CSX CORP : Issues Letter to Shareholders Highlighting TCI Group's False Testimony in U.S. District Court and Violations of Federal Securities Law
06/12/2008| 01:57pm US/Eastern
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JACKSONVILLE, Fla., June 12 /PRNewswire-FirstCall/ -- CSX Corporation
(NYSE: CSX) today announced that it has issued a letter to CSX shareholders in
connection with the ruling of the U.S. District Court for the Southern
District of New York. As previously announced, the Court found that The
Children's Investment Fund (TCI) and 3G Capital Partners (3G) (together, the
TCI Group) violated federal securities laws in their actions with respect to
CSX and provided false testimony under oath.
The full text of the letter to shareholders is below:
June 12, 2008
Dear CSX Shareholder:
On June 11, a U.S. federal district court in New York issued an opinion
finding that the TCI Group has engaged in a pattern of deception and
misstatements to hide the truth regarding its activity in CSX stock.
Among many other findings in a 115-page opinion, the Court concluded that
the TCI Group members "testified falsely in many respects" during the trial.
In more than a dozen places throughout the opinion, the Court finds that
specific testimony of individual TCI Group members -- including Chris Hohn,
Alex Behring, Gil Lamphere and Snehal Amin -- was not credible. A copy of the
full opinion is available at http://2008annualmeeting.csx.com.
CSX negotiated in good faith with the TCI Group to try to resolve this
proxy contest, but we broke off those negotiations when it became apparent
that Mr. Hohn and the TCI Group were seeking effective control of CSX. The
TCI Group has said repeatedly that it has no plans to control CSX. It said
this in sworn Congressional testimony, in signed SEC filings and, most
recently, in a public investor forum three days ago. Here is what the Court
concluded after reviewing the evidence:
"Defendants have sought to control CSX for over a year. As obstacles
to control surfaced, they adapted their strategy for achieving control,
making disclosures only when convenient to their strategy. Defendants'
latest strategy for control will be tested at the annual shareholder
meeting. And if this strategy is not successful, the Court perceives a
substantial likelihood that the defendants would craft a new strategy
for control without regard to their disclosure obligations."
Considering all the evidence presented, the Court found a "frequent lack
of credibility of Hohn, Amin, and Behring." In a footnote to the opinion, the
Court also adopted numerous findings of fact regarding the TCI Group's lack of
credibility that do not appear in the opinion itself. Because we believe it
is important for investors to have complete information regarding the
deception in which the TCI Group has engaged, we have excerpted the findings
of fact adopted by the Court here for your reference.
With respect to TCI founder and TCI Group nominee Christopher Hohn, the
Court found:
1. Mr. Hohn's testimony that, in a paragraph in his email to Mr. Amin of
February 13, 2007, the first sentence refers to CSX, but the second
sentence ("I want to also discuss our friend Alex in Brazil") refers
to Arcelor is not credible. Moreover, the Court found that "Hohn's
current explanation is undermined by his deposition testimony, in
which he claimed that he did not know that 'friend Alex of Brazil'
referred to Alex Behring."
2. Mr. Hohn's testimony that he never discussed with Mr. Behring whether
TCI was going to purchase more shares of CSX is not credible.
3. Mr. Hohn's testimony that "[w]e are very careful not to ever tip
another investor as to whether we are going to increase our stake in
a company or not, because that would disadvantage our investors", is
not credible.
4. Mr. Hohn's testimony that TCI and 3G never discussed their respective
purchases of CSX stock is not credible.
5. Mr. Hohn's testimony that he was not encouraging Lone Pine Capital,
another hedge fund, to purchase CSX stock is not credible. The Court
also found "that Hohn did not limit his conversations with other
hedge funds to industry-level topics. He suggested, in one way or
another, that they buy CSX shares and alerted them to the fact that
CSX had become a TCI target."
6. Mr. Hohn's testimony that, while he told another hedge fund that was
not an investor in TCI (Deccan) to buy CSX stock, he never
recommended CSX to 3G, which is an investor in TCI, is not credible.
7. Mr. Hohn's testimony that TCI did not solicit Austin Friars' support
for TCI's activism campaign is not credible.
With respect to TCI Group nominee and 3G principal Alex Behring, the Court
found:
1. Mr. Behring's testimony that he did not have conversations with Chris
Hohn of TCI in February 2007, at the time that 3G began making
purchases of CSX stock, is not credible.
2. Mr. Behring's testimony that 3G's purchases of CSX stock from March
29 to April 17, 2007, had nothing to do with a meeting that he had
with Snehal Amin of TCI on March 29, 2007, and that it was just a
coincidence, is not credible.
3. Mr. Behring's testimony that 3G's sales of CSX shares in August and
September of 2007 were unrelated to TCI's doubts as to whether it
would continue to hold its CSX shares and run a proxy fight is not
credible.
4. Mr. Behring's testimony that he did not know before Thanksgiving 2007
that TCI was contacting potential nominees for the CSX board of
directors is not credible.
5. Mr. Behring's testimony that around October 11, he and Mr. Hohn did
not tell each other that they had met with candidates for the CSX
Board is not credible.
6. Mr. Behring's testimony that, when he met with Mr. Amin on October
17, 2007, he did not tell Mr. Amin that he had met with Mr. Lamphere
five days earlier is not credible.
7. Mr. Behring's testimony that Mr. Schwartz's email referring to the
deadline for shareholder proposals at the CSX annual meeting was just
"part of your normal due diligence on any investment we make" is not
credible. The Court found that the email "demonstrates [3G's]
interest in a proxy fight right from the outset."
