board meet with us to consider our candidacy, you would not be able to hear whether the board would be willing to do so until after Thanksgiving because of travel schedules. On the Friday after Thanksgiving, you called and said that nominating committee would be willing to meet and that the lawyers should talk to schedule such a meeting.
Your side proposed December 11th, Sunday night, in Calgary and we flew there for the meeting. While I very much enjoyed meeting the directors and thought I could work well with them on the board, I took it quite negatively that the committee was unwilling to meet with my proposed director, trusted partner and good friend Paul Hilal particularly in light of the fact that he left his newly born baby girl and beautiful wife to travel a fair distance on a Sunday night. I also felt that you were perhaps attempting to run out the clock on us. I didn’t completely understand the Canadian proxy rules at the time, and had been erroneously told that we had to file proxy materials shortly. When I learned that we could file materials up to nearly the day of the meeting, it took some of the time pressure off.
While I was happy to hear from you later that the board had unanimously approved my nomination, I told you that I was disappointed you would not consider Paul as a director. You explained that Paul was not a CEO, that I was ‘the man’ at Pershing Square, and as such the board would not consider him. You also told me that the board had appointed two other directors with railroad industry expertise and that you would ideally like to announce us together in one coordinated press release. You then told me that the lawyers would talk about customary arrangements. When I asked what you meant by that, you explained that the company would like to review confidential information with me that would help me understand the company’s business performance and that I would have to sign a confidentiality agreement. I asked whether the other directors had signed such a document and you told me they had done so. You encouraged me to let the lawyers handle it.
When the document finally arrived a day or so before I left town for holiday, it was clear that it was a standstill arrangement rather than a confidentiality agreement. I was disappointed by the proposed agreement principally because I had explained at our very first meeting how we were able to work with the board in the JC Penney situation without signing a standstill, and I had expressed both through our counsel and to you directly that we would not sign such an arrangement.
Two months have passed. We are still left out in the cold. I have been accused by you in a public letter of making false and misleading statements. We are not in a great place.
In order to improve communication, you and I need to speak more often. If you don’t like dealing with me, I am happy to speak with someone else on the board. The fact that you have been unwilling to give me your contact information doesn’t send a good message about your desire and interest in working with me (the only numbers I have are from times that you called me on my cell phone and the number was listed). Alternatively, in cases like this, most companies set up a special committee tasked with working with us. One of the biggest issues we have had is that weeks go by between communications, perhaps because you need to poll all of your directors every time a decision needs to be made. From our side, it appears that you are delaying responding, and perhaps it is simply the logistics of getting the board together. If you could designate a small committee of directors who have the time to be responsive to this matter, it would be a good idea in my view. I encourage you to ask your advisors about this.
My impression of you when we first met was quite favorable. You seem like a solid, good man. I would like to resolve this situation amicably in the best interest of shareholders as I am sure you would.
To throw out alternative ideas, I am open to not serving on the board as long as I am comfortable that we are adequately represented by directors that we designate (that of course you have to approve) and we are comfortable with the composition of the rest of the board.
Let’s avoid having a border skirmish turn into a nuclear winter. Life is too short.
Please call me when you can.
From: John Cleghorn
Sent: Wednesday, January 04, 2012 05:47 PM
To: William A. Ackman
Thank you for your email and for your phone message. Let me reiterate that we would like to reach an agreement which advances the best interests of the company. As you will appreciate, I will be discussing your email with my board.
From: William A. Ackman
Sent: Wednesday, January 04, 2012 05:58 PM
Subject: Re: CP
I greatly appreciate your email. I shared the email with my colleagues after I sent it and they said that it may be perceived as overly blunt by you.
When we met, I promised to be extremely straightforward and you promised the same. I hope I did not offend with my directness and I apologize if I did so.
Please also note that I am not talking to the press and that a business story that appeared this afternoon on BNN sourced from ‘a source close to the action’ was not me or anyone else affiliated with Pershing Square. I don’t have any intention of speaking to the press unless and until we are unable to resolve this matter.
I look forward to hearing from you.