruptcy law is to provide debtors a financial fresh start through debt discharge. It has long been believed that the primary goal of the discharge policy is to preserve human capital by maintaining incentives to work. We provide the first test of this fresh start argument by estimating the effect of personal bankruptcy filing on work effort using data from the Panel Study of Income Dynamics. Our econometric approach controls for the endogenous self-selection of bankruptcy filing. We find that filing for bankruptcy does not have a positive impact on annual work hours for bankrupt households, a result mainly due to the wealth effects of debt discharge.      

Should Derivatives Be Privileged in Bankruptcy?

Derivatives enjoy special status in bankruptcy: they are exempt from the automatic stay and effectively senior to virtually all other claims. We propose a corporate finance model to assess the effect of these exemptions on a firm's cost of borrowing and incentives to engage in derivative transactions. While derivatives are value‐enhancing risk management tools, seniority for derivatives can lead to inefficiencies: it transfers credit risk to debtholders, even though this risk is borne more efficiently in the derivative market. Seniority for derivatives is efficient only if it provides sufficient cross‐netting benefits to derivative counterparties that provide hedging services.     

Can the Trade-off Theory Explain Debt Structure?

We examine the optimal mixture and priority structure of bankand market debt using a trade-off model in which banks havethe unique ability to renegotiate outside formal bankruptcy.Flexible bank debt offers a superior trade-off between tax shieldsand bankruptcy costs. Ease of renegotiation limits bank debtcapacity, however. Optimal debt structure hinges upon whichparty has bargaining power in private workouts. Weak firms havehigh bank debt capacity and utilize bank debt exclusively. Strongfirms lever up to their (lower) bank debt capacity, augmentwith market debt, and place the bank senior. Therefore, thetrade-off theory offers an explanation for: (i) why young/smallfirms use bank debt exclusively; (ii) why large/mature firmsemploy mixed debt financing; and (iii) why bank debt is senior.The trade-off theory also generates predictions consistent withinternational evidence. In countries in which the bankruptcyregime entails soft (tough) enforcement of contractual priority,bank debt capacity is low (high), implying greater (less) relianceon market debt.     

Consumer durables and risky borrowing: The effects of bankruptcy protection

There exist substantial differences in the generosity of bankruptcy protection across U.S. states. This paper exploits cross-state variation in exemption levels to assess the dual role of durable goods as informal collateral for unsecured debt and self-insurance against bad shocks to earnings. The generosity of bankruptcy protection is found to change both the incentives and the ability of households to accumulate durable wealth. The gains from a high level of insurance are reduced by the effect of tighter credit constraints, so that the net effects of a change in exemption are very small. A more generous bankruptcy regulation reduces net durable wealth in the first half of the life cycle. In addition, the optimal level of exemption is positive but low.     

Rethinking “Strength of Incentives” for Executives of Financial Institutions

The recent crisis has caused some finance theorists and practitioners to rethink the effects of managerial incentives on the total enterprise value of large financial institutions. This re-examination has identified and analyzed a number of potential problems with the use of equity-based compensation, including insufficiently long managerial time horizons as well as the temptation for excessive risk-taking provided by “asymmetric” payoff structures in which shareholders have virtually all the upside while debtholders bear most of the downside risk. In an attempt to address such problems, finance and governance scholars have increasingly explored the possible value of aligning managerial interests with those of not only shareholders, but other important corporate claimants such as debtholders and taxpayers. After reviewing the latest thinking about risk and managerial incentives at financial institutions, the authors come to the following conclusions:

• • The design of incentives for value maximization needs to reflect a healthy appreciation of downside risk as well as upside reward, and both senior and subordinated debt may be ideal instruments for establishing that balance. At the same time, most senior executives should continue to receive equity-linked compensation in addition to significant proportions of “inside debt.”
• • Since decision-makers below the highest level executives of large financial institutions collectively wield enormous power to assume and manage risks, this “upper-middle” tier of managers deserves special attention. Rather than rewarding these managers with stock or options, the authors suggest use of a combination of uncapped but “held-at-risk” bonuses denominated in subordinated inside debt as the best way of rewarding effort and competence while controlling opportunities for risk-shifting.

     

Dealing with consumer default: Bankruptcy vs garnishment

What are the positive and normative implications of eliminating bankruptcy protection for indebted individuals? Without bankruptcy protection, creditors can collect on defaulted debt to the extent permitted by wage garnishment laws. The elimination lowers the default premium on unsecured debt and permits low-net-worth individuals suffering bad earnings shocks to smooth consumption by borrowing. There is a large increase in consumer debt financed essentially by super-wealthy individuals, a modest drop in capital per worker, and a higher frequency of consumer default. Average welfare rises by 1% of consumption in perpetuity, with about 90% of households favoring the change.     

CEO Compensation in Financially Distressed Firms: An Empirical Analysis

This paper studies senior management compensation policy in 77 publicly traded firms that filed for bankruptcy or privately restructured their debt during 1981 to 1987. Almost one-third of all CEOs are replaced, and those who keep their jobs often experience large salary and bonus reductions. Newly appointed CEOs with ties to previous management are typically paid 35% less than the CEOs they replace. In contrast, outside replacement CEOs are typically paid 36% more than their predecessors, and are often compensated with stock options. On average, CEO wealth is significantly related to shareholder wealth after firms renegotiate their debt contracts. However, managers' compensation is sometimes explicitly tied to the value of creditors' claims.     

