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Third Management Argument Against Shareholder Right to Vote on Director Indemnification

(November 4 and November 10, 2003)

The attorney engaged by Farmer Bros. management sent a third letter to the Securities and Exchange Commission ("SEC") on November 4, 2003 with additional arguments against allowing shareholders to vote on the proposal of Franklin Mutual Advisers, LLC.  (Note: The proposal is for a shareholder vote to determine whether past conduct of the company's directors met the standard required for indemnification, according to the existing provisions of the company's current Bylaws and Section 317 of the California Corporations Code.  The proposal does not, as the attorney's letter suggests, involve any changes of the existing provisions for director indemnification rights.)  A copy of this letter is available from a link, below.

Franklin Mutual responded in a November 10, 2003 letter to the SEC, the text of which is copied below.

Management's attorney had initially submitted a ten-page letter on September 12, 2003 arguing against the proposal, to which Franklin Mutual had responded in an October 2, 2003 letter.  A second set of arguments was initiated by management's attorney in a four-page letter on October 15, 2003, to which Franklin Mutual had responded on October 28, 2003.

 

 

 

[letterhead]

Franklin Mutual Advisers, LLC

51 John F. Kennedy Parkway
Short Hills, NJ 07078
tel 800/760-1955
 

November 10, 2003

VIA email to: cfletters@sec.gov

and FAX to 202.942.9525
  (Original and 6 copies via overnight delivery)

Grace K. Lee, Esquire
Division of Corporate Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549

Re:       Farmer Bros. Co. (the “Company”)
            Shareholder proposal (the “Proposal”) of Franklin Mutual Advisers, LLC
            Response to the Company’s November 4, 2003 letter

Dear Ms. Lee:

Quite frankly, I am unable to follow the logic of the arguments posed by Counsel for the Company. Counsel asserts that a determination by the Company’s shareholders under California Corporations Code (“CCC”) §317(e) that directors’ past conduct failed to meet the standards for Permissive Indemnification would constitute a breach of the Company’s contract to indemnify its directors. Presumably, Counsel’s rationale would be just as applicable to the Company’s directors. In other words, Company’s counsel appears to argue that the Company’s Articles and Bylaws grant the Company’s directors a blanket right to Permissive Indemnification which cannot be “retroactively” denied by shareholders, the directors, or anyone else, which is an absurd conclusion.[1]

As stated previously, the Company’s Articles and Bylaws do not imply such a conclusion. By their very terms, they seek to provide directors all the rights to indemnification allowed by statute. And as stated before, the statute allows shareholders to make the determination whether or not directors’ conduct has met the standards for Permissive Indemnification.[2]

The very purpose of the Proposal is to further the public policy underpinning CCC§317, which is to ensure that directors of a company adhere to certain minimal standards before availing themselves of the benefits of Permissive Indemnification. The statute explicitly gives shareholders the right to make such determination. Including the Proposal in the Company’s proxy materials does not foreclose the Company’s ability to seek a determination that its interpretation of the statute is correct. However, excluding the Proposal would irrevocably deny the Company’s shareholders the opportunity to exercise their statutory right.

If you have any questions or require any other information, please do not hesitate to contact me via telephone (973.912.2152), fax (973.912.0646) or email at (bradt@msfi.com).

Yours truly,

 

Bradley Takahashi

 

cc: jgiunta@skadden.com


 

[1] Furthermore, if all determinations regarding past conduct would be an improper “retroactive” breach of contract, the only conduct which either shareholders or directors could review for Permissive Indemnification purposes, would be future conduct, which of course, is a logical impossibility.

[2] Counsel’s assertion that CCC 317(h) would retroactively deny Permissive Indemnification (see footnote 1 of Counsel’s letter dated November 4, 2003) is inexplicable. The Proposal is based upon CCC§317(e).

 

 

The Forum is open to all Farmer Bros. shareholders, whether institutional or individual, and to professionals concerned with their investment decisions.  Its purpose is to provide shareholders with access to information and a free exchange of views on issues relating to their evaluations of alternatives.  As stated in the Forum's Conditions of Participation, participants are expected to make independent use of information obtained through the Forum, subject to the privacy rights of other participants.  It is a Forum rule that participants will not be identified or quoted without their explicit permission.

There is no charge for participation.  Franklin Mutual Advisers, LLC, the manager of funds owning approximately 12.6% of Farmer Bros. shares, provided initial sponsorship for the Forum and arranged for it to be chaired by Gary Lutin.  Continuing support and guidance of the Forum is provided by an Advisory Panel of actively interested shareholders.

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