List Sharing

I’m told that communication from BLUE to sub-unit holders has occured.  Any calls from WHITE yet?

The last we heard about the sharing of the non-objecting beneficial owners list was in this letter from Trust counsel.

The Trust will provide to you a list containing the names of each holder of Certificates and the amount of Certificates registered in the name of each such holder as of the close of business on March 28, 2019 as required by Section Fourth of the Declaration of Trust, solely for the purposes specified in the Letter. This list is enclosed herein as Exhibit A.

As for the remaining materials you requested, the Trust is willing to provide such materials, provided that the Trust has the legal authority to share such information. As you will understand, the Trustees cannot share the private contact information of thousands of individual holders without their consent unless there is a legal authority to do so. In your Letter, you reference “common law” as the sole basis for your request. We assume your legal counsel has conducted extensive legal research in support of your claim and, in order to expedite your request and reduce costs for the Trust, please provide us with legal authority, such as case law or treatises, applicable to the Trust. We look forward to hearing from you on this.

Alternatively, we would like to point you to Rule 14a-7 under Regulation 14A promulgated under Section 14 of the Securities Exchange Act of 1934, as amended, which requires the Trust to mail any and all materials of yours upon your request. Please let us know should you be interested in submitting a demand under Rule 14a-7. We would promptly comply with any such demand.

So it appears as if WHITE got holder names but not contact info.

I’m no lawyer but it looks like courts have decided in the past that ALL shareholder NOBO information is elegible to be shared.  Again, I have no idea about the exact set of laws (NY? Texas?) to which the Trust is subject.  That said, there is precident for Deleware C Corps being compelled to share.  It appears to be common practice to request this information in proxy fights.

The Nevada Supreme Court has not ruled on this topic. Several cases from Delaware, however, are instructive. In Shamrock Assoc’s. v. Texas American Energy Corp., 517 A.2d 658 (Del.Ch.1986) the plaintiff had begun a proxy fight against the defendant’s incumbent management. In so doing, the plaintiff made a demand for the stock ledger, and also demanded access to the NOBO list which the corporation had acquired to contact its shareholders. The defendant refused to deliver the NOBO list, claiming among other things that Delaware law only required delivery of the stock ledger, and that any other material, such as a NOBO list, was merely ancillary, and need not be produced.

The Delaware court rejected this argument. In interpreting the relevant section of the Delaware Code, the court found it had repeatedly recognized that “the stock-list materials provided to a shareholder should include all of those forms of shareholder data readily available to the corporation.” Id., at 661. If the corporation were allowed to shield the names of the actual owners of the corporation from other shareholders, the court found, it would have an unfair advantage in the proxy solicitation battle. Id. (citing Hatleigh, supra, pg. 1146, at 354-55). By requiring the corporation to divulge all of the shareholder information in its possession, the court concluded that the goal of fairness in proxy solicitation would be effectuated. Therefore, the court ordered that the defendant allow the plaintiff access to any NOBO list which the corporation might have acquired in the course of proxy solicitation. In addition, the court impliedly held that the plaintiff would be allowed access to all other forms of ancillary shareholder information used by the corporation to contact its shareholders, such as Cede & Co. breakdowns and magnetic tapes. Id; see also Scott v. Multi-Amp Corp., 386 F. Supp. 44, 51 (D.N.J.1974); Hatleigh, supra, pg. 1146.

Based upon the preceding authority, it appears that Bryson is entitled to inspect all materials which Cenergy uses regularly to communicate with its shareholders. This would include the NOBO list, as well as any Cede & Co. breakdowns and computer records which Cenergy has in its possession. Cenergy argues, however, that the Court cannot read the Nevada statute as to allow this broader type of inspection rights, for the Nevada Supreme Court has given this statute a very narrow construction. In that the state’s highest court has narrowly construed the inspection *1148 rights, Cenergy argues that this Court must similarly construe them.

 

 

Two Cards, One Vote

***Warning: I’m not a lawyer or a proxy expert.  Below are my conclusions based on research of similar cases.  I take no responsibility for your vote or the outcome.  Below is my opinion only.  I just write a blog.***

TL;DR:

We’re all going to get two proxy cards in either physical or electronic form (or both).  You do not need to vote both cards.

