All Things Digital

If I go down, you all go down. That’s the personal philosophy former CA CEO Sanjay Kumar appears to have embraced after serving a few years in prison for conspiracy, securities fraud and obstruction of justice. In a 27-page affidavit filed in court Tuesday, the disgraced Kumar claims that several current and former directors were aware of the company’s … generally unaccepted accounting practices and concealed them from government investigators. Smeared in the affidavit: board members Lewis Ranieri and former U.S. Senator Alfonse D’Amato, as well as company co-founder Russell Artzt and former CEO Charles Wang.

Kumar alleges they were all aware of the infamous “35-day month” ploy for which he and eight other former CA (CA) officials took the fall. “Wang was not only aware of the accounting improprieties, such as the 35-Day Month, he also actively participated in concealing those improper accounting practices. … Wang knew that CA’s quarters were ‘open’ for five days into the next month per his directive, and he sometimes instructed CA to keep CA’s books ‘open’ after the usual ‘five days’ to execute license agreements and recognize revenue from those agreements in the previously ended quarters.”

Damning allegations and ones Wang, D’Amato, et al., vigorously deny.
Said a spokesman for Ranieri and D’Amato: “[Kumar] from jail continues to be a stranger to the truth.”

Carl Icahn has finally broken his silence. The outspoken billionaire investor, who’s been oddly quiet since Yahoo (YHOO) announced its advertising partnership with Google (GOOG), finally commented on the deal this morning, saying it “might have some merit.”

In a brief interview with Reuters, Icahn seemed oddly reserved for someone who, up until last week, had always been ready with an unkind word and an outstretched middle finger for Yahoo and its fumbling leadership. Apparently, holding 59 million shares in a company that’s somehow managed to undermine a merger deal with Microsoft (MSFT) that would have valued it at up to $47.5 billion has taken some of the spring out of his step. “While the Google deal is not the same as an offer of $34.375 per share for Yahoo, I am continuing to study it, and it might have some merit,” Icahn said. “I continue to be extremely disappointed with the Yahoo management, but the Google deal might have some merit and seems to be better than the alternative deal proposed by Microsoft.”

Icahn offered no comment on the future of his proxy fight for the company’s board, though one would imagine he must be having some second thoughts about it now that Microsoft has thrown up its hands in disgust and has apparently walked away from the negotiating table for good. And the “change of control” provisions that allow Google or Yahoo to terminate the partnership they’ve just inked in the event that a majority of Yahoo’s board is replaced at its upcoming annual shareholders meeting in August can’t be sitting well with him either.

But not to worry, dissident Yahoo investor Eric Jackson has a plan that may right the company and prevent its current proprietors from driving down its value once again. He’s urging fellow shareholders to vote for a board slate that includes four directors proposed by fellow activist Carl Icahn and five from Yahoo. “I want Icahn to win outright, but I am putting forward this ‘third option’ because I fear several large investors will worry about the operational abilities of Icahn and his team,” Jackson wrote in an essay entitled “Third Option for Yahoo.”

So who would Jackson like to see elected to Yahoo’s board? From Icahn’s slate he recommends Adam Dell, Lucian Bebchuk, John Chapple and Edward Meyer. And from Yahoo’s existing board Vyomesh Joshi, Robert Kotick, Maggie Wilderotter, Gary Wilson and Jerry Yang.

Jerry Yang? Really?

“Although I have been disappointed with the results of Jerry Yang’s tenure as CEO and hold him accountable for the poor outcome with Microsoft, I believe that–as a co-founder–he should remain on this board,” Jackson explained. “Whether or not he remains as CEO is something for the new board to determine. I frankly hold Mr. Bostock [Yahoo Chairman Roy Bostock] more responsible for the breakdown in talks with Microsoft. He supposedly has much more experience in such deal-making matters than Yang, and I find it puzzling that he would choose not to attend that fateful May 3 meeting in Seattle, which led to Microsoft finally pulling the plug on their offer.”

Carl Icahn’s a little quieter than usual today, isn’t he?

After publicly cataloguing Yahoo’s (YHOO) failures of leadership for the better part of the week, he seems to have fallen silent after what may prove to be the company’s greatest failure of all.

Perhaps that’s because he’s still hard at work penning a letter so full of spleen and vitriol it will melt Jerry Yang’s head like Belloq’s in “Raiders of the Lost Ark.”

Or perhaps it’s because he’s not that worried about the Google (GOOG) deal. After all, it’s got all sorts of things going against it. There’s antitrust scrutiny. And then there are its terms. According the deal’s fine print, Google is free to scuttle the agreement in the event of a “change in control.” And that includes changes of control in the boardroom–exactly the sort of thing Carl Icahn proposes.

The services agreement also permits Google to suspend performance of the services under certain circumstances, including a … change in a majority of the board of directors of Yahoo following an annual or special meeting of stockholders if a majority of the new directors did not serve on Yahoo’s board immediately prior to such stockholder meeting and were nominated or solicited for by Microsoft, Time Warner or News Corp. or, solely with respect to Yahoo’s first two annual or special meetings held after the effective date where the election of a majority of directors is before Yahoo stockholders (but not later than Sept. 1, 2009), by any other person or group.”

Our long national nightmare of unceasing Yahoo-Microsoft headlines is finally over. Shares of Yahoo (YHOO) slipped into the mud this afternoon after the company said it had concluded, “definitively,” whatever spectacularly unrewarding discussions it’s been having with Microsoft (MSFT) without reaching any sort of merger agreement. Redmond, it seems, is no longer willing to pay $33 per share to acquire Yahoo.

Meanwhile, Yahoo and Google (GOOG) moved to complete a search-ad deal.