8. Mr. Behring's initial testimony that 3G was "not giving serious
consideration to an activist scenario at that point [April 3, 2007]
yet" was not credible, and he was forced to retract it.
With respect to TCI founding partner Snehal Amin, the Court found:
1. Mr. Amin's testimony that, at his March 29, 2007, meeting with Mr.
Behring, they did not discuss that TCI was about to buy shares of CSX
when TCI's Hart-Scott-Rodino waiting period expired, and that TCI and
3G never discussed buying or selling CSX shares, is not credible.
2. Mr. Amin's testimony that he did not discuss the buying of CSX shares
at his meeting with Mr. Behring on September 26, 2007, is not
credible.
3. Mr. Amin's testimony that he never discussed, in any of his meetings
with Mr. Behring, the subject of buying or selling CSX stock or
putting on swap positions is not credible.
4. Mr. Amin's testimony that TCI was not looking to have a new CEO at
CSX in April 2007, when Mr. Amin and Mr. Hohn talked about
approaching Hunter Harrison, is not credible. The Court noted that
the incident "confirm[s] the Court's view that TCI was determined to
force changes in CSX's policies and, if need be, to bring about a
change in control."
5. Mr. Amin's testimony that he did not assume that each counterparty
would hedge with physical shares is not credible.
6. Mr. Amin's testimony that he stated that it was unfortunate that Mr.
Hohn sent his proposal to Mr. Kelly of CSX by email because "things
like this are better discussed in person" is not credible. The Court
also referred to this testimony as "border[ing] on the absurd" and
"patently incredible."
7. Mr. Amin's testimony concerning a voting scenario prepared by TCI was
misleading insofar as he did not acknowledge that the scenario
depicted in that exhibit was one of a number of different scenarios.
8. Mr. Amin's testimony that TCI did not put swaps in Deutsche Bank so
that TCI could try to influence them to vote because of the influence
of Austin Friars, a Deutsche Bank proprietary hedge fund, is not
credible. The Court also found that "Hohn believed that TCI could
exploit this relationship to influence how Austin Friars, and in turn
how Deutsche Bank, voted its CSX shares."
In light of all these findings, the Court ultimately concluded that the
TCI Group engaged in a "plan or scheme to evade the reporting requirements" of
federal securities laws and that there is a "substantial likelihood of future
violations."
Unfortunately, the Court concluded that the law does not permit it to
grant relief that would prevent the TCI Group from gaining the benefit of its
illegal activity in the proxy contest. We urge you to consider carefully
these violations and the pattern of deceptive conduct from the TCI Group --
including false testimony under oath -- as you evaluate whether the TCI Group
nominees are fit to serve on the board of a U.S. public company.
Sincerely,
CSX Corporation
Forward-looking statements
This information and other statements by the company contain forward-
looking statements within the meaning of the Private Securities Litigation
Reform Act with respect to, among other items: projections and estimates of
earnings, revenues, cost-savings, expenses, or other financial items;
statements of management's plans, strategies and objectives for future
operation, and management's expectations as to future performance and
operations and the time by which objectives will be achieved; statements
concerning proposed new products and services; and statements regarding future
economic, industry or market conditions or performance. Forward-looking
statements are typically identified by words or phrases such as "believe,"
"expect," "anticipate," "project," "estimate" and similar expressions.
Forward-looking statements speak only as of the date they are made, and the
company undertakes no obligation to update or revise any forward-looking
statement. If the company does update any forward-looking statement, no
inference should be drawn that the company will make additional updates with
respect to that statement or any other forward-looking statements.
Forward-looking statements are subject to a number of risks and
uncertainties, and actual performance or results could differ materially from
that anticipated by these forward-looking statements. Factors that may cause
actual results to differ materially from those contemplated by these forward-
looking statements include, among others: (i) the company's success in
implementing its financial and operational initiatives, (ii) changes in
domestic or international economic or business conditions, including those
affecting the rail industry (such as the impact of industry competition,
conditions, performance and consolidation); (iii) legislative or regulatory
changes; (iv) the inherent business risks associated with safety and security;
and (v) the outcome of claims and litigation involving or affecting the
company.
Other important assumptions and factors that could cause actual results to
differ materially from those in the forward-looking statements are specified
in the company's SEC reports, accessible on the SEC's website at www.sec.gov
and the company's website at www.csx.com.
Important Information
In connection with the 2008 annual meeting of shareholders, CSX
Corporation ("CSX") has filed with the SEC and is mailing to shareholders a
definitive Proxy Statement dated April 25, 2008. Security holders are
strongly advised to read the definitive Proxy Statement because it contains
important information. Security holders may obtain a free copy of the
definitive Proxy Statement and any other documents filed by CSX with the SEC
at the SEC's website at www.sec.gov. The definitive Proxy Statement and these
other documents may also be obtained for free from CSX by directing a request
to CSX Corporation, Attn: Investor Relations, David Baggs, 500 Water Street
C110, Jacksonville, FL 32202.
CSX, its directors, director nominee and certain named executive officers
and employees may be deemed to be participants in the solicitation of CSX's
security holders in connection with its 2008 Annual Meeting. Security holders
may obtain information regarding the names, affiliations and interests of such
individuals in CSX's definitive Proxy Statement and its May 15, 2008 letter to
shareholders filed with the SEC as definitive additional soliciting materials.
Contacts:
David Baggs, Investor Relations
904-359-4812
Garrick Francis, Corporate Communications
904-359-1708
Dan Katcher / Andrew Siegel
Joele Frank, Wilkinson Brimmer Katcher
212-355-4449
SOURCE CSX Corporation
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