Einhorn stops Apple (APPL) shareholder vote on preferred stock


Hedge fund manager David Einhorn has been urging AAPL for some time to adopt his pet idea of issuing preferred stock that would basically be backed by the company’s gigantic accumulated cash position.

APPL isn’t interested.

In the Steve Jobs days, I think the AAPL CEO would have told Mr. Einhorn, either directly or through the press, that his answer was “No!!,” and that Einhorn should stop trying to interfere with the running of AAPL’s business.  This probably would have been the end of the matter.

The current AAPL management didn’t do that.  Instead, it put on the agenda at the company’s annual meeting this week a shareholder vote to change the company’s charter in a way that would forbid the kind of perpetual preferred Einhorn is championing (see my analysis of the preferred idea).

Not only that, but AAPL wrapped this proposal in a package of others and asked for a single vote on the whole bundle.

last week

Mr. Einhorn sued, saying in effect that the bundling violates both common sense and SEC rules.  On Friday, a federal judge agreed–and barred a vote on “Proposal #2″ at this annual meeting.

According to the Financial Timesby the time of the court ruling AAPL had received ballots representing 40% of the outstanding shares.  Of them, 97.5% had voted for the company and, by implication, against Mr. Einhorn.

the voting results are no surprise

In my experience, individual shareholders vote with management no matter whether it’s in their economic interest or not.  Hard for me to understand, but easy to predict.

For almost two decades, the SEC has been pushing the compliance departments of professional money managers on proxy voting.  The regulator wants them to take seriously their fiduciary obligation to vote the shares under their stewardship in the best interests of their customers–or else.  This pressure has resulted in the rise of third-party firms like ISS and Glass Lewis, which have set themselves up as independent experts in proxy analysis and making shareholder-friendly voting recommendations.  The path of least resistance for institutional investors seems to me to be to subscribe to  one of these firms’ services and vote accordingly.

Both ISS and GL recommended voting for AAPL in this matter.

In other words, all the individuals and all the traditional institutions were going to vote against Einhorn.

why a vote at all?   …and why this vote?

Mr. Einhorn points out on the Greenlight Capital website that because no one has tried his preferred suggestion, that doesn’t mean it’s a bad idea.  Of course, it doesn’t mean it’s a good one either  …or a good one for AAPL.

What’s clear, however, is that AAPL doesn’t want to discuss the idea publicly–even to say that it’s a thought, but one that won’t work for AAPL.  I think this is a mistake.

I think I understand why AAPL set up the vote as a bundle, though, rather than a straight yes-or-no on the preferred issue alone.  From my common sense viewpoint, as well as from an SEC perspective, grouping a bunch of disparate proposals together just doesn’t seem fair.  (In addition, for what it’s worth, I don’t see how narrowing the scope of possible future preferred issues serves shareholders interests.  It just makes Mr. Einhorn go away.)

Why bundle?  AAPL must know that institutions pretty much vote whatever way ISS tells them.  I think AAPL presented the preferred proposal to the advisory service in a package that it simply couldn’t recommend voting against.  It thereby also avoided the risk that if the preferred ban were offered separately ISS would recommend a “no” vote, which a ton of institutional holders would then cast.

AAPL management hasn’t done itself any favors, 

…in my view.

The company’s unwillingness to lay out reasons–like that the preferreds might constrain needed US-sourced cash flow–for opposing the Einhorn proposal make management look weak.

The bundling makes the company look like it has something to hide.

AAPL’s odd behavior suggests there’s considerably more to this story than meets the eye.

David Einhorn’s preferred stock proposal for Apple (AAPL)

Yesterday hedge fund manager David Einhorn made public an open letter to AAPL shareholders, publicizing his suggestion that the company issue perpetual preferred stock to shareholders.

mechanics of the issue

AAPL has no debt and $137 billion of cash on its balance sheet.  It is generating cash flow at the rate of about $40 billion a year.

Einhorn proposes that AAPL issue a new security for free to shareholders that would pay a total yearly dividend of $2 billion.

The new security would:

–be perpetual, meaning it would go on forever (or until AAPL goes out of business).  This also means the preferred would have no redemption value, that is, it could/would never be returned to AAPL in exchange for a cash payment

–be cumulative, meaning any unpaid dividends would continue to be obligations of AAPL, rather than simply lost, as is the case with dividends on common stock

–have a dividend preference over the common, meaning the preferred dividend–and any accumulated unpaid ones–would have to be paid before a common could be.


In round numbers, AAPL has a billion shares outstanding.  One way of implementing the Einhorn proposal would be to distribute one share of preferred for each common share held.  If so, the preferred would pay an annual dividend of $2.

