Elaine Wynn continues fight to stay on Wynn Resorts board

Elaine Wynn speaks during a Las Vegas Metro Chamber of Commerce Business Power Luncheon on Wednesday, May 8, 2013, at the Rio.

Advancing her ongoing fight to remain on the board of Wynn Resorts, Elaine Wynn today further laid out her case for why stockholders should reject the company’s arguments and re-elect her as a director.

Via a proxy statement filed with the Securities and Exchange Commission, Wynn told stockholders to vote for her instead of one of the other two candidates nominated to the board. She also responded to some of the specific claims that Wynn Resorts made in its proxy statement earlier this week.

Wynn, the ex-wife of CEO Steve Wynn, and the company have gone back and forth publicly since the board revealed more than two weeks ago that it wouldn’t renominate her.

In today’s proxy statement, Elaine Wynn said she began to wonder whether she’d be renominated after a January phone call with her ex-husband.

The drama is playing out leading up to the company’s annual stockholders meeting April 24.

In its own proxy statement on Monday, Wynn Resorts honed in on a lawsuit

Elaine Wynn filed against Steve Wynn over a stockholder’s agreement limiting her ability to sell shares. The company said her suit threatens to trigger a change of control provision that could force it to buy back some debt under less favorable terms.

But Elaine Wynn today called that reason inauthentic and invalid. She said the lawsuit matter existed when she was last re-elected to the board in 2012 and that her dispute with Steve Wynn is a “stockholder-to-stockholder issue and not a board issue.”

“This issue will persist whether or not I serve on the board, and in my opinion, it does not impact the ability of either of us to act as effective board members,” Elaine Wynn said in her statement. “Although I am seeking to gain control of the shares I own, I remain devoted to the company and its future success. I intend to remain a significant stockholder indefinitely.”

Elaine Wynn took aim at the idea that board discussions were hindered by a perception that she might try to use the talks to her advantage in the lawsuit, “or to otherwise advance her individual position as a stockholder.” She said those concerns apparently didn’t exist when she was last renominated, which was after the lawsuit was filed.

“Once again, I believe that this reason is pretextual, because nothing has changed since the last time I was up for re-nomination,” she said in the statement.

Wynn Resorts also said she can’t participate in crucial committee work because she isn’t considered independent under Nasdaq listing standards. But Elaine Wynn called that statement “quite puzzling” and said she should, in fact, qualify as independent. She said she wouldn’t have been considered independent when she was married to Steve Wynn, but “obviously that’s no longer an issue.”

In an emailed statement from a Wynn Resorts spokesman, the company doubled down on its assertion that Elaine Wynn is not independent. The statement said that last month, “following a review of the definition of ‘independent director,’” Elaine Wynn voted in favor of the determination that the company has six independent directors — none of which are her.

“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 statement said.

In a revised proxy statement, Elaine Wynn said she voted in favor of the board’s “historical determination,” and didn’t think it would be used as a reason to remove her. She said she “reanalyzed” whether she qualifies as independent, and believes she does.

She asked stockholders to vote for her instead of John J. Hagenbuch, whom the company has nominated in addition to J. Edward Virtue. Both Hagenbuch and Virtue have been directors of Wynn Resorts since 2012.

Elaine Wynn said that, unlike her, Hagenbuch has “little, if any, experience in the highly regulated gaming industry.” Wynn Resorts has said he brings to the board valuable expertise as a private equity investor and director of other companies, among other skills.

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