UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE
14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. ___)
Filed by the Registrant ☐
Filed by a Party other than the Registrant ☒
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☒ Preliminary Proxy Statement
☐ Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
☐ Definitive Proxy Statement
☐ Definitive Additional Materials
☐ Soliciting Material Pursuant to Section
240.14a-12
(Name of
Registrant as Specified In Its Charter):
Live Nation
Entertainment Inc.
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant):
IATSE
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April 15, 2016
IATSE
10045 Riverside Drive
Toluca Lake CA 91602
PRELIMINARY
PROXY STATEMENT SUBJECT TO COMPLETION
FOR THE
JUNE --, 2016 ANNUAL
SHAREHOLDERS MEETING OF LIVE NATION [NYSE: LYV]
THIS SOLICITATION IS NOT
BEING MADE ON BEHALF OF LIVE NATION MANAGEMENT
Released to Shareholders: April
__, 2016
To Fellow
Live Nation Shareholders:
I.
LIVE NATION SHOULD NOT MAINTAIN A POISON PILL WITHOUT GETTING
SHAREHOLDER APPROVAL
We are writing to solicit your proxy
vote for a shareholder proposal at Live Nation to have the
Company put its poison pill plan before shareholders for a vote. In
December 2015, Live Nation without obtaining any shareholder permission
extended its prior 10-year pill for another 5 years. This pill allows
the Board in effect to block acquisitions of more than 15% of the
Company's stock unless the Board supports the acquisition - even if the
Board is unwilling to support an acquisition out of personal sympathy
for managers at risk of replacement by a new owner rather than out of
concern solely for existing shareholders. The current pill is not
limited to situations where a takeover effort is coercive or priced
below a certain point.
The poison pill presents a potent
anti-takeover device that might
adversely affect shareholder value by discouraging offers to acquire
the Company that could be beneficial to shareholders. Our resolution
preserves the right of a Board to put in place a short-term poison pill
if the Board believes it must do so in exercising its fiduciary
responsibilities. However, our resolution if enacted into the bylaws
would require the Board to submit any such pill for shareholder approval
within a 90-day period absent fiduciary duties mandating otherwise.
"Poison pills are like a dictator who says, 'Give up more of your freedom and I'll take care of you.'"
T.J. Dermot Dunphy, CEO of Sealed Air (NYSE) for 25 years, Wall Street Journal (4/28/99). "Poison pills... prevent shareholders,
and the overall market, from
exercising their right to discipline management by turning it out. They
entrench the current management, even when it's doing a poor job. They
water down shareholders' votes and deprive them of a meaningful voice
in corporate affairs." - "Take on the Street" by Arthur Levitt, SEC
Chairman, 1993-2001.
The Company
describes its pill as follows in its 10-K filed February 2016:
Under the plan, if any
person or group acquires, or begins a tender or
exchange offer that could result in such person acquiring, 15% or more
of our common stock, and in the case of certain Schedule 13G filers,
20% or more of our common stock, and in the case of Liberty Media and
certain of its affiliates, more than 35% of our common stock, without
approval of the board of directors under specified circumstances, our
other stockholders have the right to purchase shares of our common
stock, or shares of the acquiring company, at a substantial discount to
the public market price. Therefore, the plan makes an acquisition much
more costly to a potential acquirer.
A copy of the pill is available from the SEC's website as Exhibit 4.1 to the
Company's 8-K filed 12/24/15, incorporated herein by this reference (a
copy is available by contacting us below).
The Company's stock performance is not
such that shareholders should
ignore this corporate governance problem:
S&P 500 vs. LYV
Closing Price (Sept. 14, 2015 - Mar. 11, 2016)
The Company's pill has some extreme
aspects, whereby if an investor not
supported by the Board seeks more than 15% of the stock, this gives
every other shareholder (1) the right to purchase preferred stock at a
major discount ($80 per share for preferred stock having 100 votes per
share),
1
plus (2) flip-in and flip-over
provisions allowing every
shareholder except the large acquiror to purchase common stock at
approximately half its market price.
2 While the
new pill also contains
provisions allowing 10% of shareholders to petition for a vote on a
proposed acquisition if such acquisition meets several requirements, in
our opinion the expense of such a petitioning process and the
burdensomeness of those requirements causes them to hardly soften this
pill's deterrent effects on potential acquisitions.
3
The vast majority of public
companies do
not have pills; the majority
of S&P 500 companies had them at one point but most have
abandoned them. The majority of shareholder resolutions against pills
in recent years have received majority support. Indeed, at Comcast in
2012, despite opposition from the Chairman who held 33% of the votes, a
majority of shareholders voted in favor of a similar anti-pill
proposal.
