The Shareholder Forum

supporting investor interests in long term enterprise value

 

Purpose & History of Services

The Shareholder Forum

The Shareholder Forum supports investor interests in corporate enterprise value with services that require independence – and that may benefit from the Forum’s network resources and recognition for advocacy of long term investor interests – to assure a definition of relevant issues and fair access to information that can be relied upon by both corporate and investor decision-makers.

The policies that provide a foundation for the Forum’s marketplace functions have been carefully developed and tested to allow any investor to participate in its communications, either anonymously or visibly, without acting in concert. Established originally to accommodate professional fund managers, this independent moderator function has proved to be consistently effective in managing orderly processes of issue definition for rational analysis by fiduciaries who are responsible for informed decisions.

Initiated in 1999 by the New York Society of Security Analysts with lead investor and former corporate investment banker Gary Lutin as guest chairman to address the professional interests of its members, and independently supported by Mr. Lutin since 2001, Forum programs have achieved wide recognition for their effective definition of important issues and orderly exchange of the information and views needed to resolve them. The Forum's ability to convene all key decision-making constituencies and influence leaders has been applied to subjects ranging from corporate control contests to the establishment of consensus marketplace standards for fair disclosure, and has been relied upon by virtually every major U.S. fund manager and the many other investors who have participated in programs that addressed their interests.

Currently important applications of the Forum’s independent position include the support of corporate managers who wish to provide the leadership expected of them by responding to activist challenges with orderly reviews of issues relevant to long term investor interests.

Requests for Shareholder Forum consideration of support may be initiated confidentially by any investor or by the subject company, or by the professional advisors to either.

 

 
Corporate Governance Highlights

 

 

Vol. 12, No. 26

June 29, 2001

 
 Two of the Summer’s Hottest Proxy Fights Continue to Sizzle
DISSIDENTS CONTINUE TO FAN THE FLAMES. The plots continue to thicken in two high profile proxy fights. In the battle between Lone Star Steakhouse & Saloon and dissident Guy Adams, the U.S. District Court for the District of Kansas ruled June 25 that Adams could continue his proxy fight as along as he made two corrections to his SEC filings. The company had sued the dissident over disclosures he made to shareholders. The company claimed in its suit that Adams’ proxy solicitation materials violated federal securities laws (1) by failing to disclose the existence of participants that Lone Star says are “unlawfully financing and supporting his efforts”; (2) by falsely stating the financial consequences to Lone Star of certain employment agreements between Lone Star and members of its management; and (3) by making misleading statements regarding alleged support that he has received from shareholders of Lone Star.
 
Adams said the ruling represented a victory because the court did not decide that he was part of larger group of shareholders. If this had been the case, he would have had to refile his disclosures before the July 6 shareholder vote. The company also expressed satisfaction with the ruling. “We are very pleased that the federal court moved to protect Lone Star’s stockholders by ordering Guy Adams to correct his false and misleading statements. The finding vindicates our decision to seek legal recourse against Guy Adams for attempting to mislead our stockholders through the use of false and illegal proxy activities and impugn the integrity of our board,” said a news release issued by Lone Star.
 
On June 28, Adams submitted definitive additional materials to the SEC clarifying the statements that were ruled to be incorrect by the court.  n his original proxy filing he said that the holders of more than 13 percent of the shares outstanding had advised him that they intended to vote for him instead of voting for Lone Start CEO Jamie Coulter. Adams also said he had commitments from a number of individual shareholders.  “These statements are incorrect,” says the new filing. “At the time the statements were made, I had approximately 12.65 support. I subsequently learned that one of the large shareholders to which I was referring sold off some of its stock which downwardly affected the percentage estimate of oral support that I gave in that statement. Additionally, I did not have support from a ‘number of indivdual stockholders,’” it goes on to say.
 
Adams’ new filing also clarifies statements that he made about the golden parachute contracts that Lone Star executives were eligible to receive. “I read the golden parachute contract that had been granted to Mr. Coulter, and assumed—in error—that the same basic contract had been given to each of the seven senior executives. I have subsequently learned that the contracts are different,” he explains.
 
INSTITUTIONAL INVESTORS VOICE OBJECTIONS TO LITIGATION. Before the court ruling, Sarah Teslik, executive director of the Council of Institutional Investors, and Con Hitchcock, attorney for the LongView Collective Investment Fund, each sent letters to Lone Star executives and board members objecting to the company’s litigation against Adams. “Though litigation can be a legitimate alternative, the council believes that directors have a duty to ensure that the courts are being used to settle actual and substantial legal disputes but not to impede the efforts of opposing shareholders,” Teslik writes. Her letter takes issue with the fact that the company sought “extensive and intrusive” discovery from Adams and delved into his divorce. “That kind of tactic can deter shareholders from voicing important issues through the proxy solicitation system,” she says. Teslik urges Lone Star directors to “ensure that the company’s legal responses to Mr. Adams’ proxy contest are proportionate and appropriate,” to monitor the litigation and to ensure that shareholders are given the opportunity to select their choice for a representative to the board.
 
Hitchcock’s letter also questions some of Lone Star’s legal manuevers. His fund is concerned about “some of the tactics used in the litigation, notably the decision to subpoena and take discovery from an institutional investor (Calpers) that had indicated support of Mr. Adams,” he writes. “Harassing your shareholders in this fashion is not a good way to instill investor confidence in the management team or in the judgement of the board,” the letter warns. “For Lone Star to go after an institutional investor for having the temerity to question the company’s performance is unacceptable, and we encourage the board to repudiate these tactics. Your shareholders, particularly institutional shareholders, are not the enemy, and they should not be treated as such,” Hitchcock adds.
 
THE OTHER FIERCE PROXY BATTLE, this one being waged by Sam Wyly against the management at Computer Associates International, continues to draw a great deal of media attention. Computer Associates’ largest shareholder, Walter Haefner, sent a letter to Wyly on June 22 saying he would support the company’s management in the fight for control of the board, reports The New York Times. “I have complete confidence in the existing C.A. management team and intend to support them fully,” The Times reports Haefner said in the letter. Haefner, a Swiss billionaire owns 21 percent of Computer Associates’ shares.
 
In other news related to this fight, on June 25, the company added two directors, raising the total number of board seats to 10. Linus Cheung, chairman of Pacific Century CyberWorks, and Lewis Ranieri, of Salomon Brothers are the additions.
 
 
 
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Investor Responsibility Research Center

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Tel: (202) 833-0700

Fax: (202) 833-3555

cgs@irrc.org     

 

Editor: Rosemary Lally

Contributors: Timothy Hunt and Cristina Yen

 

 

 

 

Inquiries, requests to be included in email distribution lists, and suggestions of new Forum subjects may be addressed to inquiry@shareholderforum.com.

Publicly open programs of the Shareholder Forum are conducted for free participation of all shareholders of a subject company and any fiduciaries or professionals concerned with their decisions, according to the Forum’s stated "Conditions of Participation." In all cases, each participant is expected to make independent use of information obtained through the Forum, and participation is considered private unless the party specifically authorizes identification.

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Shareholder Forum™ is a trademark owned by The Shareholder Forum, Inc., for the programs conducted since 1999 to support investor access to decision-making information. It should be noted that we have no responsibility for the services that Broadridge Financial Solutions, Inc., introduced for review in the Forum's 2010 "E-Meetings" program and has since been offering with the “Shareholder Forum” name, and we have asked Broadridge to use a different name that does not suggest our support or endorsement.