All Things Digital

Yahoo’s attempts to rally shareholders in advance of its annual meeting on Aug. 1 are going about as well as its attempts to rally its business. Which is to say, not well at all.

In a regulatory filing urging shareholders to vote for its incumbent board of directors at the upcoming annual meeting, Yahoo (YHOO)
characterized Microsoft’s (MSFT) position throughout the two companies’ acquisition talks as “unresponsive and inconsistent.”

Which is ironic, because the same can be said of Yahoo’s turnaround strategy and its share price as well. Yahoo’s shares were trading at $19.18 the day before Microsoft announced its $31-per-share bid for the company. Six months later they’re trading at $19.65, not 50 cents from where they started.

“We know what Yahoo’s worth,” Microsoft CEO Steve Ballmer said back in April. “$44 billion is a lot of money. If Yahoo’s shareholders like it, that’s great. We are prepared to go forward without a merger with Yahoo. … Time is money.”

It certainly is.

Get this. Yahoo’s merger talks with Microsoft collapsed because the software giant wasn’t fully committed to them. This, presumably according to the same folks at Yahoo (YHOO) who would have us believe the company didn’t learn of Microsoft’s (MSFT) offer of $33 per share until Microsoft CEO Steve Ballmer’s kiss-off letter to Yahoo CEO Jerry Yang.

According to a shareholder presentation the group filed with the SEC, Yahoo believes that “the record casts doubt on whether Microsoft was ever committed to a whole company acquisition.”

The record casts doubt on whether Microsoft was ever committed to a whole-company transaction? Really? Are we all talking about the same record here? Because in the public one that I’ve been looking over, Microsoft sounds pretty damn committed. A few examples:

Microsoft’s consistent belief has been that the combination of Microsoft and Yahoo clearly represents the best way to deliver maximum value to our respective shareholders, as well as create a more efficient and competitive company that would provide greater value and service to our customers.”

–Microsoft CEO Steve Ballmer, Feb. 1, 2008

Ad Age: If Yahoo comes back and says this isn’t enough money, would you borrow money or partner to make it happen?
Mehdi: Without a question, we are very committed to this combination. … We have a whole set of plans and preparations ready to go to make it work. And we’d like to do that in a cooperative way with Yahoo. No question–our commitment is clear with this one.”

–Yusuf Mehdi, Microsoft’s senior vice president of strategic partnerships, Feb. 11, 2008

If we have not concluded an agreement within the next three weeks, we will be compelled to take our case directly to your shareholders, including the initiation of a proxy contest to elect an alternative slate of directors for the Yahoo board.”

–Microsoft CEO Steve Ballmer, April 5, 2008

I am disappointed that Yahoo has not moved toward accepting our offer. I first called you with our offer on Jan. 31 because I believed that a combination of our two companies would have created real value for our respective shareholders and would have provided consumers, publishers and advertisers with greater innovation and choice in the marketplace. Our decision to offer a 62% premium at that time reflected the strength of these convictions.”

–Microsoft CEO Steve Ballmer, May 3, 2008

Look out Jerry Yang, Carl Icahn now has one fewer distraction as he prepares to propose his slate of dissident board nominees at Yahoo’s Aug. 1 shareholder meeting.

At its own shareholder meeting yesterday, Biogen (BIIB) investors voted to support management’s preferred board candidates and to reject a slate of directors proposed by Icahn, who’s been squabbling with the company’s leadership in call-and-response SEC filings since its failed effort to sell Biogen last year. With 4% of Biogen’s stock, Icahn had been keen on a sale and accused its board of screwing things up when one didn’t occur.

Biogen shareholders obviously didn’t see things that way and seem to have dealt Icahn a knockout blow. “I don’t think there’s any way in which outside observers could fairly criticize Biogen management for the way they handled the sale process,” said Eric Schmidt, an analyst with Cowen in New York. “They can’t be faulted or praised. They have done the best they can with the cards they were dealt.”

Meanwhile, the slate of dissident directors Icahn’s put together for Yahoo (YHOO) continues to attract support. Said one Yahoo shareholder, “He should go ahead. It’s an indicator of the widespread dissatisfaction of shareholders with Yahoo’s management and the board. If nothing else, (it’s) to keep them honest and nobody’s really sure if Microsoft (MSFT) is completely out of the picture.”

Yahoo (YHOO) caught a lucky break yesterday when a Delaware Chancery Court judge denied a request by company shareholders to expedite a trial on whether to invalidate Yahoo’s controversial employee severance plans.

The plaintiffs, who claim the severance plan makes any takeover of the company prohibitively expensive, had requested a trial before Yahoo’s annual shareholders meeting on Aug. 1. They argued that the plan, and Yahoo’s recently announced advertising deal with Google (GOOG), might unfairly bias Yahoo shareholders against efforts to replace the company’s board.

But the judge, who complained of the “media maelstrom” shareholders have created around the issue, didn’t buy it. And rather than expediting the case, he said he planned to set a “prompt” schedule for hearing Yahoo’s motion to dismiss it.

As I said, lucky break.

Photo of Judge Wapner from “The People’s Court.”

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.”

Well, that was fast. Yahoo (YHOO) has issued a reply to Carl Icahn’s latest missive. Terse and caustic, it doesn’t really add much to the “conversation” between the two parties. Yahoo’s message to Icahn: You don’t have a credible plan to operate Yahoo either.

Leaving aside Mr. Icahn’s inaccurate interpretation of our retention plan, we again note that he has no credible plan to operate Yahoo. We believe that Mr. Icahn’s suggestion that we cancel our retention plan would have a destabilizing impact on Yahoo and would clearly not be in the best interests of our shareholders. Furthermore, his suggestion that we put out a price publicly to see if Microsoft (MSFT) will alter its stated position is ill-advised. As we have stated numerous times publicly and privately, we are open to any transaction including a sale to Microsoft if it is in the best interests of shareholders.”

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.

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