1. Compare that effective price of eighty
cents per common share to the Company’s closing stock prices in
February 2016 averaging over $20 per share.
2. The Company’s 2005 Information Statement
describes these pill features as follows: “Consequences of a Person or
Group Becoming an Acquiring Person.
• Flip In. If a person or group becomes an acquiring person, all
holders of our rights except the
acquiring person may, for the then applicable exercise price, purchase
shares of our common stock with a market value of twice the then
applicable exercise price, based on the market price of our common
stock prior to such acquisition.
• Flip Over. If we are later acquired
in a merger or similar transaction after the date our rights become
exercisable, all holders of our rights except the acquiring person may,
for the then applicable exercise price, purchase shares of the
acquiring corporation with a market value of twice the then applicable
exercise price, based on the market price of the acquiring
corporation’s stock prior to such merger.”
3. For example, to be a qualifying offer the
offeror must own not more than 1% of the Company already and must offer
a price higher than any other price paid for the stock on any day in
the last 24 months, even if the Company’s stock temporarily went up
this one day but was averaging much lower during this period. See page
7, subsections (dd)(ii) and (iii).
Some apologists for pills argue that
managers perform better
if provided the job security offered by pills, but this argument holds
little weight at Live Nation, as its senior executives already have
written long-term employment agreements providing them with ample job
security. You can read about these agreements in the Company's proxy
statements available at www.sec.gov.
II.
FULL TEXT OF OUR PROPOSAL:
RESOLVED, that
shareholders of Live Nation hereby amend the Company's
bylaws to add the following provision:
Shareholder Approval Required
for Poison Pills (Shareholder Rights Plans):
The Company shall not maintain a poison pill absent prior shareholder
approval of such plan, unless the fiduciary duties of the Company's
directors requires they maintain such plan without such approval. The
foregoing shall require the submission of any such plan to a
shareholder vote within 90 days of its adoption, absent fiduciary duty
compelling further delay. Any shareholder rights under a plan in effect
at the time this section goes into effect shall be redeemed by the
Company.
BE IT FURTHER RESOLVED
that each word, phrase and part of the foregoing
resolution is severable.
BE IT FURTHER RESOLVED
that if shareholders are not permitted by law to
mandate adoption of the foregoing bylaw provisions, this proposal shall
be deemed merely a recommendation to the board to adopt a similar
policy with respect to poison pills.
III.
INFORMATION ON PARTICIPANTS IN THIS SOLICITATION:
The sole participants in this
solicitation at this time are the
International Alliance of Theatrical Stage Employees (IATSE) and Neil
Gluckman. IATSE's offices are located at the above address and 207
W.25th St. 4th Floor, New York, NY 10001. IATSE is the owner of 300 shares of Live Nation common stock. Mr. Gluckman is business
representative of IATSE Local 927, 449 1/2 Moreland Ave. #215, Atlanta
GA 30307. Mr. Gluckman also owns 300 shares of the Company's
common stock which he has held for several years. He alone filed the proposal with the Company Secretary. IATSE is a labor
organization with over 126,000 members whose representatives serve
as pension fund trustees investing over $8 billion in assets. IATSE
represents thousands of the Company's employees and its national
collective bargaining agreement with the Company has expired. Local 927
does not represent any of the Company's employees (the Company in
Georgia has instead utilized staffing agencies which claim the workers
staffing the Company's shows are independent contractors vis-a-vis the staffing agency and on that
basis defeated their petition for representation by Local 927). We do
not seek your support in labor matters and do not believe that
enactment of the proposals would have any impact on such matters. We
will vote each proxy card received in accordance with the
shareholder's instructions. We do not seek any discretionary voting
authority for the shareholders meeting; rather, we will vote stock
solely as directed. If you return the enclosed card but give us no
instructions, we will vote your stock FOR our proposal, FOR
ratification of the auditor and not vote on any other matter. The
persons named as proxyholders in our proxy card are attorneys employed
full-time by IATSE familiar with their duties to shareholders who granted proxies.
IATSE will bear all solicitation costs
(anticipated at $9700) and will
not seek reimbursement from the Company. It will solicit proxies by
mail, phone, e-mail, fax and in-person using its regular staff, who
shall not receive any additional compensation, but it may also hire an
outside solicitor. It will reimburse banks, brokers, and other
custodians, nominees or fiduciaries for reasonable expenses incurred in
forwarding proxy material to beneficial owners.
We incorporate by reference all
information concerning the Board of
Directors and voting procedures contained in management's proxy
statement at [PAGES].
IV.