Vote only one card.

If you have a candidate that you prefer, I strongly suggest you specifically vote FOR that person using the card explicitly naming that person in the ballot question.

White = Oliver.  Blue = Cook.

An AGAINST vote for Oliver is not a FOR vote for Cook.  An AGAINST vote for Cook is not a FOR vote for Oliver.

It is my belief that the candidate with the most FORs win*. AGAINSTs are essentially non-votes and don’t contribute to the denominator of the tally*.

*My conclusion.  Could be wrong.

Any help in nailing this down definitively would be appreciated!  Also, feedback on my logic (or lack there of) is welcome.  Let’s get this right. 

Two Cards:

You will get two cards electronically or via mail.  I’ve personally received both via Fidelity.com (who uses proxyvote.com) but only one physical card (White) via snail mail.  I expect the physical Blue card will arrive at home in the coming few days.

The BLUE card is a solicitation to vote FOR or AGAINST General Cook.  The physical card received in the mail will be blue.  Electronic voting and the physical card will both have the language immediately below. blue

The WHITE card is a solicitation to vote FOR or AGAINST Eric Oliver.  The physical card received in the mail will be white.  Electronic voting and the physical card will both have the language immediately below. white

One Vote:

This PDF written by Fried Frank is a treasure for getting into the nitty gritty on proxy battles.  The following language on page 8 is relevant to our situation:

In the course of a proxy contest, investors may receive multiple proxy cards from each side, and may, intentionally or inadvertently, submit more than one proxy card. The latest dated proxy card revokes any prior proxy.

I take this to mean that your latest vote nullifies and earlier votes.  For instance, if you voted the WHITE card FOR Eric Oliver yesterday and then vote BLUE card AGAINST General Cook tomorrow, your second vote is the ultimately the one that counts.  In that instance, your counted vote would be a vote AGAINST General Cook which isn’t the same as a vote FOR Eric Oliver.  The reverse is also true.

It appears to me as if AGAINST votes are non-votes and effectively function the same as the ABSTAIN option.

To be safe, I suggest you ignore the card of the candidate you oppose.

What Now?:

If you are unsatisfied with your vote (for instance: you made an AGAINST vote instead of a FOR vote), I suggest you clear your current vote online (I can do this on Fidelity.com/proxyvote.com) or call your brokerage and have them assist you with clearing your vote.  After your vote is clear, find the FOR card that you support (White = Oliver, Blue = Cook) and vote FOR.

If you’ve responded via physical mail and want to amend your vote, contact your brokerage to have them assist you in doing so.

Of course, if the card you didn’t vote is the FOR card for the candidate you prefer, you can simply vote that card as FOR.  It will override your prior vote (assuming the plumbing works as expected).

Supporting Evidence and Miscellaneous:

If you inadvertently voted to support the current board with the White Proxy Card, it is not too late to change your vote. Simply vote for the Blue Proxy Card. The most recent vote sent before voting closes will be the only vote that counts.

  • Barron’s writes on the state of proxy voting.  Votes via brokerage houses get rolled down to the owner and then get rolled back up in a fairly ugly way.  This makes the case for voting once and doing so as directly and simply as you can (FOR).

For an annual meeting vote, DTC/Cede identifies the bank-broker participants that hold the stock as of the record date and sends them an omnibus proxy. Participants, in turn, send a proxy or a voting instruction form (VIF) to their own clients, such as institutions, individual investors, or respondent banks, which have accounts with a participant bank.

Cascades of proxies can follow. Respondent banks may have their own clients, which may include still other banks with shareholder clients. All will send out proxies or VIFs to their clients. As votes are cast, the proxies and VIFs reverse course, heading back up the chain until they reach the tabulator of the vote. This can be done by mail, email, or telephone, depending on the participant, the shareholder, and the third parties involved.

SoftVest Appeals to Better Judgement

SoftVest, L.P., Horizon Kinetics LLC, and ART-FGT Family Partners Issue Open Letter to Trustees of Texas Pacific Land Trust

SoftVest calls for an end to the proxy battle more than a few times in this open letter.