How much would you pay for a potentially infinite stream of $2 annual payments?  Einhorn tried to frame the issue psychologically by saying this is “$50 billion” worth of stock, or $50 a share if the issue were constructed as I describe.  This would also be a 4% yield.

Especially for the first issue of this type, $50 could be low.  Yes, it represents 25 years of undiscounted dividend payments.  But AAPL is a pristine credit.  The yield is a huge premium to the 30-year Treasury.  There are tons of AAPL fans who might like a “cheap” way of owning an AAPL security–AAPL has (foolishly, in my view) chosen so far not to tap this base of support by splitting its common.  And the preferred issue would have novelty value.

an investor’s view

–The proposed preferred has no claim on AAPL’s assets and represents only a tiny fraction of the company’s cash flow.  It wouldn’t have voting rights under normal circumstances.  So it isn’t equity in any practical sense.  Arguably, therefore, its issuance might have no effect on the price of AAPL common.  In all likelihood, any negative effect would be tiny.  There’s even a (lottery ticketholder’s) chance that the effect would be positive.  

So the Einhorn proposal is like creating free money, as I wrote yesterday.

–Einhorn’s hedge fund clients hold about $500 million worth of AAPL.  Einhorn himself gets some percentage, say, 20%, of the profits they make on his investment choices.  An AAPL preferred issuance could represent a $10 million payday for him.

--The preferred is not a one-and-done story.  There’s no reason why this magic trick can’t be repeated at least several more times, each one giving a $50 billion boost to aggregate shareholder wealth.

–What’s not being said is that the pledge of future cash flows puts handcuffs on management, for good or for ill.  Each $2 billion in cash flow dedicated to preferred dividends means less that management is free to use for capital expenditure, acquisitions or other uses. The preferred can be regarded as a prudent safety measure.  Look at Hewlett-Packard–a once-great company that has squandered an enormous amount of its shareholders’ money through a decade of lunatic, management- and board-approved acquisitions.


–Q:  Who are these guys to tell us what to do?  They don’t work here.

A: They’re the owners.  You work for them.

Reply:  That can’t be right.

–About 3/4 of AAPL’s cash is held outside the US, so it’s only available to pay preferred dividends if it’s repatriated.  That would mean paying income tax at 35% on anything that’s brought back.

–If we assume AAPL generates its global cash flow in the same proportions as its cash holdings, then only $40 billion annually is available to pay dividends of any type.  $10 billion+ already goes to pay the common dividend.

If shareholders say they think Einhorn has a good idea (which he does), then management has potentially got to focus a lot more on earning money in the US.

my 2¢

There’s a tipping point out there somewhere, after which the Einhorn trick will no longer work.  Not a current worry, though.

There’s also a legitimate concern that at some point the diversion of cash flow away from reinvestment in the firm will hamstring management and hamper growth.  With $137 billion in the bank, not a concern, either.

weird stuff from the AAPL high command

In the old days, Steve Jobs would have thrown Einhorn out of his office and that would have been case closed.

IN contrast, current management is seeking to change the company’s charter to outlaw preferreds like Einhorn’s.  Not only that, it’s taking a page from Congress’s book, wrapping the change inside a bunch of others that are supposed to be voted on as a group.  So the owners don’t get a say so on the Einhorn idea alone.

These action has, predictably, had the opposite of the intended effect.  It’s publicized the Einhorn proposal like nothing else ever has.  It makes management look weak.  And it makes AAPL look like it has something to hide.  (My candidates:  the small amount of cash flow generated in the US; the dilutive effect of management stock options, which are obscured by stock buybacks out of US-held cash.)

what would I do?

I’m not a current holder–to my regret, although I did buy AAPL for my clients (including me) in 2004.  But if I were, I’d back Einhorn.

David Einhorn and Apple (AAPL)

It’s been a long day and I’ve gotten off to a late start.

the proposal

Hedge fund manager David Einhorn, who owns on behalf of his clients (so the internet tells me) over a million AAPL shares, has proposed to the company that it issue a perpetual (meaning it never comes due, and is therefore never redeemed) preferred stock with a total face value of $50 billion, paying a dividend of $2 per year.  The stock would be distributed for free to existing AAPL shareholders.

He’s apparently been discussing this idea with AAPL management since last May.

The proposal is a clever, novel twist on a finance truism   …namely, that if a security is a composite of disparate elements, like growth businesses and value ones, separating the two will increase the valuation of each.

The idea is that if a firm is composed of, say, mobile semiconductor design and cement mixing, growth investors will love the first and hate the second.  The opposite with value investors.  So either group will demand payment, in the form of a lower price earnings multiple, for being forced to take the part they don’t like or want.  Therefore, if you split the two parts up, the multiple on both will rise.