LEGAL MATTERS:
According to the Company's bylaws, any
amendment of such bylaws
requires "the affirmative vote of the holders of a majority of the
total voting power of the Voting Stock, voting together as a single
class". However, as a precatory proposal, it would be sufficient for
this proposal to receive a majority of shares actually voted instead of
a majority of the outstanding stock. However, we intend to solicit a majority of
the voting power of the stock held in the Company.
There is a debate between Delaware
corporation law experts about
whether shareholders have the legal right to bind boards through the
bylaws in the manner requested by this proposal. We believe based on
advice of counsel that there is a fair argument that shareholders may do so here:
see
Teamsters v.
Fleming Cos., 975 P.2d 907 (Ok. 1999)(holding
shareholders entitled to enact binding pill bylaw proposal under
similar Oklahoma corporation law). We believe this legal debate is
immaterial, as our proposal says it will be precatory if legally it
cannot be binding.
V.
PROXY VOTING:
PLEASE USE THE ENCLOSED PROXY CARD TO
VOTE FOR THE PROPOSAL. YOU WILL
ALSO RECEIVE A PROXY CARD FROM MANAGEMENT. IF YOU SUPPORT OUR PROPOSAL,
DO NOT SEND BACK MANAGEMENT'S CARD. ANY PROXY CARD YOU HAVE SIGNED IS
CANCELLED OUT BY SUBMITTING A LATER-DATED PROXY CARD.
In corporate elections, simply
submitting a new proxy card with a later
date on it revokes your prior card. A proxy vote may be revoked any
time prior to the tally at the shareholders meeting by signing and
submitting a new proxy card, by sending written notice of revocation to
the proxy holder, or by appearing at the meeting and voting in-person.
The Board of Directors has been
nominated by the Company, not IATSE,
and we are not making a recommendation on the Directors election. We
seek no discretionary voting authority for the meeting: we will vote
your stock as you instruct us. If you return our proxy card but give us
no instructions, we will vote your stock FOR our proposal, FOR
ratification of the auditor and not vote on any other matter. The
Company's bylaws require advance notice before any matter may be raised
at the meeting, and therefore we do not expect any matter to be raised
at the meeting that is not addressed in this Notice or the Company's
proxy statement. The record date for eligibility to vote is [DATE].
VI.
EXECUTIVE COMPENSATION/ SHARE OWNERSHIP OF MANAGEMENT AND 5%
OWNERS/ SHAREHOLDER PROPOSAL RIGHTS:
We incorporate by reference the
information contained in management's
proxy statement at [PAGES].
PLEASE RETURN THE
ENCLOSED PROXY CARD TODAY, AS INSTRUCTED ON THE CARD.
For more information, contact IATSE at (818) 980-3499 or
shareholderrights@iatse.net.
[PRELIMINARY] PROXY CARD
Solicited by IATSE for Annual Shareholders Meeting of Live Nation,
[DATE].
The undersigned hereby designates Andrew
Kahn and James Varga, with
full power of substitution, as the proxies of the undersigned for the
sole purpose of voting all stock of the undersigned in the manner
marked below at the Live Nation annual shareholders meeting for 2016.
This proxy card grants no discretionary voting authority: if matters
come before the meeting other than the items below, the stock of the
undersigned will not be voted on such matters.
1. ELECTION OF DIRECTORS
☐ FOR
☐ AGAINST
☐ ABSTAIN
☐ WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL NOMINEE. WRITE
NAME(S) OF NOMINEES BELOW:
IATSE MAKES NO RECOMMENDATION ON THE ELECTION
2. TO APPROVE THE RATIFICATION OF THE APPOINTMENT OF ___________ AS
INDEPENDENT AUDITORS FOR THE 2016 FISCAL YEAR
☐ FOR
☐ AGAINST
☐ ABSTAIN
IATSE MAKES NO RECOMMENDATION ON THE RATIFICATION OF THE AUDITOR
3. PROPOSAL TO REQUIRE SHAREHOLDER APPROVAL FOR ADOPTION OF ANY POISON
PILL
☐ FOR
☐ AGAINST
☐ ABSTAIN
IATSE RECOMMENDS A VOTE FOR THIS PROPOSAL.
If no direction is made above, IATSE will vote this card FOR our
proposal, FOR approval of the auditor and not vote on any other matter.
Dated: _____________
SIGNATURE: ________________________________________
PRINT: _____________________________________________
NAME: _____________________________________________
TITLE (if shares not held in above name): ________________
Optional information so we can make sure your vote gets counted and
provide you more information about shareholder issues at Live Nation
(your information will not be put to any other use):
Telephone: _________________
Fax: _______________________
E-mail address: _______________
This card can be voted at _____________.com, returned in the enclosed
envelope or by fax to _______________.