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July 2008

Rail News: CSX Transportation

CSX/TCI proxy fight goes an extra round

By Jeff Stagl, Managing Editor

Wall Street analysts, hedge fund managers, investors and others, along with officials at CSX Corp., the Children’s Investment Fund Management L.L.P. (TCI) and 3G Capital Partners Ltd., waited with bated breath on June 25 for results of a hotly contested board election. They’ll have to wait a while longer.

Voting results from the annual shareholders meeting in New Orleans were “too close to call” between CSX and TCI/3G nominees, and an independent inspector of elections needed more time to tabulate the ballots, CSX officials said in a prepared statement.

As a result, CSX officials announced they would reconvene the annual meeting July 25 at the Class I’s Jacksonville, Fla., headquarters to receive certification of the voting results and announce the winners.

“We have met with a large number of our shareholders over the past few months and we appreciate their candor and insights regarding our company,” said CSX Chairman, President and Chief Executive Officer Michael Ward in the meeting announcement.

If certified voting results are available earlier than July 25, CSX will make them available, says CSX spokesman Gary Sease.

Although TCI and 3G officials referred to CSX’s actions as a stall tactic and several Wall Street observers said it was unusual for a company not to announce the results of director elections either the day of an annual shareholders meeting or shortly afterward, the Class I is following all proper procedures, says Sease.

“This is the first contested election we have experienced, and we want to make sure all ballots are properly certified,” he says. “We don’t consider the time to be unusual given the contested circumstances.”

Despite no official announcement of results, TCI and 3G officials claimed four of their five nominees had been elected to CSX’s 12-member board based on “preliminary voting results,” they said in a statement issued June 25. In December, TCI and 3G formed a group, which owns 8.7 percent of CSX’s outstanding common shares and nominated five candidates to CSX’s board.

TCI/3G: A ‘win’ for all investors

TCI and 3G officials identified Chris Hohn, Alex Behring, Gil Lamphere and Tim O’Toole as the elected directors. Hohn is TCI’s founder; Behring is 3G’s managing director; Lamphere is managing director of Lamphere Capital Management; and O’Toole is managing director of the London Underground. The group also nominated Northwest Airlines Co-Chairman Gary Wilson.

“This is a victory for all CSX shareholders. We are gratified by the strong support

we have received from CSX shareholders and RiskMetrics Group - ISS Governance Services, both of which clearly recognize the value of adding our highly qualified nominees to the board,” TCI and 3G officials said. “We look forward to working constructively with the board, management and employees of CSX to realize the company’s full potential in the years ahead.”

CSX officials aren’t sure how TCI and 3G executives monitored the voting June 25 and determined four of their nominees had won board slots, says Sease.

Leading up to the annual shareholders meeting, CSX and TCI/3G engaged in several court battles over issues related to the director elections. On June 11, the U.S. District Court for the Southern District of New York ruled that TCI and 3G violated federal securities laws by failing to file required disclosures for swap transactions involving CSX shares.

The court determined TCI and 3G violated Section 13(d) of the Securities Exchange Act of 1934 by not filing a required disclosure within 10 days of acquiring beneficial ownership involving 5 percent of CSX shares and a required disclosure within 10 days after forming a group.

Court backs CSX’s position

The court also ruled that the defendants “testified falsely in a number of respects, notably including incredible claims of failed recollection, to avoid responsibility for their actions,” according to portions of the decision released by CSX.

The ruling enjoined TCI and 3G from further violating federal securities laws but did not prohibit them from voting their shares at the shareholders meeting.

On June 20, the U.S. Court of Appeals for the Second Circuit agreed with the district court ruling that TCI and 3G should be able to vote their shares. CSX officials had appealed the decision.

— Jeff Stagl


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