The Company initially refused to acknowledge that Marcato owned any BWW shares. Specifically, Company counsel stated that the Schedule 13D which we filed with the U.S. Securities and Exchange Commission on August 17, 2016, a copy of which was enclosed with our request, was "insufficient to demonstrate that any particular entity was a shareholder of BWW as of [August 22, 2016]." Company counsel insisted that we provide a brokerage account statement evidencing Marcato's ownership. When asked to explain, our attorneys were told by your counsel that Marcato "could have sold all of its shares" since the 13D filing. To put it another way: management appears to have envisioned a scenario in which Marcato submitted a shareholder list request after it sold all of its BWW holdings, without disclosing the sale in a subsequent 13D amendment. It's a scenario that defies logic. Company counsel then conditioned providing any information on Marcato entering into an onerous confidentiality agreement that went well beyond what was required by law. Surely, management must have understood that providing a draft agreement with such terms served no purpose other than to further delay our communications with other shareholders.Nevertheless, we reached out in good faith with a draft confidentiality agreement reflecting an accommodating approach. We also provided the account statement, as requested. In return, Company counsel asserted that Marcato Capital Management LP (" Marcato Capital") was not a proper party to the shareholder list request "[g]iven that the applicable statute requires the shareholder to own stock as of the dated [sic] of a demand." We were surprised by this response, given that Minn. Stat. § 302A.461 explicitly states that a "beneficial owner" has an "absolute right" to demand shareholder list materials and that Marcato Capital was clearly a beneficial owner. Your counsel then demanded that Marcato Capital provide copies of its confidential investment advisory agreements to prove that it was a beneficial owner of common stock. After multiple rounds of back and forth with counsel, management backed off its unsupported demands and conceded that we were shareholders and entitled to receive materials. We were optimistic we were putting this episode behind us. Unfortunately, when the materials we were promised finally arrived by email, the information we were given was incomplete, outdated and virtually useless. These materials included:
- Transfer agent-level shareholder lists of the holders of record of the Company's common stock dated as of September 13, 2016 and March 17, 2016. These lists did not provide any information regarding the identities or holdings of the actual beneficial owners of the common shares - information necessary to communicate with them and which is not only customarily provided but legally required to be provided; and
- A list of holders of Company shares held through employee benefit plans, dated March 14, 2016. This list is over six-months old and only provides information with respect to approximately 1% of the Company's outstanding shares.
- Contact information that was omitted in the Company's response (e.g., telephone numbers) with respect to each record holder and employee plan (a " Plan") participant;
- Dates on which each record holder became a holder of record of shares;
- Name, business address and telephone number of the Plan's trustee or administrator;
- Detailed explanation of the voting treatment of (A) shares of Company stock (" Stock") for which a trustee or administrator receives instructions from Plan participants and (B) shares of Stock for which either the trustee or administrator does not receive instructions or shares of Stock which are outstanding in any such Plan but are unallocated to any participant;
- Complete record or list of the holders of Stock and respondent banks (and their email addresses) who have elected to receive electronic copies of proxy materials with respect to meetings of stockholders of the Company pursuant to Rule 14a-16(j)(2) of the Securities Exchange Act of 1934 (the " Exchange Act");
- All information in possession or control of the Company or any of its transfer agents, registrars or proxy solicitors, or which can reasonably be obtained from DTC, brokers, dealers, banks, clearing agencies, voting trustees or their respective nominee, concerning the names, addresses, telephone numbers and number of shares of Stock held by the participating brokers and banks named in the individual nominee names of Cede & Co., specifically with respect to Cede & Co., the daily DTC Security Position Reports, or other similar depositories or nominees, including respondent bank lists, all omnibus proxies and related respondent bank proxies and listings issued pursuant to Rule 14b-2 under the Exchange Act;
- All information in or that comes into the Company's or its transfer agents', registrars' or proxy solicitors' possession or control, or that can reasonably be obtained from brokers, dealers, banks, clearing agencies, voting trustees or their respective nominee (including Broadridge Financial Services and Mediant Communications), relating to the names, addresses, and number of shares of the beneficial owners of Stock pursuant to Rule 14b-1(c) or Rule 14b-2(c) under the Exchange Act, including a NOBO list; and
- Updates to all of the information described above on a rolling basis going forward.
We look forward to hearing from you.Sincerely, Mick McGuire