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Howard Stutz
 

Filing: Elaine Wynn learned of board issue from ex-husband

20 March 2015

LAS VEGAS -- Ousted Wynn Resorts, Limited board member Elaine Wynn said Thursday she first learned she was not being re-nominated to her position through phone conversations with her ex-husband, company chairman and CEO Steve Wynn.

In a filing with the Securities and Exchange Commission, Elaine Wynn said “the tenor” of a January telephone call with Steve Wynn “led me to wonder” about being ousted from the board.

Elaine Wynn has filed a proxy challenge and is asking company shareholders to re-elect her to the board. The Wynn Resorts shareholder meeting is scheduled for April 24. Elaine Wynn outlined her qualifications and reasons in her filing, which comes three days after Wynn Resorts filed its formal proxy.

She wrote in the filing that Steve Wynn suggested other company directors were “uncomfortable with the pendency” of a 2012 lawsuit she filed against her ex-husband over a long-standing shareholder agreement, which gives him control over her 9.5 million shares in the company.

After several conversations with other board members, including former Gov. Bob Miller and D. Boone Wayson, Elaine Wynn believed she was being removed the board.

“I met with the full nominating and corporate governance committee and the other independent directors and I responded to each and every question regarding my candidacy to the board,” Elaine Wynn wrote in her filing. “Following the end of the meeting, I had a telephone call with Mr. Wynn, in which he informed me that it was likely I would not be re-nominated.”

Wynn Resorts said Monday it could be forced to repurchase a portion of its corporate debt under unfavorable terms if Elaine Wynn prevails in her lawsuit. “A change in control provision” could be triggered if Elaine Wynn was allowed to “sell, gift or otherwise dispose” of some or all of her shares.

Based on the shareholders agreement Steve Wynn and Elaine Wynn control 19.3 percent of Wynn Resorts, the largest single stake. Investment management firm T. Rowe Price owns 17 million shares, or 16.8 percent of the company.

If Elaine Wynn gains control of her more than 9.4 percent stake, she would be company’s third largest stockholder. Steve Wynn would own 9.9 percent, or 10 million shares.

Elaine Wynn said in her filing she would avoid triggering a change in control event. She offered several solutions in the SEC filing, such as keeping her shares or pooling her shares with Steve Wynn to ensure their voting total is larger than any other shareholder.

“As the second and third largest stockholders of the company, respectively, Mr. Wynn and I would have every incentive to arrive at an agreement and avoid triggering a covenant violation,” Elaine Wynn wrote.

Also, Elaine Wynn reiterated her claim at that the shareholders agreement requires Steve Wynn vote to keep her on the board.

If she fails in her proxy fight, Elaine Wynn has said the Wynn Resorts board would be an all-male panel.

In the company’s proxy statement, the Wynn board said it plans add another independent director and “intends to prioritize women and diverse candidates in its search to bring new perspectives and experience to the board.”

Elaine Wynn also criticized the suggestion that she doesn’t meet Nasdaq qualifications for an independent director.

“I wouldn’t have qualified when I was married to the chairman and CEO, but obviously that’s no longer an issue,” she said.

In a statement, Wynn Resorts said that Elaine Wynn voted with the Board’s “unanimous determination” that the company has six directors who qualify as independent.

“As she has for over a dozen years, Ms. Wynn, acting in her role as a director, voted without objection in determining that she and Mr. Wynn do not qualify as independent,” the company said.