In fact, only yesterday Robert Packer, TPL’s Chief Financial Officer, e-mailed Kline D. Oliver, Vice-President of SoftVest Advisors LLC, requesting an updated list of drilled, completed and permitted wells on TPL non-participating royalty interest property that Mr. Oliver maintains based on his dedicated ongoing research.  Mr. Oliver provided the list to Mr. Packer this morning, even after being the target of a distasteful attack letter issued by you before the open of the market.

As we trust you know, Mr. Oliver has shared similar information in the past with TPL’s management at their request and at no cost – despite TPL’s offer to pay for such work.   

We see no reason why the Trustees cannot have a collaborative relationship with Mr. Oliver, much like TPL’s management has had and continues to have with him.  Mr. Oliver is, among other things, a source of deep expertise and knowledge about TPL and the industry which in our view will immensely enrich the Board.

It is time to put this proxy contest behind us: we call on you two Trustees to nominate Mr. Oliver, and avoid disrupting what has historically been a productive working relationship between him and TPL’s management.

 

However, one of the unescapable consequences of having a charter from the 19th century that limits your governing body to only three individuals is that each of them must bring core areas of competency needed for the success of TPL

 

Ultimately, we encourage you to put an end to this unnecessary and wasteful proxy contest. We ask that you endorse the nomination of Eric Oliver at the upcoming special meeting and allow him to work collaboratively with you both of you to create a better TPL.  The three of you can bring TPL into the 21st century, and transform our joint investment into a modern corporation with an expanded Board with modern fiduciary duties to all shareholders that can include honorable men like General Cook as part of a broader mosaic of skillsets.

If you insist on continuing this unnecessary proxy contest then at a minimum let’s have a town hall meeting where both nominees will have an opportunity to present their respective ideas to TPL’s shareholders, which we think would benefit all shareholders.

It is time for all of us to start working together for the good of TPL.

Proxy Vote Posted at Fidelity.com

I’m assuming it’s up at other brokerages or will be soon.

At Fidelity.com, one has to login and then select “statements” from the All Accounts menu at the top.  From there, click “proxy materials”.  Once you vote there is an option to get a confirmation sent to your email.

Posted deadline is May 21, 2019 11:59 Eastern

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Notice the “OPPOSITION RECOMMENDATION: FOR” line.  I haven’t voted yet.  That was pre-populated by Fidelity or proxyvote.com.

My experience says to take your time when clicking.  The system takes 20+ seconds to move on to the next screen.  Click once and wait for the screen to update.

Note that there is a blue hyperlink in the top left of the voting screen that will allow you to vote in person.  If you select that option a Legal Proxy will be generated for you to carry to the meeting.

SoftVest Request Holders List

EDGAR: Request to Inspect and Copy Certain Records

Yesterday, a reader of the blog indicated that they received a call from ‘TPL’ to discuss the proxy and presumably sell BLUE.  Team WHITE is requesting the list so that they may do the same.

Anyone else get a call yet?

I am writing to formally request that you make available for inspection and copying to me and my representatives, during TPL’s usual business hours, the list of certificate holders of TPL showing the name, address, email address (if available), and number of Shares registered in the name of each such holder as of the close of business on March 28, 2019, which is the record date for the upcoming special meeting of holders of Shares currently scheduled for May 22, 2019 (the “Special Meeting”). I make this request pursuant to the express terms of Section Fourth of the Declaration of Trust of TPL and common law.
Further, on the same basis, I hereby request that you make available for inspection and copying a copy of the Depository Trust Company Omnibus Proxy, omnibus proxies from banks and brokerage firms and the list of non-objecting beneficial owners of Shares that TPL has recently requested from Broadridge Financial Solutions, Inc. As you know, such “NOBO” list includes the names of beneficial owners of Shares who hold through brokers and other custodians that have given permission to their financial intermediary to release their identity. TPL management obviously intends to use such information to solicit proxies from holders of Shares in connection with the Special Meeting. From a corporate governance perspective, we assume you recognize how important it is for TPL investors that SoftVest not be denied the same ability to make its case that management enjoys.