Sunday, October 10, 2010

**Newly Launched** Activist Investing Resource Blog

Check out the newly launched Activist Investing Resource Blog, a central repository for published research papers on financially-oriented shareholder activism, activist investing presentations from webinars and investment conferences, books on activism, and much more.

Thursday, October 7, 2010

MacKenzie Strengthens Proxy Fight Team With Seasoned Veteran

New York, NY, October 7, 2010 -- MacKenzie Partners, Inc. today announced that Paul Schulman has joined MacKenzie Partners in their New York City headquarters as Senior Vice President. Paul has over twenty years of experience in the proxy solicitation industry. He was previously with The Altman Group overseeing all corporate proxy solicitation, M&A and shareholder identification projects.

Dan Burch, Chief Executive Officer of MacKenzie Partners, stated, “Paul’s extensive industry expertise and financial services background will greatly benefit the firm’s clients. We are pleased to have been able to recruit Paul to join our already strong team of professionals and he will be able to bring his substantial talents to bear on the firm’s major ongoing contests and in the coming 2011 proxy season.  While Proxy Access may be delayed yet another year, it is clear from the substantial uptick in hostile takeovers, activism and proxy contests this fall, that 2011 will be an extremely busy year for our industry.”

Paul’s primary responsibilities in the recent past have involved representing clients in proxy contests, mergers, tender offers and corporate financings and restructurings. He also counsels clients on corporate governance and compensation issues and advises on shareholder proposals. Paul has extensive experience as the lead on numerous contested solicitation assignments, complex restructurings, hostile and friendly mergers, bankruptcy solicitations, limited partnership transactions and stock surveillance.

Prior to joining The Altman Group, Paul was employed at Georgeson, where he was a Senior Vice President on the M&A Advisory Team and headed the firm’s bankruptcy and restructuring unit.

MacKenzie Partners is a full-service proxy solicitation, investor relations and corporate governance consulting firm specializing in mergers-and-acquisitions related transactions with offices in New York City, Los Angeles, Palo Alto and London,

Paul holds a bachelors degree in Chemical Engineering from Tulane University.

Monday, October 4, 2010

SEC Grants Stay of Proxy Access

On Sept. 29 Business Roundtable and the US Chamber of Commerce filed a legal challenge to the SEC's final rules on proxy access and requested the SEC stay the effectiveness of those rules.  On October 4, the SEC granted that stay.

Excerpted from the Commission's Order:
The Commission has discretion to grant a stay of its rules pending judicial review if it finds that “justice so requires.” Without addressing the merits of petitioners’challenge to the rules, the Commission has determined to exercise its discretion to stay Rule 14a-11 and related amendments to the Commission’s rules, including the
amendment to Rule 14a-8, pending resolution of petitioners’ petition for review by the Court of Appeals.

The Commission finds that, under all of the circumstances of this matter, a stay of Rule 14a-11 and related rule amendments is consistent with what justice requires. Among other things, a stay avoids potentially unnecessary costs, regulatory uncertainty, and disruption that could occur if the rules were to become effective during the pendency of a challenge to their validity. Because the Commission and petitioners will seek expedited review of petitioners’ challenge, questions about the rules’ validity will be resolved as quickly as possible.

The Commission further finds that, under all of the circumstances of this matter, it is consistent with what  justice requires to stay the effectiveness of the amendment to Rule 14a-8 adopted contemporaneously with Rule 14a-11 because the amendment to Rule 14a-8 was designed to complement Rule 14a-11 and is intertwined, and there is a potential for confusion if the amendment to Rule 14a-8 were to become effective while Rule 14a-11 is stayed.

Accordingly, it is ORDERED, pursuant to Exchange Act Section 25(c)(2) and Administrative Procedure Act Section 705, that the motion of petitioners filed on September 29, 2010 for a stay of the effect of Commission Rule 14a-11 and related amendments pending resolution of petitioners’ petition for review by the Court of
Appeals be, and hereby is, granted; and it is further

ORDERED, pursuant to Exchange Act Section 25(c)(2) and Administrative Procedure Act Section 705, that the amendment to Commission Rule 14a-8 adopted on August 25, 2010 is stayed pending resolution of petitioners’ petition for review by the Court of Appeals.

