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As I understand it the sentnece from the bylaws in question is the following:
"Section 2.
----------- -----------------------------------------------------------
prescribed by statute or by the Certificate of incorporation,
------------
may be called by the Chairman of the Board or the President and shall be called
by the President or Secretary at the request in writing of a majority of the
Board of Directors."
It has been a while since I have taken my class on the rules of interpretation but this sentence breaks down into two parts; the first part is who has the authority or requirement to act and the second part sets the prerequisite for the action.
Part one is who may act: The Chairman "may" (authority) and the President or Secretary "shall" (obligation). Part two sets the prerequisite for the action; "at the request in writing of the majority of the Board of Directors".
Some people assume that the first part of the sentence is a stand alone authority. If it were there would be no reason for the second part of the sentence and so the rules of interpretation say, if it was added it is there for a reason. That reason is to set the prerequisite for the authority or obligation to call the special meeting.
Think of it like this; A police officer has the right to enter a private residence to search for and seize evidence of a crime where probably cause exists. If you only use the first part of the sentence then the police can search your home without any provocation. But they cannot. The second part of the sentence sets the prerequisite for the action; probable cause.
So, unless there was a request in writing by at least three board members, as I read it, this sentence cannot provide the authority for the special meeting.
Show me in the law where it will require audited financials and then show me where you get your estimate of that cost comes from. The last time a management mouthpiece gave a price it was $300,000.
As I would read it, the "may" or the "shall" are both only after the prerequisite "at the request in writing of the majority of the Broad of Directors". As I read it, it requires the request, in writing, of the majority of the board, before the meeting could be called. There is no special provision for not taking into account the vote of the director in question, so it would still require a request, in writing, by three of the members of the board. I am not sure if Delaware law supersedes my best guess on what this phrase means.
I am sorry, I did not fully respond to you're post. Securing the patent is done. The board voted on, and approved, the settlement. that is no longer in issue.
I agree with you on the contingency attorney for T-Mobile... and ONLY AFTER that point do you hire anyone.
So, if you are looking to go Mano-e-mano with T-Mobile who do you want deciding the game plan. A litigious A$$hole, or ...?
Clearly, based on your post, the only thing management needs to be doing is working on SEC compliance to get us off the greys. Tell me, how has current management stack up against that standard?
So, are you saying that the majority of the board, in writing, asked the president to call this special meeting?
Depends on what they are suing over. If they are suing over illegal or ultra vires actions of management, then I think the SEC will say "wow, someone is doing our job for us!"
Management's actions brought this about. Williams has been reacting, not initiating, to the improper actions of management. Who files the suit in California... not Williams. He was forced to respond. Hence the sale of shares, to be able to pay the attorney's fees brought about by Management's improper actions.
That is your opinion. I do not agree.
And either way, what little money we did have from the private placement ($85,000) clearly did not go to fix our SEC problems. Only to create new ones ... and to cost the company (read shareholders, I did not see Kyle or Christian contributing anything) more money for their failed attempts at gaining control of the company.
Can you say "Breach of fiduciary duty"?
I did notice that the PR brought a huge surge in share price
Clearly the result of the faith the markets have in management ... or the fact that we are still on the greys.
I am not sure this is an election of directors. Actually, I am still a little confused as to what the standard will be for this vote.
I would disagree that that company needs to bring anyone on board until they can pay for them. The game plan is simple and does not even require management. Hire a contingency lawyer to go after T-Mobile. Get them to buckle. Use that money to hire REAL experts, and then move forward. All we need right now is someone to get us off the greys and management clearly is not working on that issue...
What you want right now is a litigious A$$hole, not someone with a track record of either failing to show up in court or negotiating away 80% of the world. With that record they would negotiate a settlement with T-Moble for less than $5M, and all of that would go for management back-pay.
Reality is that Williams is a check on management mismanagement. Management must be removed,not Williams if you want to move forward.
