Late yesterday Greenlight Capital under Greenlight Entities launched a formal lawsuit against Apple over matters of securities. Greenlight is requesting that the courts force Apple to allow shareholders to vote on particular amendments without them being illegally bundled as they currently are. Our report covers what the court filing covers along with formal statements by both Greenlight and Apple.
The Plaintiffs in this Complaint before the Court
2.Greenlight Capital Qualified
3. Greenlight Capital Offshore and Partners, and
Greenlight Capital Master Ltd
Collectively the four are the "Greenlight Entities."
Nature of the Action
The formal complaint reads as follows:
"This is an individual action under Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") for injunctive relief. The Greenlight Entities, investors in Apple common stock, seek to require Apple to comply with the "unbundling rules" promulgated by the Securities and Exchange Commission (the "Commission") under the Exchange Act, including Rules 1a-4(a)(3) and 14a-4(b)(1). The unbundling rules require that shareholders be allowed to vote on each and separate matter presented in a proxy for shareholder vote. On January 7, 2013, Apple issued a proxy statement (the "Definitive Proxy") and proxy card (the "Proxy Card"). The Definitive Proxy and Proxy Card violated the Commission's unbundling rules by aggregating three different and unrelated amendments to Apple's Restated Articles of Incorporation (the "Articles"), impermissibly forcing shareholders either to accept all three proposed amendments or reject all three proposed amendments."
The reference in the formal complaint before the court regarding "Apple's Definitive Proxy" could be found here.
According to the court document, the relevant facts were presented as follows:
"Apple scheduled an annual shareholder meeting for February 27, 2013. It filed the Definitive Proxy, along with Proxy Card, on January 7, 2013.
Proposal No. 2 in the Definitive Proxy seeks proxies for the annual shareholder meeting to amend Apple's Restated Articles of incorporation (the "Articles) in three ways, including: (1) elimination of certain language relating to the terms of office of directors in order to facilitate the adoption of majority voting for the election of directors, (2) elimination of Apple's power to issues preferred stock, and (3) establishment of a par value for Apple's common stock of $0.00001 per share (collectively, "Proposal No. 2").
As of the record date for the Apple annual meeting, January 2, 2013, the Greenlight Entities and their affiliates owned more than 1.3 million shares of Apple's common stock. The Greenlight Entities support two of the items of Proposal No. 2; (i) elimination of certain language relating to the term of office of directors and (ii) establishment of a par value for Apple's common stock. The Greenlight Entities oppose, however, the elimination of Apple's power to issue preferred stock because Greenlight Entities believe that this measure is not in the best interest of shareholders.
However, because Proposal No. 2 impermissibly bundles all three changes to the Articles into one proposal in contravention of the "unbundling" rules, the Greenlight Entities can only vote for all three of the proposed changes, or against all three of the proposed changes. Accordingly, the Greenlight Entities are denied the right to voted separately on each of the proposed amendments to the Articles, as contemplated by Rules 14a-4(a)(3) and 14a-4(b)(1) under the Exchange Act. "
The "Rules" that the Greenlight Entities are referring to are as follows:
SEC Rule 14a-4(a)(3) provides: (a) The form of proxy … (3) Shall identify clearly and impartially each matter intended to be acted upon, whether or not related to or conditioned on the approval of other matters … (Emphasis added).
SEC Rule 14a-4(b)(1) provides: Means shall be provided in the form of proxy whereby the person solicited is afforded an opportunity to specify by boxes of choice between approval and disapprovals of, or abstention with respect to each separate matter referred to therein as intended to be acted upon, other than elections to office. (Emphasis added).
Greenlight Entities complaint further stated that on February 1, 2013, the Greenlight Entities urged Apple to withdraw the proposed amendment eliminating Apple's power to issue preferred stock from consideration by the shareholders, without success. By email dated February 5, 2013, the Greenlight Entities again asked Apple to withdraw the amendment, or at a minimum, to unbundle the three proposed amendments to the Articles so that the shareholders could exercise their right under the Commission's rules to vote on the proposals separately. To date Apple refused the Greenlight Entities' unbundling request, necessitating this action.
Apple's issuance of the Definitive Proxy contravened rules and regulations prescribed by the Commissions, and therefore violated Section 14 of the Exchange Act.
The Definitive Proxy and Proxy Card provided to the Plaintiffs and all other shareholders seek their vote on Proposal No. 2 which is described in the Definitive Proxy and Proxy Card.
Consequently, Apple should be enjoined from (i) certifying or otherwise accepting any vote cast, by proxy, for or on behalf of any Apple Shareholder in connection with Proposal No. 2 in Apple's Definitive Proxy or Proxy Card, (iii) amending its articles of incorporation based upon any such vote or votes, or (iii) otherwise proceeding at its February 27, 2013 general shareholders meeting or at any other times in a manner inconsistent with Rule 14-4(a)(3) and (b)(1).
The Remedy that Greenlight Entities is seeking from the Court
Greenlight Entities respectfully request the court to enter judgment in their favor and against Apple as follows:
Preliminary and permanently enjoining Apple from (i) certifying or otherwise accepting any vote cast, by proxy, for or on behalf of any Apple shareholder in connection with Proposal No. 2 in Apple's Definitive Proxy or Proxy Card, (ii) amending its articles of incorporation based upon any such vote or votes, or (iii) otherwise proceeding at its February 27, 2013 general shareholders meeting or at any time in a manner inconsistent with Rule 14a-4(a)(3) and (b)(1). (b) Awarding such other and further relief as the Court deems just and proper.
The case was filed yesterday, February 7, 2013, in New York by Akin Gump Strauss Hauer & Feld LLP.
The patent infringement case presented in today's report was filed in New York Southern District Court. The Presiding Judge in this case is noted as being Judge Richard J. Sullivan. For the record Apple did file another Definitive Proxy statement late yesterday but doesn't seem to relate to the matters noted in the Greenlight Entities lawsuit.
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