Fast-moving Jaguar Financial is breathing down the neck of Research In Motion
Under Canadian securities laws, investors holding a 5% stake in a company -- either individually or as a group -- are allowed to call a special meeting, says Chris Makuch, vice president at proxy solicitation firm Georgeson.
And once a formal letter is sent to a company requesting a special meeting, the clock starts ticking and the process takes roughly 80 days to complete, notes Makuch, who works in Georgeson's Canadian office.
For RIM, the stakes are huge. In Canada, there is no such thing as a staggered board like in the United States. That means all directors who sit on the board of a publicly traded Canadian company are subject to re-election every year, Makuch says. As a result, a successful shareholder activist could potentially capture a majority of the board seats with their opposing slate of directors.
Jaguar earlier this week noted it has 8% of RIM's investors who support its call for new corporate governance and a transaction that could entail a sale of the company. More specially, Jaguar says it wants a "tech-oriented" board of directors, an independent chairman compared with the current two-in-a-box co-chairmen who also serve as the company's co-CEOs, and it wants to replace the current CEOs with a "transformational" CEO.
"The action Jaguar has taken in announcing it has 8% support of RIM investors is a shot across the bow to show they have a position," Makuch says.
While Jaguar has the prerequisite 5% needed to call a special meeting, that's a long way off from securing a majority vote from RIM investors. And to get from point A to point B, the shareholder activist needs to demonstrate two key things, Makuch says.
One action is naming a reputable slate of directors. Jaguar may not have to look too far, especially if it wants to pull from an opposition slate previously presented by billionaire investor and activist Carl Icahn, who named a dissident slate to run against Yahoo!'s
It's not always easy to find directors who want to serve on an opposition slate, but as Icahn has shown, it's possible. Tech heads Mark Cuban, who founded Broadcast.com, which was later sold to Yahoo!, and John Chapple, former CEO of Nextel Partners, which is now part of Sprint Nextel
The second key action Jaguar needs to take is delivering a strategy that galvanizes shareholders and is one that they could support, Makuch says.
Should Jaguar be successful in winning a majority of the board seats, expect to see the current CEOs ousted and replaced. But that's asking RIM shareholders to take a large leap of faith that a group of directors new to the company would be fully versed in its operations within a short time frame to make a smart choice on a new CEO.
And by the same token, it may take time for a new group of directors to figure out if a sale of RIM makes sense, versus a sale of its patent portfolio or spinoff of some of its operations.
In the meantime, competitors like Apple with its iPhone and Motorola Mobility with its Android-based phones by Google are taking market share.
Jaguar, however, has had success in moving shareholders into action. In 2008, Jaguar opposed HudBay Minerals' multimillion-dollar buyout of Lundin Mining. In raising opposition, the companies eventually terminated the buyout, citing shareholder resistance.
Baked into that controversy: Another HudBay investor, SRM Global Master Fund Limited Partnership, had sought to unseat HudBay's board of directors and was successful as the preliminary proxy count came in. In announcing the new board of directors, the SRM slate named a new CEO as the interim CEO voluntarily stepped down.
Says Makuch: "[RIM] is not the first rodeo for Jaguar."
Indeed. So, RIM investors, hold on tight for what will undoubtedly be a wild ride in the coming weeks and months. Don't be surprised to see RIM's board suddenly separate the chairman-CEO role and assign an independent director to the chairman's role. And look for signs that an executive search firm has been hired to quietly test the waters for potential CEO replacements at the mobile device maker.
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