Icahn shows proxy moxie

Mogul plans board battle over Lionsgate

Billionaire investor Carl Icahn amped up hostilities with the Lionsgate board Tuesday, disclosing plans for a proxy fight to replace the existing 12-member board with his own slate of directors.

Contending that existing leadership has failed to hold management accountable for “excessive” spending, Icahn told Daily Variety, “We have lost confidence in the management and the board and therefore plan to have a proxy fight.”

Icahn zeroed in on the board’s recent move to set up a $16-million fund for potential severance to five top execs, calling it “reprehensible.” The billionaire, who owns 18.8% of Lionsgate, has been calling for the ouster of top management and launched a hostile takeover bid in March.

Lionsgate, which has been battling Icahn for more than a year, declined comment on the prospect of a proxy fight. The minimajor hasn’t yet set its annual meeting, at which shareholders will vote on board members. It usually holds the event in Toronto in September.

Icahn also said he would keep the Vancouver-based company headquartered in Canada if the proxy fight is successful.

The latest escalation between Icahn and Lionsgate came on the same day as several other key developments: Icahn extended his hostile bid for the fourth time; he dropped the requirement for at least 50.1% of shares to be tendered for the deal to go through, and Lionsgate released improved earnings for its fourth quarter ended March 31.

Additionally, Lionsgate’s about to release its most expensive film, action comedy “Killers” with Ashton Kutcher and Katherine Heigl. Budget’s in the $70 million range with foreign pre-sales bringing the studio’s investment down to about $40 million.

While Icahn’s revised takeover bid could result in his owning far less than 50% of the company, any increase in his holdings could boost his power with the board. For example, if his 18.8% interest grows to more than 20%, that alone could trigger a possible default of Lionsgate’s credit line.

Icahn’s revamped bid expires June 16, though there’s no change in the $7 a share price. Lionsgate said in response that its board will review the revised offer and noted that shareholders have “rejected” the bid with the number of shares tendered remaining at 4%.

“Lionsgate’s shareholders have demonstrated that they believe the Icahn Group’s offer is financially inadequate,” the company said. “Lionsgate appreciates the continued support of its shareholders and notes that, while there is no need for shareholders to take action at this time, those shareholders who have tendered into the offer can still withdraw their shares.”

Icahn, who was able to persuade Canadian regulators last month to throw out a poison pill anti-takeover measure, warned Lionsgate against making any similar effort in the future.

“We continue to be concerned that the board may engage in an inappropriate dilutive defensive acquisition or other transaction in an attempt to thwart our offer,” he said. “We will not sit idly by if the board attempts to employ inappropriate defensive tactics. We will challenge any proposed transaction that we perceive to be abusive of shareholder rights or otherwise disadvantageous to Lionsgate, and will seek to hold the directors personally liable for any breach of their fiduciary duty or actions which oppress Lionsgate shareholders or serve simply to entrench themselves.”

Icahn and Lionsgate held settlement talks several weeks ago but those apparently did not go anywhere.

The battle between the sides was triggered by Lionsgate’s rejection of Icahn’s bid for seats on the board, plus his frustration over the company’s stock price. Lionsgate has portrayed the billionaire investor as an incompetent meddler.

Lionsgate stock was up 3 cents to $6.83 Tuesday.

After the market closed, Lionsgate announced that its loss for the fourth quarter ended March 31 had narrowed to $22.3 million, or 19 cents a share, from a loss of $32.4 million, or 28 cents a share, in the year-ago quarter. Fourth-quarter revenue fell to $430.6 million from $463.2 million.

The report came a month after Lionsgate had issued a bullish earnings outlook for the year that was 50% better than it forecast in February due to gains in its TV operations, record library revenues and higher home entertainment revenues. It had also asserted that adjusted cash flow for its fiscal year would top $115 million and reported Tuesday that the figure was $128.5 million, compared to negative $122.9 million for the prior year, which amounted to “a positive swing of more than $250 million.”

Icahn had responded in April by dumping cold water on the forecast, asserting the figures were meaningless due to a lack of specifics on amortization and spending on films.

The loss for fiscal 2010 amounted to $19.5 million, compared with a loss of $178.5 million in the prior year.

Revenue increased 8% to $1.58 billion due primarily to increases in television production revenue and new revenue of $113.6 million from TV Guide Network and TVGuide.com, offsetting declines in feature films as the company released fewer movies.

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