Management is the liar. At this point I have seen no evidence that Dave has lied about anything. If you have some please post it.
Management did this backwards. The first announcement was not of a material definitive agreement because it was not enforceable. From that 8K:
"The settlement is subject to finalization of a formal settlement agreement"
A PR would work for that announcement.
However, this latest PR should have been in an 8K because it meets the definition of a material definitive agreement.
"We received substantial comment on this item at the proposing stage. In particular, many commenters opposed our proposal to require disclosure of letters of intent and other non-binding agreements in addition to disclosure of definitive agreements that are material to the company.35 They noted that disclosure of non-binding agreements could cause significant competitive harm to the company and create excessive speculation in the market.36 Several companies also stated that they use letters of intent extensively, but that few such letters culminate in a completed transaction.37
In response to the commenters, we eliminated the requirement that companies disclose their entry into non-binding agreements from this item.38 We have further replaced the proposed definition of "agreement" with a definition of "material definitive agreement" and have moved this definition from a proposed instruction into Item 1.01(b). We have clarified that only agreements which provide for obligations that are material to and enforceable against a company, or rights that are material to the company and enforceable by the company against one or more other parties to the agreement by the company, are required to be disclosed pursuant to Item 1.01, regardless of whether the material definitive agreement is enforceable subject to stated conditions."
http://www.sec.gov/rules/final/33-8400.htm#seciic
However, on a further reading I must make something clear. Filing the actual documents with the 8K are not necessary as long as they will be filed with the next periodic (quarterly) report. However, since management is not in the habit of filing those reports I would submit that they need to file the documents with the 8K.
"In response to these comments, we have eliminated the proposed requirement to file the material agreement as a Form 8-K exhibit. Prior to these amendments, material agreements did not need to be filed until the company's next periodic report as there was no Form 8-K item requiring disclosure of the event. Thus, the amendments do not change current requirements with regard to filing material agreements as exhibits, not do they affect the process for requesting confidential treatment of terms of those agreements. Given the initial disclosure of the agreement and its material terms, delayed filing of the exhibit should have minimal effect on the utility of the Item 1.01 disclosure. Pursuant to amended Item 601 of Regulation S-K, a company will have to file such agreement as an exhibit to the company's next periodic report or registration statement.43 However, we encourage companies to file the exhibit with the Form 8-K when feasible, particularly when no confidential treatment is requested."
Because this 8K is not an announcement of a finalized settlement -- it is not a definitive agreement.
"Section 1 -- Registrant's Business and Operations
Item 1.01 Entry into a Material Definitive Agreement"
http://www.sec.gov/answers/form8k.htm
In addition, the agreement must be filed with the 8K
From the definition of a material definitive agreement:
"We have clarified that only agreements which provide for obligations that are material to and enforceable against a company, or rights that are material to the company and enforceable by the company against one or more other parties to the agreement by the company, are required to be disclosed pursuant to Item 1.01, regardless of whether the material definitive agreement is enforceable subject to stated conditions."
http://www.sec.gov/rules/final/33-8400.htm
So, it is not a material definitive agreement until it is enforceable. An agreement to agree, under contract law, is not enforceable.
"In any event, the registrant must file the agreement as an exhibit to the periodic report relating to the reporting period in which the agreement became material if, at any time during that period, the agreement was material to the registrant."
http://www.sec.gov/divisions/corpfin/form8kfaq.htm
So, the agreement must be attached to whatever 8K actually announces the agreement. (ok, it can be attached to the next quarterly report ... but management hasn't filed one of those since...)
Will that include a release of Diac's security interest?
Tell me something Carlos, in your long conversation with Kyle at the shareholder's forum did she ever mention that she used the attorney that the company claimed was hired for SEC compliance to file a ill conceived California case that they lost days before the forum or that the same attorney advised them not to hold the forum?
It is not always what is said that matters. You can lie by omission as well.
