All Things Digital

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.”

Shareholders suing Yahoo’s (YHOO) board of directors for its alleged mishandling of the Microsoft (MSFT) buyout offer may find their efforts to pull the company’s controversial severance plan something of a fool’s errand. Because according to a new company filing, their chances of forcing Yahoo to scrap the plan are about as good as their chances of forcing CEO Jerry Yang to use capital letters in his all-hands memos, just like a big boy. Which is to say, middling to lousy at best.

In an SEC filing late today, the company noted that it cannot simply terminate the severance plan, as some shareholders, and one in particular, would like. From Yahoo’s filing:

Can the board simply terminate or cancel the plan now as suggested by Mr. Icahn?
No. Under the terms of the plan, it cannot be terminated once a person has publicly announced the intention to take an action, which if consummated, would constitute a change in control until one month following the abandonment of the potential change in control. The actions covered include, among others, the announcement by any person of an intention to acquire the company as well as a proxy contest to take over a majority or more of the board (such as that announced by Mr. Icahn). Accordingly, the plan can’t currently be terminated or canceled. The plan can be terminated one month following the abandonment of the actions creating a potential change in control.”

Suffice to say, the litigious among Yahoo’s shareholders are not at all pleased with this particular feature of the plan and have filed a motion requesting a trial to remove it before Yahoo’s annual meeting in August. “A prompt trial on the validity of the severance plans is now essential and appropriate,” they argued in a brief filed today, “not least because Yahoo’s board disabled itself from rescinding the severance plans during the pendency of a proxy fight, even if doing so is essential to realizing a favorable deal, and because Icahn’s slate is barred from rescinding the severance plans if it prevails in its proxy contest.”

Looks like billionaire investor Carl Icahn will only need nine of the 10 dissident directors he’d hoped to appoint to Yahoo’s board. Longtime Yahoo Director Edward Kozel resigned today, reducing the company’s board from 10 members to nine.

Yahoo (YHOO) claims Kozel’s departure, which coincides with the postponement of the company’s annual shareholder meeting from July 3 to “around the end of July 2008,” has nothing to do with the battle over Microsoft’s (MSFT) takeover bid and the proxy war with Icahn. Kozel, it seems, just wants to–you guessed it–“spend more time with family.”

Can a search-advertising alliance between Yahoo and Google possibly pass regulatory muster? We may soon find out.

Now that investor-tormentor Carl Icahn has filed a proxy slate to unseat Yahoo’s board with the intent, one way or another, to push the company back into merger negotiations with Microsoft (MSFT), an obviously panicked Yahoo (YHOO) is scrambling to pull together a search-ad deal with Google (GOOG).

The possibility of a search-ad outsourcing arrangement between the two companies was, in part, what caused Microsoft to lose its appetite for Yahoo. Could it cause Icahn to lose his as well? Seems doubtful. Even if, as sources close to the situation tell the New York Post, the deal is the sort of open-to-all-comers arrangement Yahoo and Google hope would pass regulatory scrutiny. Under its terms, a real-time auction system would be used to select the most lucrative ads for a given search query from among those sold by Yahoo, Google or anyone else that cares to participate. Structured in this way, the deal might not, as Microsoft has claimed in the past, consolidate over 90% of the search-advertising market in Google’s hands and draw the ire of antitrust regulators.

Instead it might consolidate, oh say … 89.99% in the search sovereign’s hands. Said Kevin Lee, chairman of search engine marketing firm Did-It, “Given the way the ecosystem is put together now, Google would probably be the winner in a vast majority of cases.”

If, as Carl Icahn claimed this morning, Yahoo’s board has acted irrationally and lost the faith of shareholders, the Internet company apparently sees no point in acting rationally to regain it. In a letter to the investor-agitator, Yahoo (YHOO) Chairman Roy Bostock dismissed Icahn’s threat of a proxy battle nearly as brusquely as it turned away Microsoft (MSFT) (the press release bullet alerts below summarize the letter quite nicely).

According to Bostock and Co., Icahn just doesn’t get it (and, to be fair, there are some who agree). “Your letter reflects a significant misunderstanding of the facts about the Microsoft proposal and the diligence with which our board evaluated and responded to that proposal,” Bostock wrote. “A fair-minded review of the factual record leads to one conclusion: that Yahoo’s 10-member board, comprised of nine independent directors along with Yahoo CEO Jerry Yang, remains the best and most qualified group to maximize value for all Yahoo stockholders. Conversely, we do not believe it is in the best interests of Yahoo stockholders to allow you and your hand-picked nominees to take control of Yahoo for the express purpose of trying to force a sale of Yahoo! to a formerly interested buyer who has publicly stated that they have moved on. Please may I remind you that there is currently no acquisition offer on the table from that company or any other party.”

