读趣百科

In January 2008 Arti entered in a contractual agreement with Bee Ltd to write a study manual for an international accountancy body’s award. The manual was to cover the period from September 2008 till June 2009, and it was a term of the contract that the text be supplied by 30 June 2008 so that it could be printed in time for September. By 30 May, Arti had not yet started on the text and indeed he had written to Bee Ltd stating that he was too busy to write the text.

Bee Ltd was extremely perturbed by the news, especially as it had acquired the contract to supply all of the

accountancy body’s study manuals and had already incurred extensive preliminary expenses in relation to the publication of the new manual.

Required:

In the context of the law of contract, advise Bee Ltd whether they can take any action against Arti.

(10 marks)

This scenario summarises the development of a company called Rock Bottom through three phases, from its founding in 1965 to 2008 when it ceased trading.

Phase 1 (1965–1988)

In 1965 customers usually purchased branded electrical goods, largely produced by well-established domestic companies, from general stores that stocked a wide range of household products. However, in that year, a recent university graduate, Rick Hein, established his first shop specialising solely in the sale of electrical goods. In contrast to the general stores, Rick Hein’s shop predominantly sold imported Japanese products which were smaller, more reliable and more sophisticated than the products of domestic competitors. Rick Hein quickly established a chain of shops, staffed by young people who understood the capabilities of the products they were selling. He backed this up with national advertising in the press, an innovation at the time for such a specialist shop. He branded his shops as ‘Rock Bottom’, a name which specifically referred to his cheap prices, but also alluded to the growing importance of

rock music and its influence on product sales. In 1969, 80% of sales were of music centres, turntables, amplifiers and speakers, bought by the newly affluent young. Rock Bottom began increasingly to specialise in selling audio equipment.

Hein also developed a high public profile. He dressed unconventionally and performed a number of outrageous stunts that publicised his company. He also encouraged the managers of his stores to be equally outrageous. He rewarded their individuality with high salaries, generous bonus schemes and autonomy. Many of the shops were extremely successful, making their managers (and some of their staff) relatively wealthy people.

However, by 1980 the profitability of the Rock Bottom shops began to decline significantly. Direct competitors using a similar approach had emerged, including specialist sections in the large general stores that had initially failed to react to the challenge of Rock Bottom. The buying public now expected its electrical products to be cheap and reliable.

Hein himself became less flamboyant and toned down his appearance and actions to satisfy the banks who were becoming an increasingly important source of the finance required to expand and support his chain of shops.

Phase 2 (1989–2002)

In 1988 Hein considered changing the Rock Bottom shops into a franchise, inviting managers to buy their own shops (which at this time were still profitable) and pursuing expansion though opening new shops with franchisees from outside the company. However, instead, he floated the company on the country’s stock exchange. He used some of the capital raised to expand the business. However, he also sold shares to help him throw the ‘party of a lifetime’ and to purchase expensive goods and gifts for his family. Hein became Chairman and Chief Executive Officer (CEO) of the newly quoted company, but over the next thirteen years his relationship with his board and shareholders became increasingly difficult. Gradually new financial controls and reporting systems were put in place. Most of the established managers left as controls became more centralised and formal. The company’s performance was solid but unspectacular. Hein complained that ‘business was not fun any more’. The company was legally required to publish directors’ salaries in its annual report and the generous salary package enjoyed by the Chairman and CEO increasingly became an issue and it dominated the 2002 Annual General Meeting (AGM). Hein was embarrassed by its publication and the discussion it led to in the national media. He felt that it was an infringement of his privacy and

civil liberties.

Phase 3 (2003–2008)

In 2003 Hein found the substantial private equity investment necessary to take Rock Bottom private again. He also used all of his personal fortune to help re-acquire the company from the shareholders. He celebrated ‘freeing Rock Bottom from its shackles’ by throwing a large celebration party. Celebrities were flown in from all over the world to attend. However, most of the new generation of store managers found Hein’s style. to be too loose and unfocused. He became rude and angry about their lack of entrepreneurial spirit. Furthermore, changes in products and how they were purchased meant that fewer people bought conventional audio products from specialist shops. The reliability of these products now meant that they were replaced relatively infrequently. Hein, belatedly, started to consider selling via an Internet site. Turnover and profitability plummeted. In 2007 Hein again considered franchising the company,but he realised that this was unlikely to be successful. In early 2008 the company ceased trading and Hein himself,now increasingly vilified and attacked by the press, filed for personal bankruptcy.

Required:

(a) Analyse the reasons for Rock Bottom’s success or failure in each of the three phases identified in the

scenario. Evaluate how Rick Hein’s leadership style. contributed to the success or failure of each phase.

(18 marks)

(b) Rick Hein considered franchising the Rock Bottom brand at two points in its history – 1988 and 2007.

Explain the key factors that would have made franchising Rock Bottom feasible in 1988, but would have

made it ‘unlikely to be successful’ in 2007. (7 marks)

In relation to the law of contract, distinguish between and explain the effect of:

(a) a term and a mere representation; (3 marks)

(b) express and implied terms, paying particular regard to the circumstances under which terms may be implied in contracts. (7 marks)

In relation to company law, explain:

(a) the limitations on the use of company names; (4 marks)

(b) the tort of ‘passing off’; (4 marks)

(c) the role of the company names adjudicators under the Companies Act 2006. (2 marks)

TQ Company, a listed company, recently went into administration (it had become insolvent and was being managed by a firm of insolvency practitioners). A group of shareholders expressed the belief that it was the chairman, Miss Heike Hoiku, who was primarily to blame. Although the company’s management had made a number of strategic errors that brought about the company failure, the shareholders blamed the chairman for failing to hold senior management to account. In particular, they were angry that Miss Hoiku had not challenged chief executive Rupert Smith who was regarded by some as arrogant and domineering. Some said that Miss Hoiku was scared of Mr Smith.

Some shareholders wrote a letter to Miss Hoiku last year demanding that she hold Mr Smith to account for a number of previous strategic errors. They also asked her to explain why she had not warned of the strategic problems in her chairman’s statement in the annual report earlier in the year. In particular, they asked if she could remove Mr Smith from office for incompetence. Miss Hoiku replied saying that whilst she understood their concerns, it was difficult to remove a serving chief executive from office.

Some of the shareholders believed that Mr Smith may have performed better in his role had his reward package been better designed in the first place. There was previously a remuneration committee at TQ but when two of its four non-executive members left the company, they were not replaced and so the committee effectively collapsed.

Mr Smith was then able to propose his own remuneration package and Miss Hoiku did not feel able to refuse him.

He massively increased the proportion of the package that was basic salary and also awarded himself a new and much more expensive company car. Some shareholders regarded the car as ‘excessively’ expensive. In addition, suspecting that the company’s performance might deteriorate this year, he exercised all of his share options last year and immediately sold all of his shares in TQ Company.

It was noted that Mr Smith spent long periods of time travelling away on company business whilst less experienced directors struggled with implementing strategy at the company headquarters. This meant that operational procedures were often uncoordinated and this was one of the causes of the eventual strategic failure.

(a) Miss Hoiku stated that it was difficult to remove a serving chief executive from office.

Required:

(i) Explain the ways in which a company director can leave the service of a board. (4 marks)

(ii) Discuss Miss Hoiku’s statement that it is difficult to remove a serving chief executive from a board.

(4 marks)

(b) Assess, in the context of the case, the importance of the chairman’s statement to shareholders in TQ

Company’s annual report. (5 marks)

(c) Criticise the structure of the reward package that Mr Smith awarded himself. (4 marks)

(d) Criticise Miss Hoiku’s performance as chairman of TQ Company. (8 marks)