Corporate Governance in Private Equity Portfolio Companies
Cerberus Capital Management, LLP is one of the largest and most prominent private equity firms in the world. In 2009, Cerberus recruited Paul Marcela to serve as Vice President, General Counsel & Secretary of two of its portfolio companies, Blue Bird Corporation and North American Bus Industries, Inc. Paul served as Secretary to the Boards of Directors of those companies and their direct affiliates and to their Audit and Compensation Committees. He significantly enhanced legal entity corporate governance at each company and worked directly with the Chairman of the Board of each company to “professionalize” Board and Committee practices. Paul assessed legal entity corporate governance procedures and developed improvements to related processes. He improved the quality of Board meeting minutes and processes related to Board resolution approval, Board meeting logistics and corporate minute book maintenance and, as a result, gained invaluable experience regarding corporate governance issues in the private equity portfolio company context.
Large Private Company Corporate Governance
As a substantial private joint venture of The Dow Chemical Company and Corning, Inc., Dow Corning Corporation has consistently been managed and operated as though its stock is publicly held. Dow Corning’s Board of Directors consists of an equal number of high ranking executives of Dow Chemical and Corning along with Dow Corning’s Chief Executive Officer. The Board has consistently required Dow Corning, and the Company’s Management Finance Committee to maintain independent management and operational staff, facilities and operations and to adopt financial and accounting standards, policies and procedures that are similar to those employed by public companies.
In his roles as Dow Corning’s Associate & Assistant General Counsel and Assistant Secretary for many years, Paul Marcela led Dow Corning’s Office of the Corporate Secretary. He managed all aspects of corporate governance, including Board of Directors and Board Committee matters, and served as Secretary to the Board’s Audit and Finance Committees, which consisted of the Chief Financial Officers of Dow Chemical and Corning, and the Company’s Management Finance Committee. He also prepared Board of Directors resolutions, meeting minutes and related documentation and led the resolution of corporate law matters relating to the Company’s Board of Directors and Shareholders. In addition, Paul managed the legal aspects of directors’ and officers’ indemnification and insurance issues and he led legal entity management activities for the Company’s subsidiaries on a global basis with the support of his European and Asian colleagues.
Paul also served as Secretary to Dow Corning subsidiary and joint venture Boards of Directors, including the Boards of Hemlock Semiconductor Group, a substantial joint venture with two large Japanese corporate partners, and SDC Technologies, Inc., a joint venture with a large British corporate partner. He also managed corporate governance issues for Dow Corning’s Latin American and Canadian subsidiaries. Paul led the corporate governance aspects of all corporate acquisition, divestiture and financial transactions, including those related to an international legal entity restructuring project, and was responsible for governance issues related to the Company’s charitable foundation and political action committee.
As a result of his Dow Corning governance experience, Paul has amassed an extraordinary amount of experience with corporate governance issues that arise in large private and quasi-public companies.
Securities Law Issues In a Company In Crisis
In late 1991, Dow Corning Corporation became the subject of extreme public focus as a result of issues regarding the safety and efficacy of silicone implants manufactured by the Company that arose from F.D.A. regulatory inquiries and related litigation. This situation resulted in Dow Corning becoming the object of the largest mass tort litigation in U.S. history at the time.
Dow Corning was for many years subject to S.E.C. public company annual and quarterly reporting requirements because the Company had been the issuer of public debt securities. Beginning in late 1991, the Company’s securities filings became increasingly complicated when the silicone implant issue became a matter of substantial public attention, particularly with regard to contingent liability disclosures.
As Dow Corning’s Financial Counsel at the time, Paul Marcela was charged with responsibility for ensuring the Company’s compliance with its securities reporting obligations relative to the evolving corporate crisis. Paul led the resolution of all securities laws issues related to the crisis, including the preparation of the Company’s securities disclosures and the management of related securities disclosure and shareholder derivative litigation. He counseled Dow Corning’s executive management on all related securities issues and advised the Company’s Chief Financial Officer and Controller regarding the preparation of annual and quarterly financial statement footnotes and press releases regarding material financial matters. Paul also assisted financial management with the determination of reserves for material financial contingencies and the interpretation and application of related S.E.C. and F.A.S.B. releases. In addition, he interacted with the S.E.C. regarding the Company’s responses to S.E.C. comment letters relating to the unique contingent liability disclosure issues that resulted from the silicone implant mass tort litigation. Paul also prepared disclosure documents for public debt transactions and led related due diligence activities. The intensity involved in the resolution of Dow Corning’s securities disclosure and related issues provided Paul with a unique depth and breadth of securities law knowledge in the context of an extremely difficult and challenging corporate crisis.