In the AAPL case, the potential split is between a security with earnings growth potential and one solely dependent on income/cash flow generation.

AAPL’s reaction to Einhorn

AAPL’s reaction has been to ask shareholders to vote at the next general meeting to change the company charter to explicitly ban the kind of preferred Einhorn wants.


Einhorn’s reaction to that has been to sue, to seek publicity and to take his own case to shareholders.

my take

The story is nowhere as simple as this.  There’s lots of stuff going on behind the scenes.  Details tomorrow.

Apple(AAPL)’s 1Q13 earnings

the report

After the close yesterday AAPL announced its 1Q13 earnings results (the company’s fiscal year ends in October).  AAPL earned $13.81 per share on revenues of $54.5 billion, both all-time records.  Sales were up 18% year on year, EPS were down by $.06.  EPS exceeded the Wall Street consensus by a little.  Revenues were a tiny bit lower.

Note that 1Q13 had 13 weeks in it, 1Q12 had 14.  On an apples to apples basis, sales would have been up by about 25% and eps would have shown a gain of 10%+, I think.

new guidance

AAPL also announced it was changing the way it would give forward-looking earnings guidance–and provided the first figures using the new method.  Under Steve Jobs, the company gave what inevitably proved ludicrously low single-number suggestions about what its sales, margins and EPS for the following quarter would be.  I’m not positive AAPL intended its “guidance” to be funny, but the process ended up being almost a parody of the way most other companies proceed.  My strong impression is that AAPL knew the figures it suggested were wildly inaccurate.

Under Tim Cook, AAPL has decided to become a bit more conventional.  During the conference call the CFO said that 2Q13 revenue will likely be $41 billion – $43 billion.  Gross margin will be between 37.5% and 38.5%, operating expenses $3.8 billion – $3.9 billion.  Other income will be about $350 million and the tax rate will be around 26%.  Unlike the past, no EPS figure was given.

All that would imply EPS of around $10 for 2Q13–a figure substantially below the brokerage house consensus of $11.50.  Of course, until we have actuals to compare with we won’t know whether the new company guidance protocol is intended to be any more accurate than the old.

Nothing on the call thrilled Wall Street.  As I’m writing this in mid-afternoon, AAPL shares are down about 12% in an otherwise flat market.


The iPhone is fine.  Units were up 29% yoy (30%+, apples to apples), revenues up 28%.   iPhone 5 was capacity constrained for most of the quarter, iPhone 4 for the entire period.  So sales could have been higher.  Despite this, sales were in line with the growth of the smartphone industry. Remember, too, that smartphones are AAPL’s main business, comprising 60% of revenues and more than 2/3 of operating profit.  So this is the business that counts.

two points of weakness

Macs (10% of sales)

AAPL was capacity constrained with new iMacs.  AAPL’s PC unit volume was down 22% yoy (-15% is probably a better apples to apples number), in a market that declined by 6%, however. So having more iMacs on the shelves would have affected the degree of market underperformance, not the fact.   Higher unit selling prices meant that revenue declined by about 10% ata.

iPads (20% of sales)

Units were up 48% yoy (60% ata). That’s good.   But revenues were up only 22% (30%? ata).  That’s bad.

Yoy the average selling price of iPads in total (minis, iPad 2s and the newest models) dropped from $568 in 1Q12 to $467 during 1Q13.  In other words, during the year AAPL saw a massive move away from its flagship tablet offering toward cheaper models.  My back of the envelope guess is that the company sold around 13 million newest model iPads during the 2011 holiday season   …and only about half as many this time around.


A while ago, AAPL decided to move its computer line upmarket.  My guess is that it’s now suffering from a cyclical falloff in demand caused by macroeconomic weakness–and made somewhat worse by the high price points.

The iPad numbers say to me that the tablet market is already quickly evolving away from the original high profit margin format of the original iPad, either toward a $400 price point for corporate/ education use and a $200-$300 price for consumers.  If I’m correct, the tablet market may end up being much bigger than previously thought, but it won’t follow anything like the high profit trajectory of the smartphone.  Note, too, that mini production was capacity constrained during the quarter.  The average unit price might have even been lower if AAPL had been able to satisfy all its potential mini customers.

my take

The tablet numbers are the only disturbing thing I found in the APPL quarterly information.  From what I’ve read, I’m not sure anyone else has noticed, however.  But both in tablets and Macs, AAPL has given the first hints that even it can be subject to business cycle forces.  That’s another way of saying that the company’s peak earnings acceleration phase may be behind it.

From a stock market point of view, however, investors have been discounting the arrival of this day (incorrectly, until now) for a half-decade.  AAPL has $137 billion in cash, about a third of its market capitalization, and no debt.  If we assume the company can earn $50 a share this year, it’s trading a 9x earnings, while growing at a bit less than 15% in weak economic times.  Better economic times should move that growth rate north.  Ex cash, AAPL shares are trading at 6x.  That’s crazy low.

where will the buyers come from?

