DealLawyers.com Blog

Here’s news from this blog by Davis Polk’s Ning Chiu:

While notices of exempt solicitations are becoming more common, they usually do not involve a proponent’s tweets about the company, as is the case with Carl Icahn and the Apple annual meeting proxy statement. Icahn and affiliates submitted an advisory proposal that Apple commit to completing not less than $50 billion of share repurchases during its 2014 fiscal year.

Since then, the proponent has filed notices of exempt solicitations, located on Apple’s SEC Edgar site, that include tweets such as: “Bought another $500mil of $AAPL tday, bringing our total to 3.6 billion. If board doesn’t see AAPL’s ‘no brainer’ value we sure do.” and “We feel $APPL board is doing great disservice to shareholders by not having markedly increased its buyback. In-depth letter to follow soon.” Most recently, a new notice included just this tweet: “Just bought $500 mln more $AAPL shares. My buying seems to be going neck-and-neck with Apple’s buyback program, but hope they win that race.”

It has also been reported that Icahn sent eBay a shareholder proposal seeking a non-binding vote on whether the company should spin off PayPal, its electronic-payments business. While this type of proposal is unusual, with less than 10 since 2005, a similar proposal to Timken from Relational and Calstrs in 2013 passed, as we discussed here, and led to the company agreeing to spin off its steel unit.

Less noticed was a proposal at Hamden Bancorp’s November 2013 annual meeting in connection with a proxy contest led by Clover Partners, asking that the company’s board explore enhancing shareholder value through an extraordinary transaction, including selling or merging the company. The SEC staff declined to permit the proposal to be excluded due to vagueness or ordinary business grounds, and the proposal ultimately received 48% support. In a press release announcing the results, the company indicated that it retained an investment bank to help it identify and evaluate various strategic and/or operating scenarios intended to maximize shareholder value.

Meanwhile, here’s an excerpt from this blog by “The Activist Investor”:

Late last month we considered why Carl Icahn might get mixed up with non-binding (precatory) proposals at Apple and eBay. We speculate that he studied the strategy that Ralph Whitworth at Relational Investors and CalSTRS undertook at Timken, where a non-binding proposal probably helped speed along the decision to spin-off its steel business. We conclude Icahn may do this because starting this year, shareholder proposals can pressure corporations in new ways.

It seems Jeff Smith at Starboard Value studied the same strategy. This week Starboard announced its plan to submit a non-binding resolution opposing Darden Restaurants’ announced spin-off of its Red Lobster business. And, Starboard intends to call a special shareholder meeting for the sole purpose of voting on that resolution. In addition to presenting some interesting strategic choices, it seems that Starboard may not have any other option for opposing the spin-off.

It comes down to winning the hearts and minds of other investors. The extent of support for resolution and special meeting constitute an early sign of what other investors think about the Starboard and Darden plans for the company.