Well, no acquisition offer that Bostock knows of, anyway. Microsoft may not be finished with Yahoo yet. “We think Microsoft may still be interested [in Yahoo] as, in our view, it needs Yahoo to compete vs. Google,” wrote UBS analyst Ben Schachter in a research note today. “We continue to think a deal will be reached.”

The leadership of CNET Networks Inc. (“CNET” or the “Company”) has presided over massive value destruction, with CNET’s shares declining (21)%, (52)% and (25)% in the one, two and three year periods ended March 28, 2008, respectively, compared to (1)%, 6% and 39% returns, respectively, for its stated benchmark peer index. CNET has also consistently underperformed numerous peers in profitability and growth, ranking last among these peers in key metrics, as set forth herein. This underperformance comes despite CNET’s premiere assets, including the tenth largest collection of Internet sites in the world and strong brands and content.”

–Jana Partners, CNET: Value-Unlocking Change for All Shareholders

“The Stars’ Address is CBS.” And now it is CNET Networks’ (CNET) as well. CBS this morning said it agreed to buy the Internet news and entertainment laggard for $1.8 billion in cash. The deal values CNET at about $11.50 per share–a 44.6% premium to yesterday’s closing price of $7.95. That’s $.50 more than the $11 Jana Partners, the investment management firm plotting a proxy fight for control of the company’s board, had hoped to squeeze out of CNET, so presumably even dissident investors are glad to see CBS (CBS) stepping in here.

The deal, expected to close in the third quarter, will vault CBS into the top 10 Internet companies in the United States, with a combined 54 million unique visitors monthly, and about 200 million visitors worldwide. CBS CEO Les Moonves says he expects interactive revenues to hit $1 billion by 2010. “I think the ability of this company to grow together with us just made sense for right now,” Moonves told paidContent. “We’ve stated our goals are to expand in three areas: content, Internet and outdoor. This accomplished two of the three.”

Looks like Yahoo’s (YHOO) boardroom blitz is on. Billionaire investor Carl Icahn has decided to move forward with a proxy fight to oust Yahoo’s entire board in favor of one more amenable to merger negotiations with Microsoft (MSFT).

“It is unconscionable that you have not allowed your shareholders to choose to accept an offer that represented a 72% premium over Yahoo’s closing price of $19.18 on the day before the initial Microsoft offer,” Icahn wrote in a letter to Yahoo’s leadership. “I and many of your shareholders strongly believe that a combination between Yahoo and Microsoft would form a dynamic company and more importantly would be a force strong enough to compete with Google on the Internet.”

So strongly, in fact, that Icahn–who owns 59 million Yahoo shares–has asked the Federal Trade Commission for permission to buy as much as $2.5 billion more of the company’s stock and has assembled a 10-member alternative board slate. Among the directors nominated, Icahn himself, his lieutenant Keith Meister, former Viacom Inc. (VIA) Chief Executive Frank J. Biondi Jr., and Dallas Mavericks owner Mark Cuban (Mark Cuban?!?).

And lest there be any doubt that Icahn was gunning for anything less than a referendum on Microsoft’s takeover offer, the financier concluded his letter with a parting word of advice: “I sincerely hope you heed the wishes of your shareholders and move expeditiously to negotiate a merger with Microsoft, thereby making a proxy fight unnecessary.”

What’s not yet clear is whether Microsoft is even willing to resume merger talks. Though it’s certainly possible that Microsoft CEO Steve Ballmer and Icahn have been having some back-channel chats about the issue recently …

Yahoo and Microsoft are both trading higher on the news.

Carl Icahn and Yahoo. Could it be any more perfect? Icahn specializes in shaking up companies suffering from critical failures in oversight and leadership. Yahoo (YHOO) is the very definition of that. So it’s no surprise to hear that the billionaire investor has amassed roughly 50 million Yahoo shares in anticipation of a proxy fight to nominate new directors at the company’s annual meeting this summer.

If there’s anyone that can strong-arm Yahoo back into merger negotiations, it’s Icahn. He has forced a number of companies to face unpleasant realities that they would have otherwise preferred to avoid. That said, the unpleasant reality in this particular case is no longer on the table. But it may not yet have walked so far away that it can’t be dragged back to it.

Said S&P Internet analyst Scott Kessler: “If I were an activist, the first call I’d make would be to Microsoft (MSFT) and make sure that offer of $33 would still be available.” Best make that call soon too. The deadline for nominating new Yahoo directors is Thursday.