Corporate Governance During Chapter 11 Proceedings
In 1995, when approximately 19,000 silicone implant products liability lawsuits were pending against Dow Corning Corporation, and following attempts to reach a global settlement of that mass tort corporate crisis, the Company filed for protection under Chapter 11 of the U.S. Bankruptcy Code. The Company emerged from its Chapter 11 Proceeding nine years later in 2004. Dow Corning’s Chapter 11 Proceeding was at the time the largest Bankruptcy case in U.S. history.
Complicated corporate governance challenges arose as Dow Corning continued to conduct its business as a debtor-in-possession under the oversight of the U.S. Bankruptcy Court while the Company’s Board and executive management was engaged in negotiating and eventually implementing a Chapter 11 Plan of Reorganization that would resolve the silicone implant litigation and satisfy the claims of the Company’s commercial creditors. Significant corporate transactions, including those related to the Company’s Chapter 11 Proceeding, required both Board of Directors and Bankruptcy Court authorizations.
In his role as Dow Corning’s Financial Counsel, Paul Marcela participated on project teams charged with developing financial restructuring alternatives and mass tort resolution options. He led planning activities to implement the Company’s Chapter 11 reorganization alternative as a method to resolve the silicone implant litigation and served on finance, business plan, tax and legal teams relative to the development of a plan of reorganization for emergence from the Chapter 11 process. Paul led the corporate governance and finance law aspects of Dow Corning’s Chapter 11 proceeding and the implementation of the Company’s plan of reorganization, including the administration of the payment of $1.4 billion in commercial creditor claims.
As a result, Paul experienced a unique opportunity to address the complicated corporate governance issues that arise when a corporation becomes embroiled in a highly charged Chapter 11 case. This experience would be very valuable to any clients of GPG that might find themselves in a similar predicament.
Corporate Governance in Not-For-Profit Organizations
Governance issues present themselves in organizations other than for profit corporations. Paul Marcela has consistently performed leadership roles in professional associations, community organizations and educational boards and councils. Paul has been a member of the Board of Directors of the Society of Corporate Secretaries and Governance Professionals between 2009 and 2013 and is currently Chair of the Society’s national Private Companies Committee. Previously, he has been a member of the Society’s national Educational Programs Committee and Membership Committee. Paul is also currently a member of the Advisory Board of the Southeast Chapter and previously served as President of the Detroit Chapter of the Society. He has been a member of the Society for more than fifteen years. Paul’s close connection to the Society, the premier association of corporate governance professionals, makes him a highly seasoned corporate governance professional.
Paul has also led other professional association organizations. He is a 28 year member of the Association of Corporate Counsel and serves on the organization’s Corporate and Securities Law Committee. He is currently a Vice President of the Georgia Chapter and previously served as President of the Michigan Chapter of the organization. In addition, Paul previously served as Chair of the In-House Counsel Committee of the State Bar of Michigan Business Law Section and President of the Midland (MI) Bar Association.
In the academic context, Paul currently is Co-Chair of the Governance & Nominating Committee of the Board of Directors of the Alumni Association of Case Western Reserve University. Also, in November of 2011, he completed a two year term as Chairman of the Board and President of the Case Western Reserve University School of Law Alumni Association during which he had fostered improved coordination and interface between the Law School’s alumni, administration, faculty and students. In April, 2011, Paul completed a four-year tenure as Chair of the Allegheny College Managerial Economics Program Board of Visitors. He also currently serves on the Oglethorpe University President’s Advisory Council. In addition, Paul had served as a Trustee and Secretary of the Dow Corning Foundation, a corporate charitable foundation, in Midland, MI for many years.
In 2007, Paul served as President of the Midland (MI) Country Club and led the Club’s Board of Directors and membership to consider, approve and implement a recapitalization of the Club and a multi-million dollar complete reconstruction of the Club’s facilities, which was completed in 2010. This initiative resulted in a revitalized Club for the membership, its corporate shareholders and the community at large.
Paul has implemented step change improvement initiatives in every professional association, educational and community organization that he has led. His substantial organizational leadership experience provides him with an unusual perspective regarding, and makes him uniquely qualified to understand, the governance needs of many different types of not-for-profit organizations, such as colleges and universities, medical care institutions and arts and other cultural organizations. Paul has developed an extraordinary set of diplomacy, ambassadorship, leadership and international skills that are particularly well suited to providing efficient and effective corporate governance services in the not-for-profit sector.