Proxy fight looms at bwin.party

US investment executive Jason Ader achieved some notoriety last year in his clashes over directorate appointments at International Game Technology (see previous  reports) and it looks as if he is about to become embroiled in another boardroom brawl…this time with Bwin.Party Digital Entertainment.

Our readers will recall that Ader bought a 6.1 percent (since reduced to 5.25) interest in the company through his SpringOwl investment company and immediately started criticising Bwin management, putting forward a resolution that the board appoint four of his nominees to the directorate.

On Friday Bwin reacted to the resolution, recommending to shareholders that at the agm on May 22 they reject the SpringOwl proposal.

The circular gives reasons for Bwin’s negative reaction and reads:

“On the limited information presented to date by SpringOwl on each of the proposed director nominees, and having consulted with many of its leading shareholders and depositary interest holders, the [Bwin.Party] Board is recommending that shareholders and depositary interest holders VOTE AGAINST the SpringOwl Resolutions for the following reasons:

1.   With any potential Board appointment, the Board’s Nominations Committee needs sufficient information and time to review and interview any candidate in order to determine their suitability and qualifications to serve as a director.  The Company has been provided with very little information on each of the four nominees proposed by SpringOwl.

Information on the background of each nominee is also vital because, if appointed to the Board, a nominee may have to be licensed as a qualifying individual under state online gaming regulations in the United States.

The Nominations Committee must also be given the opportunity to consider how any appointments might impact upon the Board’s composition and also the process of effectively overseeing the implementation of the company’s business strategy.

In proposing these nominations last week, SpringOwl is seeking to by-pass this normal appointment process, putting at risk the ability of the Board to operate as a unified and effective forum in the best interests of all shareholders and depositary interest holders.

2.   The Board does not believe that it is in the best interests of the company and its shareholders and depositary interest holders for a minority shareholder, holding only 5.25 percent of the company’s voting share capital, to nominate up to five directors onto the Board.

3.   Should the four nominees being proposed by the SpringOwl Resolutions be appointed to the Board, the size of the Board at the conclusion of the 2014 AGM would increase from nine to 13 members.  If SpringOwl were to then nominate a further individual for appointment to the Board as they are entitled under the Relationship Agreement, then the Board would have 14 members.  Following the completion of the merger between PartyGaming Plc and bwin Interactive Entertainment AG in March 2011, the Board comprised 13 directors, a number that the Board and leading shareholders viewed as too large.

As a result, the Board embarked on a process that has successfully reduced its membership to nine directors. SpringOwl’s proposal to increase the size of the Board to 13 or 14 members would therefore result in a more unwieldy decision-making forum as well as add extra cost to the company.

4.   SpringOwl already has a nomination right under the relationship agreement with the company, which it acquired from Emerald Bay Limited (‘Emerald’) and Stinson Ridge Limited (‘Stinson’) [companies owned by the former founders of Party Gaming] on 20 February 2014.

This nomination right was created under the terms of the relationship agreement entered into by the Company with Emerald, Stinson and others at the time of the merger and grants the relevant shareholder the right to nominate an individual for appointment to the Board as a non-independent, non-executive director.

The Board believes that if SpringOwl wants its views represented on the Board, then appointing a director under this nomination right is the appropriate way for it to do so.  Despite repeated encouragement from the Board for it to do so, SpringOwl has so far chosen not to exercise this nomination right.

The Board’s initial observations on SpringOwl and the proposed nominees

Whilst the Board’s Nominations Committee has not had sufficient information and time to review and interview the four proposed nominees in order to determine their suitability and qualifications to serve as directors on the Board, the Board would make the following initial observations based on the information received from SpringOwl to date:

a)    All four of the nominees proposed by SpringOwl are male.  In line with UK and European corporate governance best practice, the company has stated publicly since 2012 that it is the Board’s intention to have appointed at least two women to the Board by the end of 2015, and one has already been appointed in this respect. The proposed nominees therefore do not aid the Board with fulfilling this objective.

b)    The requisition documentation served on the Company by SpringOwl does not include any justification as to why it is in the best interests of the company and its shareholders and depositary interest holders to appoint the four proposed nominees as directors or why these four nominees are suitably qualified to serve on the Board of bwin.party.  Further, the documentation does not state in what capacity these four individuals are being nominated.

c)    Prior to receiving the SpringOwl Resolutions, in March 2014 SpringOwl approached the Board privately proposing four individuals to the Board, three of whom were different candidates from the current four nominees. At the time the Board was recruiting individuals for the position of either Chairman or Senior Independent Director.

The Board evaluated the four proposed individuals through a process which included independent benchmarking by Spencer Stuart, a global executive search and leadership consulting firm.  However none of the four individuals put forward was deemed by the independent directors, who were advised by Spencer Stuart, to be suitably qualified for the roles of Chairman or Senior Independent Director.

d)    The Board initiated and has maintained a regular dialogue with SpringOwl since its investment in the Company on 20 February 2014.  The Board has also encouraged SpringOwl to set out its views on the direction of the company.  In particular, it has asked how SpringOwl might improve the company’s performance and operations and the Board has been open to any constructive discussions with SpringOwl as to how it can generate additional value for shareholders and depositary interest holders.

SpringOwl’s plan to add four, possibly five additional directors to the Board has not been supported by any constructive views on the company’s future, business strategy or how it intends to improve the Group’s prospects.”

The circular goes on to discuss the appointment as chairman of Phillip Yea – an appointment that Ader has criticised – and informs shareholders that it has requested further information on the four nominees proposed by SpringOwl, which it will then lay before the Nominations Committee and an independent adviser.

The concluding recommendation to shareholders is that the appointment of any of the four Ader nominees to the Board at the agm is not in the best interests of the company and its shareholders and depositary interest holders as a whole and should be voted against.

Ader, a combative individual as illustrated by his conduct in the IGT issue, will no doubt react quickly to the latest move to derail his nominations by the Bwin.Party management.

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