I’ve read somewhere recently that over 3/4 of all equity mutual funds in the US have AAPL as one of their top few positions.  Equity oriented hedge funds have been up to their ears in the stock for a long time.

Two reasons why:

–it’s been a great stock to own for almost ten years, and

–at its peak, AAPL represented 10% of the IT sector’s market cap and 5% of the S&P 500′s.  Therefore, any professional concerned with outperforming an index would be forced to establish at least a market weighting in the stock in his portfolio, if for no other reason than to protect himself from losing ground to a surging AAPL stock price.

So, who’s left to buy?  No one.

What I’ve just written sounds pretty stupid, but it’s a situation that occurs often in smaller markets where one or two stocks dominate the index.  We just haven’t seen it in the US during my lifetime.

A common strategy in these markets is to neutralize the whales (have a market weighting) and try to achieve outperformance elsewhere. So virtually everyone already owns all the stock he ever intends to own.   The result is that surprisingly small amounts of buying and selling can move the giants a long way.

This may be happening with AAPL.  Certainly, in my opinion, the fundamentals don’t warrant the current low price.  But it’s anyone’s guess how long the current malaise may last.

going ex-growth: the (most times) arduous trip from growth stock to value stock

growth stocks

Growth stock investors are dreamers.  They try to find stocks that will grow faster than the consensus expects, for longer than the consensus expects.

As a good growth stock reports surprisingly good earnings results, the stock price typically rises.  Two causes:

–the stock adjusts up for the better earnings; and

–expectations for future growth rise, leading to price earnings multiple expansion.

If, for example, the stock is trading at 15x expected year-ahead earnings before the report, after the report it may end up trading at 18x the new, higher, level of expected earnings.

At some point, this explosive upward force becomes spent.  The reason may be technological change, or maybe new competition, or maybe the market for the company’s products is completely saturated  (a fuller discussion).  As this happens, the supercharged upward path I’ve just described begins to go into reverse.  The company reports disappointing earnings.  The stock moves downward to reflect new, lower, earnings expectations, and the price earnings multiple contracts.

Today’s question:  how/when does this negative process stop?

It’s important to realize that professional growth stock investors have seen this movie of mayhem and destruction many times before.  They know the plot lines well.  There may initially be some doubt about exactly when the downturn is commencing.  But growth investors know that how they sell a stock is the most crucial determinant of their long-term performance.  So once they become convinced that the salad days are done, they’ll be quick to sell.

The initial buyers will likely be non-professionals who see a decline as a chance to buy a stock they’ve heard about from the financial press or from friends and which appears on the surface to be less expensive than it previously was.   Or they may be members of the growing class of professional traders, many of them associated with hedge funds, who are not particularly interested in company fundamentals, but who buy and sell for short-term profits, either “reading” stock price charts or using their “feel” for the rhythms of the markets to make their decisions.  Eventually both groups also figure out the bloom is off the rose.  In my experience, the traders sell to cut their losses; the non-professionals continue to hang on.

The eventual home for former high-fliers is with value investors, who specialize in companies with flaws where the stock has been beaten down in an excess of negative emotion.  Typically, value investors use computer screens to identify the lowest, say, quintile of the market measured by price/cash flow or price/book value.  That will be the universe they study more closely to make their stock selections.  Many times, these stocks will be in highly business cycle-sensitive industries,  or ones that show little growth.  Companies may be laggards in their industries, either because of poor management or other fixable problems.  Value investors typically say that they buy $1 worth of assets/earnings for $.30 and sell it at $.80.

The point is it usually takes a long period of time, and enormous deterioration of a growth stock’s fundamentals, before the fallen angel sinks low enough to catch the value stock investor’s attention.  Also, like their growth stock counterparts, value investors have industries that they have studied carefully for years and which constitute their comfort zone.  The two areas of familiarity are pretty close to mutually exclusive.  So it may take an extremely cheap price for a value investor to take the risk of buying, say, a tech company instead of a presumably safer–or at least better understood–cement plant, auto parts maker or steel mill.

As I’ve written many times before, the one exception to this pattern that I’ve seen is AAPL, whose price earnings deterioration began five years or more ago (depending on how you count) despite continuing explosive earnings gains.  In fact, at present, AAPL shares are trading at a 25% discount to the market median PE multiple, according to Value Line.  True, there are qualitative signs that AAPL’s growth heyday may already be in the rear view mirror.  But the market’s bad treatment of the stock seems excessive to me.  Price action after the upcoming earnings report will be instructive.


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