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Investor sues Apple for sitting on $137bn cash pile

Apple

By Reuters

Posted on 8 Feb 2013 at 11:45

A major Apple investor has sued the company, demanding it offers shareholders more of its $137 billion cash pile.

The unusual move comes as the Apple grapples with a tumbling share price, mounting competition in the smartphone and tablet markets and concerns about its ability to produce new breakthrough products.

Einhorn, a well-known short-seller and Apple gadget fan, said in an interview with CNBC that the company harbored a "Depression-era" mentality that led it to hoard cash and invest only in the safest, lowest-yielding securities.

Apple nearly went broke in the 1990s before Steve Jobs returned and engineered a sensational turnaround, with products such as the iPhone and iPad that became must-haves for consumers around the world. The company's near-death experience has led Apple to be exceptionally conservative with its cash.

Last March, just months after Jobs' death, Apple responded to a barrage of investor criticism over its large cash hoard by initiating a quarterly cash dividend and a share buyback that would pay out $45 billion over three years. At the time, Apple was sitting on $98 billion in cash.

People who have gone through traumas... and Apple has gone through a couple of traumas in its history, they sometimes feel like they can never have enough cash

Einhorn's lawsuit filed in US District Court in Manhattan targets a proposal by Apple to eliminate from its charter "blank check" preferred stock. The board now has discretion to issue preferred stock but is asking shareholders at its annual meeting on 27 February to vote on a proposal that would first require shareholder approval.

Einhorn urged Apple shareholders to vote against the plan, and put forward his own proposal for an issuance of preferred stock - which he deems superior to dividends or share buybacks - with a perpetual 4% dividend.

Analysts have expected stockholder pressure to increase as Apple's share price declines and its outlook grows murkier. Stock in the company that once seemingly could do no wrong has fallen 35% since its September record high through Wednesday.

Cash problem

Einhorn remains long on its shares. But the fund manager, whose Greenlight had a sub-par year in large part because of Apple's late-2012 stock swoon, said the company needs to fix its "cash problem."

"It has sort of a mentality of a depression. In other words, people who have gone through traumas ... and Apple has gone through a couple of traumas in its history, they sometimes feel like they can never have enough cash," Einhorn said on CNBC.

In an interview with Reuters, Einhorn said he had gone to Apple CEO Tim Cook in recent weeks after the company's chief financial officer, Peter Oppenheimer, brushed off his entreaties in September. Cook, who is rarely known to engage investors in exclusive conversations, was unaware of the earlier conversations with Oppenheimer, according to Einhorn.

"When I discussed this with Tim Cook, and actually, the conversation has been going on for the last couple of weeks, he said that he wasn't familiar with my previous conversations with Peter Oppenheimer and whoever Peter Oppenheimer's advisers were. I was surprised by that," Einhorn told Reuters.

But Apple fired back yesterday, saying Einhorn's lawsuit over the shareholder proposal was misguided and that striking the "blank check" provision from its charter would not preclude preferred share issuances in future.

"Contrary to Greenlight's statements, adoption of Proposal #2 would not prevent the issuance of preferred stock," it said in a statement. "Currently, Apple's articles of incorporation provide for the issuance of 'blank check' preferred stock by the Board of Directors without shareholder approval. If Proposal #2 is adopted, our shareholders would have the right to approve the issuance of preferred stock."

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User comments

Not sure but

I know bugger all about finance/investments, but couldnt Apple just turn around and say fine, iof you dont like it sell your stock and sod off?

By JStairmand on 8 Feb 2013

@JStairmand

No, that is the problem, and one of the reasons Dell wants to take his company private.

The company can't sneeze if the shareholders don't want it to. If they don't like what is happening, they can vote the board out of the company.


Can the shareholders overrule the board of directors?

If the directors have power under the company’s articles to make the decision, and (as would be usual) there is nothing in the company’s articles giving the shareholders power to overrule the directors, the answer is “not directly”. There are, however, various options open to shareholders.

1. Shareholders with at least 5% of the voting capital can require the directors to call a general meeting of the shareholders to consider a resolution overruling the decision.

2. Shareholders can also attempt to dismiss a director (see 15) or appoint new directors to the board, in the hope that they will outvote the existing board members.

3. Shareholders can take legal action if they feel the directors are acting improperly.

4. Minority shareholders can take legal action if they feel their rights are being unfairly prejudiced.

http://www.lawdonut.co.uk/law/ownership-and-manage
ment/shareholder-and-boardroom-disputes/shareholde
r-and-boardroom-disputes-20-faqs

By big_D on 8 Feb 2013

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