Thursday, September 30, 2010

NYSE Euronext Outlines 10 Core Principles of Corporate Governance


On September 23, 2010, NYSE Euronext's Commission on Corporate Governance released a report identifying 10 fundamental governance principles for investors, issuers, broker-dealers, and other market participants.

The NYSE-sponsored Commission's 10 core principles of strong corporate governance are the following: 
  1. The Board must focus on creating long-term sustainable growth instead of encouraging excessive risk-taking;
  2. Corporate management has a critical role in corporate governance; 
  3. Although NYSE does not limit a board to just one non-independent director, it encourages boards to establish an appropriate representation of independent directors;
  4. Market-based and collaborative governance solutions are preferable to over-reliance on legislation and agency rule-making;
  5. Good corporate governance should be integrated with the company's business strategy and not viewed as simply a compliance obligation;
  6. Shareholders have a responsibility and long-term economic interest to vote their shares in a reasoned and responsible manner, and should engage in a thoughtful dialogue with companies;
  7. Transparency is critical to good governance--while companies should have appropriate disclosure policies and practices, investors should disclose ownership of derivatives or other securities on a timely basis;
  8. Proxy advisory firms serve an important role in the markets, and thus should be held to appropriate standards of transparency and accountability;
  9. The SEC should work with exchanges to ease the burden of proxy voting while encouraging greater participation by individual investors in the proxy voting process; and
  10. The SEC should not only periodically assess the impact of major governance reforms, but should also expand the use of "pilot" programs to help identify any implementation problems before a program is fully rolled out.
NYSE Commission on Corporate Governance's News Report can be found here; its video news release, here; and its full report here.

To view the members of the Commission, click here.

Posted by David Schatz

Wednesday, September 29, 2010

Chevron Shareholder Activist Faces Jail

Antonia Juhasz
We don't usually follow this type of shareholder activism, but the fact that this person is facing jail time for disrupting Chevron's annual meeting during the Q&A session is fascinating.

If you're interested, you can check out Juhasz's book The Tyranny of Oil

Here's the story from MarketWatch
By John Letzing, MarketWatch

As the nation’s second-largest oil company, Chevron Corp. is accustomed to a cavalcade of activists at its annual shareholder meetings.

But Chevron is working with authorities who are prosecuting a particular shareholder activist, who harangued executives at the annual meeting in Houston last May. Antonia Juhasz was removed from the meeting and then arrested outside, after blasting Chevron’s environmental record and starting a derisive chant, according to people at the meeting. The meeting wrapped shortly afterward.

Juhasz has been charged with criminal trespass and disrupting a meeting or procession, and now faces up to six months in jail. She said the charges are an overreaction and doesn’t accept them. Her attorney said they will fight them.

Juhasz’s prosecution may result in an odd instance of a shareholder activist being not just removed, but also arrested and prosecuted for trespass and disruption. It raises questions about the best way for firms to deal with activists who use small amounts of stock to get into annual meetings to make a public statement.

“This is very, very unusual,” says Sanjai Bhagat, a professor at the University of Colorado at Boulder’s Leeds School of Business, when asked if he heard of shareholder activists being faced with jail time for actions at corporate events.

Chevron spokesman Morgan Crinklaw said in a statement that the company is “cooperating fully with the [Harris County, Texas] district attorney’s office as they move forward in their prosecution.”

Juhasz, who runs the energy program at San Francisco-based advocacy group Global Exchange, deferred questions about the shareholder meeting to her attorney, John Parras. Parras said he will argue that Juhasz did not disrupt the meeting, which could have continued after her turn at the microphone during a question-and-answer period. “The larger question is, can shareholders within a corporation use the process to make the corporation better or more responsive to their concerns,” he added.

The incident has led to the hobbling of one of the company’s most vocal critics. Juhasz said she now must limit what she says publicly about the company for fear of hindering her defense.

Chevron’s Crinklaw deferred some questions about the Juhasz case to the district attorney’s office of Harris County, Texas. George Flynn, a spokesman for the office, said the authority to dismiss criminal cases belongs solely to the district attorney’s office, though it “certainly takes the sentiments of the complainants into consideration in making any decision to proceed to trial.” A preliminary court date has been scheduled for Thursday. 



