Icahn's XO limbo Exec e-mail:
'significant reason' to keep stock low
By JOSH KOSMAN, NY Post
Last Updated: 5:02 AM, July 27, 2011
Posted: 11:41 PM, July 26, 2011
There is new evidence that the former chief executive at a $1.5 billion telecom provider worked to keep the firm's share price low so billionaire Carl Icahn would have an easier time keeping control of billions of dollars in tax credits.
"There is a significant reason for keeping the stock below $2 for as long as possible," Carl Grivner, then CEO of XO Holdings, wrote to XO Director and Icahn Associates employee Peter Shea in an Aug. 8, 2008, e-mail. Grivner was discussing changes to management compensation, including the possibility of having a stock employee-bonus plan.
An hour later, XO CFO Greg Freiberg, in an e-mail to Shea, explaining why such a strategy made sense, said, "The key point here is for Icahn to maintain at least an 80 percent [share] in order to keep the ability to consolidate NOLs [net operating losses]."
"Below $1.55 per share," Freiberg continued, "Icahn is at 80 percent or more. If the XO stock price goes above that, then potentially you lose the ability to consolidate the NOLs."
Icahn was keen on maintaining his 80 percent stake because XO had $4 billion in net operating losses.
A shareholder in XO Holdings said, "I seriously believe this newly disclosed information raises the question as to whether actions that amount to a criminal fraud have occurred here."
None of the e-mails say Icahn knew of any plan to keep the stock price low.
In fact, in a telephone interview yesterday, Icahn told The Post, "If I wanted to keep the stock price depressed, why did I work so hard to build up accounts before and since 2008 that now account for $10 million in monthly sales?"
He said he could not comment on the specifics of the case since there is pending litigation.
The sizzling e-mails were included in an amended shareholder suit filed last week in Manhattan state court.
The judge is expected to make a decision in mid-August -- around the time Icahn plans to close a deal to buy the roughly 10 percent of the company's shares he does not own for $1.40 per share.
XO shares closed yesterday at $1.37, unchanged. At the time of the Grivner e-mail, the company shares were trading for 50 cents.
A 2009 proxy statement shows that XO used cash rewards as the "the primary vehicle" for recognizing individual performance for eligible executive officers, not stock.
A telecom analyst, who requested anonymity, said, "XO has not been investing in the business to the same degree as competitors."
More investment would have given XO the chance to build its fiber capacity and to possibly buy competitors in a quickly consolidating local telecom market, the analyst said.
Companies accrue NOLs when their tax deductions in a given year exceed their taxable income. Under the tax laws, a shareholder who owns 80 percent or more of a company may use its NOLs to reduce the tax burden of other, profitable businesses, according to the suit.
An XO spokesman declined comment. jkosman@nypost.com
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