The non-neutrality of debt in investment timing: a new NPV rule

Summary Limited liability debt financing of irreversible investments can affect investment timing through an entrepreneur’s option value, even after compensating a lender for expected default losses. This non-neutrality of debt arises from an entrepreneur’s unique investment opportunity, and it is shown in a standard model of irreversible investment that includes the equilibrium effect of a competitive lending sector. The analysis is partial, in that it takes as exogenously given an entrepreneur’s use of debt. Intuitively, limited liability lowers downside risk for the entrepreneur by truncating the lower tail of risks, and lowers the investment threshold. Compensating the lender for expected default losses reduces project profitability to the entrepreneur, and increases the investment threshold. The net effect is negative, because lower downside risk has an additional impact on the option value of delaying investment. The standard NPV rule in real options theory implicitly assumes debt to be neutral. With non-neutrality of debt, an investment threshold is higher than investment cost, but lower than the standard NPV rule. Comparisons with other standard investment thresholds show similar relationships.     

Small Business Financial Distress and the “Phoenix Syndrome”—A Re‐evaluation

In a typical “phoenix syndrome” scenario, a small business entrepreneur who controls the financially distressed Company A registers Company B, to which the assets of Company A are transferred in what appears to be fraudulent conveyance. Company B serves as a vehicle through which the business is kept running, without the pressures of the business creditors. If necessary, the entrepreneur will also register Company C and repeat the process. The law usually considers the execution of a “phoenix syndrome” scheme (“phoenixizing”) to be fraud against Company A's unaware creditors. Two major problems undermine, however, the efficient regulation of “phoenix syndrome” schemes. First, although criminal sanctions are available, “phoenixizing” entrepreneurs are not regularly prosecuted and are usually only subject to monetary sanctions (e.g., personal civil liability to creditors). Because defrauders tend to be judgment proof, the result is sub‐optimal deterrence. Second, lawmakers have not considered a more sympathetic explanation to account for the “phoenix syndrome” phenomenon: an entrepreneur resorting to a “phoenix syndrome” scheme might actually be arranging for a last‐resort “home‐made” bankruptcy proceeding, that is, the entrepreneur might be mimicking the role of a formal bankruptcy stay on unsecured creditors' collection efforts, against the background of a cost prohibitive formal bankruptcy proceeding. Put simply, the “phoenix syndrome” scheme is, occasionally, “a poor man's” bankruptcy proceeding. Deterring a “phoenixizing” entrepreneur attempting to rescue a viable business is, of course, unwarranted, as the result is viable businesses being lost. These two problems of under‐deterrence and over‐deterrence mandate a re‐evaluation of the manner in which “phoenix syndrome” schemes are regulated. Obviously, the main question concerns implementation: How can “good” entrepreneurs, attempting to rescue a viable business, be separated from “bad” ones, who attempt to defraud or to rescue a non‐viable business? The paper discusses and evaluates several solutions. Copyright © 2012 INSOL International and John Wiley & Sons, Ltd.     

Subordinated debt,market discipline,and banks' risk taking

The present paper demonstrates the ambiguous impact of subordinated debt on the risk-taking incentives of banks. It is shown that in comparison with full deposit insurance, subordinated debt reduces risk only if banks can credibly commit to a given level of risk. If, however, banks are not able to commit, subordinated debt leads to an increase in risk. This is because due to limited liability banks always have an incentive to increase their risk after the interest rate is contracted in order to reduce the expected costs of debt. Rational debt holders anticipate this behavior and accordingly require a higher risk premium ex ante. The higher interest rates in turn further aggravate the excessive risk-taking incentives of banks.     

Credit Risk Spreads in Local and Foreign Currencies

Governments, corporations, and even small firms raise and denominate capital in different currencies. We examine the micro‐level factors that should be considered by a borrower when structuring debt denominated in various currencies. This paper will show how the currency composition of debt affects the cost of debt through the interaction with the risk of company's assets. We look at the currency mismatch in the firm and analyze its credit spread within a Merton's type model with bankruptcy. We show that foreign currency borrowing is cheaper when the exchange rate is positively correlated with the return on the company's assets. The determining factor is not just whether a given company is an exporter or importer, but rather the statistical correlation between the rate of return on the firm's assets and changes in the exchange rate.     

Leverage and pricing of debt in LBOs

We show that the structure and pricing of debt in LBOs mostly depend on a single characteristic of the target firm, pre-LBO profitability. We find a positive relationship between pre-LBO profitability and deal leverage that is consistent with a dynamic trade-off theory of capital structure in the presence of adjustment costs. We argue that the wide range of debt tranches used in LBO financing can be folded into two main categories, senior and junior debt, where the pricing of senior and junior debt depends on their relative use and on bankruptcy risk. Our evidence also suggests that senior lenders oversupply cheap credit during hot buyout markets.     

Debt Agreements for Consumers under Bankruptcy Law in Australia and Developing International Principles and Standards for Personal Insolvency

The debt agreement option under bankruptcy law was introduced in Australia in 1996. Since its introduction, it has undergone significant review, and two sets of amendments have been crafted to meet issues as they have been raised. Its popularity is reflected in the increasing proportion of debt agreements compared with the other two debt relief options available under bankruptcy legislation, bankruptcy and the personal insolvency agreement. A review of the debt agreement scheme has recently been undertaken, but the government has yet to respond to its recommendations. Meanwhile, the work of comparative bankruptcy scholars has found new impetus from the treatment of consumer debtors during the Global Financial Crisis. At the same time, at the international level, there is growing interest in developing general principles for the treatment of personal insolvency, despite the acknowledged diversity of approach to personal insolvency at the national level. This paper examines the debt agreement framework and how it fits within the comparative bankruptcy literature and the developing international principles for the treatment of personal insolvency. Copyright © 2014 INSOL International and John Wiley & Sons, Ltd