Tuesday, September 28, 2010

Alliance Advisors Enters the Proxy Solicitation Business


Bloomfield, NJ – September 2010 – Alliance Advisors, a proxy management firm founded in 2005, has announced its expansion into the corporate and mutual fund proxy solicitation business. The firm will provide a distinctive brand of services including proxy solicitation, corporate governance consulting, acting as information agent, proxy contests, mutual fund solicitation, asset recovery services and proxy management.

Read the Entire Press Release

Featured Proxy Contest: Barnes & Noble (BKS) v. Yucaipa Companies

Barnes & Noble Announces Preliminary Results of Annual Meeting.    

All three Yucaipa nominees defeated

Yucaipa vows to continue to press for change and calls on Len Riggio to support buyout bids higher than he might make. 
Click here to read Yucaipa's press release.



BACKGROUND
Since early 2009, Hedge Fund Solutions has been closely following billionaire investor Ronald Burkle, founder of The Yucaipa Companies, and his activist campaign targeting Barnes & Noble (BKS).

The Official Activist Investing Blog will be publishing important documents concerning the proxy fight right up until its conclusion (annual shareholder meeting: September 28, 2010). This information includes shareholder correspondence papers, such as "fight letter" issued in press statements and mailed to shareholders; shareholder presentations filed with the SEC and presented to proxy vote advisory firms; relevant ligation cases; and more.

SHAREHOLDER COMMUNICATIONS

Proxy Statements:

9/21/10  BKS revises definitive proxy statement (with supplemental info regarding participants)

Fight Letters:

9/21/10  Yucaipa files letter to shareholders (ISS Recommends "For" Yucaipa)
9/16/10  CEO of BKS letter to shareholders (BKS Strategic Plan Objectives)
9/13/10  Yucaipa letter to shareholders ("Enough with the Fiction")
9/9/10    BKS letter to shareholders (highlighting board steps to increase value)
9/1/10    BKS letter to shareholders (The Future of Barnes & Noble is at Stake")
8/30/10  Yucaipa letter to shareholders ("Don't Be Misled By Barnes & Noble")
8/25/10  BKS letter to shareholders ("Protect Your Investment in Barnes & Noble")

Press Releases and Other Communications:
9/27/10 BKS Responds to Yucaipa's Press Release (claims that BKS' special committee members are independent)
9/27/10 Yucaipa Files Press Release (tells BKS shareholders that Leonard Riggio can't be trusted)
9/24/10 Yucaipa Counter-Responds to BKS' Claims (criticizes BKS for "fear mongering")
9/24/10 BKS Responds to Yucaipa's Press Release (calls Yucaipa's press release "misleading")
9/23/10 Yucaipa Sends Letter to BKS Employees (calls on employees to vote against Riggio's wishes)
9/21/10  BKS Files Press Release (update on strategic review process + proxy advisory support + more)
9/21/10  Yucaipa Files Press Release (calls on BKS stockholders to "Unlock Value")
9/20/10  Yucaipa Files Press Release (ISS supports Yucaipa)
9/17/10  BKS additional proxy statement materials (explanation of how to vote by proxy)
9/16/10  Yucaipa clarification for media (general response to media inquiries)
8/31/10  Barnes & Noble Communication to Employees (how to vote with management)

Litigation:


ACTIVIST INVESTOR INFORMATION:
Seeking three board seats on eleven member board; increasing threshold on the poison pill to 30%; forming partnership with technology company; and getting BKS to buy out at least part of its competitor, Borders Group, Inc.

YUCAIPA DIRECTOR NOMINEES:

BARNES & NOBLE DIRECTOR NOMINEES:

TOP 5 INVESTORS:
Leonard Riggio (29.8%; voting: 28.2%)
Ronald Burkle (18.8%)
BlackRock Institutional Trust Company (4.0%)
Dimensional Fund Advisors (3.4%)

ADVISORS:
Legal counsel to BKS on proxy fight: Cravath, Swaine & Moore
Legal counsel to BKS special board committee to review strategic alternatives:  Morris Nichols
Legal counsel to Yucaipa: Bingham McCutchen
Investment banking advisor BKS to review strategic alternatives: Lazard
Proxy solicitor to BKS: Innisfree M&A
Proxy solicitor to Yucaipa: MacKenzie Partners
Public relations advisor to Yucaipa: Sitrick & Company

Posted and updated by David Schatz and Damien Park