Bits Blog: Microsoft Cuts Deal With Activist Shareholder to Avoid Fight

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DealBook: Still-Unhappy Southeastern Seeks Dell Shareholder List

It appears that despite Dell Inc.’s efforts to the contrary, Southeastern Asset Management remains unconvinced that the computer maker’s $24.4 billion sale to its founder is the last best hope for shareholders.

In a letter to the company’s board, Southeastern reiterated its belief that the take-private transaction denied investors the full benefits of Dell’s turnaround. To that end, Southeastern said that it was seeking a full investor list from the company, as well as other books and records.

A number of other investors, including T. Rowe Price, have publicly said they oppose the sale to Michael S. Dell and the investment firm Silver Lake, deeming the group’s $13.65-a-share offer too low. Southeastern has suggested that a better alternative is for Dell to pay out a special $12-a-share dividend, paid for by bringing back overseas cash, selling off Dell Financial Services and raising $9 billion in new debt.

Southeastern cited Dell’s willingness now to bring home some of the company’s substantial cash hoard that is currently held overseas.

The firm also took issue with Dell management for not providing financial results for its product segments, in what Southeastern argued was an attempt to mask Dell’s improving business mix. Had the computer company broken out its results in this way, Southeastern said, the data might reflect the lessening importance of Dell’s struggling PC business and the growth of its enterprise arm.

“While the board of directors characterizes the proposed transaction as a transfer of ‘the risk of the business to the buyout group,’ we believe it is more appropriately characterized as a transfer of ‘the opportunity of the business to the buyout group,’” Southeastern wrote in the letter. “Management knows the company better than anyone, and clearly sees Dell’s substantial unrealized value.”

DealBook: Judge Sides With Einhorn and Halts an Apple Shareholder Vote

Eduardo Munoz/ReutersDavid Einhorn of Greenlight Capital argues that Apple violated securities regulations by bundling shareholder proposals.

9:26 p.m. | Updated

A federal judge on Friday ordered Apple to halt collecting shareholder votes on a contentious proposal to change some of its corporate charter, handing a victory to the hedge fund manager David Einhorn.

The ruling issued Friday touches on a fairly narrow legal point. But it signals a clear victory for Mr. Einhorn, who has taken up a fight with Apple over using some of the $137 billion in its corporate treasury to make additional payouts to shareholders.

Mr. Einhorn’s hedge fund firm, Greenlight Capital, has sued Apple in Federal District Court in Manhattan, arguing that the company improperly tied together several shareholder issues to be put for a vote into one proposal. Such bundling violated rules set by the Securities and Exchange Commission, lawyers for the hedge fund argued.

At the heart of the hedge fund’s complaint was that Apple combined a plan to eliminate its ability to issue preferred stock without shareholder approval with two other initiatives that Greenlight favored. By allowing the vote to proceed, lawyers for the firm argued, Greenlight was being forced to vote against its own interests.

The judge overseeing the case, Richard Sullivan, firmly agreed with that interpretation.

“Given the language and purpose of the rules, it is plain to the court that Proposal No. 2 impermissibly bundles ‘separate matters’ for shareholder consideration,” Judge Sullivan wrote in his order. The judge said at a hearing on Tuesday that he was leaning toward Mr. Einhorn’s point of view on the matter.

His ruling comes just days before the company’s shareholder meeting next Wednesday. It will also prevent Apple from accepting shareholder votes on Proposal No. 2, which had included Apple’s plans to eliminate its preferred shares. Some shareholder rights advocates have contended that preferred shares have been used as an anti-takeover tactic by boards and have pushed for their elimination.

Kevork Djansezian/Getty ImagesTim Cook, the chief of Apple.

Mr. Einhorn’s bigger goal has been to persuade Apple to return some of its billions sitting in cash to shareholders as a way to unlock the company’s value. Greenlight Capital has contended that the company has far more cash than it will ever need, and that preferred shares could provide additional payouts worth about $61 a share, while still leaving the company with an enormous war chest.

“We know they embrace innovation and can recognize it when they see it, even if it isn’t the kind of innovation people usually think of when they think of Apple,” Mr. Einhorn said in a conference call with analysts on Thursday.

Mr. Einhorn said that Apple should issue preferred shares, that would augment a stock dividend and buyback program that the company already has in place.

Although Apple was once the stock market darling for its meteoric rise, in recent months, share prices have sagged.

In a statement on Friday, Greenlight praised the judge’s ruling. “This is a significant win for all Apple shareholders and for good corporate governance,” the firm said. “We are pleased the court has recognized that Apple’s proxy is not compliant with the S.E.C.’s rules.”

Apple will now most likely have to break Proposal No. 2 into its separate elements and resubmit them to a vote.

“We are disappointed with the court’s ruling,” said Steve Dowling, a spokesman for Apple. “Proposal No. 2 is part of our efforts to further enhance corporate governance and serve our shareholders’ best interests. Unfortunately, due to today’s decision, shareholders will not be able to vote on Proposal No. 2 at our annual meeting next week.”

Apple had argued that the plan in its entirety was actually shareholder-friendly, and enjoyed the backing of prominent investors like the California Public Employees’ Retirement System.

Anne Simpson, the Calpers director of global governance, said in a statement: “We continue to support Apple in their efforts, and believe that the implementation of majority voting and shareholder approval for the issuance of new stock — preferred or otherwise — is worth waiting for.”

Ruling for Greenlight Capital in Battle With Apple