Dueling statements from Yahoo and Microsoft on the conclusion of their negotiations below. (Carl Icahn’s outraged letter on the whole matter presumably forthcoming…)

Yahoo Announces Microsoft Talks Have Concluded

Yahoo, a leading global Internet company, today announced that discussions with Microsoft regarding a potential transaction–whether for an acquisition of all of Yahoo or a partial acquisition–have concluded. The conclusion of discussions follows numerous meetings and conversations with Microsoft regarding a number of transaction alternatives, including a meeting between Yahoo and Microsoft on June 8 in which Chairman Roy Bostock and other independent board members from Yahoo participated. At that meeting, Microsoft representatives stated unequivocally that Microsoft is not interested in pursuing an acquisition of all of Yahoo, even at the price range it had previously suggested.

With respect to an acquisition of Yahoo’s search business alone that Microsoft had proposed, Yahoo’s board of directors has determined, after careful evaluation, that such a transaction would not be consistent with the company’s view of the converging search and display marketplaces, would leave the company without an independent search business that it views as critical to its strategic future and would not be in the best interests of Yahoo stockholders.

Yahoo remains focused on maximizing value for stockholders by continuing to execute on its strategy of being the ’starting point’ for the most consumers on the Internet and a ‘must buy’ for advertisers. The online-advertising industry is projected to grow from $40 billion in 2007 to approximately $75 billion in 2010, and the company believes it has the right assets, strategic plan, board of directors and management team to capitalize on this growth opportunity.”

Microsoft Issues Statement Regarding Yahoo

In the weeks since Microsoft withdrew its offer to acquire Yahoo, the two companies have continued to discuss an alternative transaction that Microsoft believes would have delivered in excess of $33 per share to the Yahoo shareholders. This partnership would ensure healthy competition in the marketplace, providing greater choice and innovation for advertisers, publishers and consumers.

As stated on May 3 and reiterated on May 18, Microsoft was not interested in rebidding for all of Yahoo. Our alternative transaction remains available for discussion.”

Have you heard? Carl Icahn is unhappy with Yahoo’s current leadership and the manner in which it handled Microsoft’s unsolicited acquisition offer. In a stink-bomb of a letter to Roy Bostock, the chairman of Yahoo’s board of directors, Icahn accused Yahoo (YHOO) of acting against its shareholders’ best interests by making it practically impossible for Microsoft (MSFT) to stay at the bargaining table.

“Until now I naively believed that self-destructive doomsday machines were fictional devices found only in James Bond movies,” Icahn wrote, referring to Yahoo’s highly unusual severance plan that would have rewarded employees who left the company after a change in ownership. “I never believed that anyone would actually create and activate one in real life. I guess I never knew about Yang and the Yahoo Board.”

Doomsday machines? James Bond movies? Did Yahoo appoint Richard Kiel to its board and not tell anyone?

Oh, and by the way, the name’s Icahn … Carl Icahn.

His letter follows.

Read more »

Turns out Jerry Yang isn’t the only Yahoo CEO to reject a buyout offer from Microsoft. His predecessor Terry Semel did as well. According to a complaint unsealed as part of a proposed class-action suit against Yahoo’s directors today, Microsoft (MSFT) offered $40 a share for Yahoo (YHOO) in January 2007. And the company refused it, just as it would later refuse the $33-per-share bid that followed a year later.

But that’s just a sidenote to the larger issues in the suit, which charges Yahoo’s directors with breach of fiduciary duty for not just rejecting Microsoft’s proposed deal, but also for going to great lengths to make it an unappealing acquisition target. “Due to their personal interests in maintaining Yahoo’s independence and their strong antipathy to Microsoft, [Yahoo co-founders Jerry Yang and David Filo] failed to consider and respond in good faith to the acquisition offers by Microsoft to the detriment of Yahoo and its shareholders,” the complaint argues. The two “used the threat of pursuing measures that make Yahoo an unattractive acquisition target, including the prospect of Yahoo abandoning its long-term business strategy in favor of a tie-up with Google that would make a Microsoft acquisition a regulatory and litigation quagmire, as an improper means to thwart Microsoft’s advances.” Moreover, “Yang convinced the board to adopt change-in-control employee severance plans that impose tremendous costs and risk for an acquirer, throwing sand in the gears of Microsoft’s plans for a smooth integration. These highly unusual plans reward employees with rich benefits if they quit and claim a constructive termination in the aftermath of a change in control.”

The plans at issue here, which would have cost Yahoo $1.5 billion, provided 100% equity acceleration for all employees. It is “a bizarre outcome if people who stick around make off worse financially than people who are laid off,” one Yahoo VP said of the plan. The company’s compensation consultant had a better word for it: “nuts.”

What was it Yang said during his interview at D6 last week? “I will probably never be a CEO again?“

Hey, he said it, not I.

Yahoo’s board has–surprise!–advised shareholders to reject the slate of dissident directors put forward by billionaire investor-agitator Carl Icahn. “We do not believe that election of the Icahn Entities’ nominees to our Board of Directors is in the best interests of our stockholders,” Yahoo (YHOO) said in a preliminary proxy statement filed with the Securities and Exchange Commission this afternoon.

The only difference between Yahoo (YHOO) CEO Jerry Yang’s latest all-hands memo and the last one he broadcast is that “Carl Icahn” has been substituted for “Microsoft” (MSFT). Other than that, it’s another tired restatement of the capitalization-free “try not to get too preoccupied with the ongoing assault on our company” missives that Yang has issued at least twice before.

Anyway, here it is in all its keep-your-head- in-the-sand glory.

Read more »