An 8K is Proof that the settlement exists along with a copy of the settlement (unless the court orders it sealed). At a minimum it needs to be filed with the court before we lose this case by default the way Turrini lost the first case with Diac. (I know, I know, management is exempt from the law)
Now we are back to building the illusion of value based on announcements rather than solid proof.
What is in the settlement that management does not want it released? What other side deals are in there that are not supposed to be? Who else profited from this who were not parties to the litigation?
Yes, I am speculating ... but it is not like management has a stellar record of being honest to the shareholders or including all the relevant facts.
There is nothing new here. A PR on a settlement that had already been agreed on is not a victory. Management is still acted in an incompetent and potentially illegal manner.
Management put us on the greys by not doing the the proper filings and kept us there by wasting our money on a frivolous suet when they should have been doing SEC filings.
They praise an attorney -Storm - whose actions at the shareholder forum border on malpractice.
They hold a shareholder forum, disregarding the advice of their own lawyers, that where they say nothing and effectively reduce the share price by fifty percent.
And now, because they announce something that we all suspected was already done (since Turrini already claimed the settlement was executed), all is supposed to be forgiven?
I think not.
And this is just in the last six months. If we go back further we have Baxter patent debacle and the Acacia deal that was bragged on but was never completed. Come to think of it, in five years management has never managed to get a deal, period.
The Baxter patent deal got Turrini fired and I suspect, if the truth were revealed, has the potential of landing him in jail.
But they did manage to almost lose the patent.
No, this PR is meaningless.
What I would really like to see is Diac's liens and claims of ownership removed from the patents at the USPTO.
You make a lot of assumptions. Just because a court denies a motion does not mean that something was legal or illegal. If the court had no jurisdiction it will deny the motion.
Oh, there is plenty to complain about with the management of this company. I really don't see surrendering 80% of the patent as a victory and there are still the questions about Turrini's activities as well as the question about whether this action was ultra vires or if he was just lying about the deadlock.
But I am waiting for actions, not words.
Has the alleged settlement been filed with the state court? Has Diac removed his lien on our patent that he filed with the patent office.
I will hold my enthusiasm until I see some evidence.
If it is for real there will be an 8K filed with the settlement attached.
It looks like the request was for a hearing on four separate actions. 1. a preliminary injunction; or 2. a show cause and temporary restraining order; or 3. an order shortening the time or a hearing on a preliminary injunction or temporary restraining order; or 4. for appointment of a provisional director.
If I had to guess, it was a motion to stop the vote or, in the alternative, appoint a provisional director.
It is an odd motion because Williams complaint in regards to the exparte motion filed by management was that the court really does not have jurisdiction. He could not have seriously believed that a California court was going to stop the vote. California would probably tell him the proper court is in Delaware (and maybe Texas on the outside). I would think he knows this so I am not sure what he was really trying to do. If he was serious he would have filed in Delaware.
Without reading everything it is hard to gauge what this was really all about. I get the feeling it was a necessary evil to foreclose the company from trying to backtrack to California after the vote but I really am just guessing. And if the play was a tactical move I won't even be able to tell what the game plan is until the next set of filings.
Without knowing what the motion was about it is difficult to gauge whether this was an important action or simply something procedural.
Translation " no, I have no documentation".
Kyle kept us on the greys. That is clearly in Kyle's bin of things accomplished for the company. According to the records, including the 8K, she hired "the law firm of Buchalter Nemer, to advise the Company’s Board of Directors and executive management on strategic planning issues, SEC reporting and other corporate and regulatory compliance matters". She made the decision to use Buchalter Nemer to file the action in California rather than use them for any SEC regulatory compliance that would have help get us off the greys. An action that was so bogus and ill conceived that they refused to work with us any longer.
Turrini may have gotten us on the greys with the fraudulent deadlocked board but Kyle kept us there by not using the attorneys she hired for what management reported to us that they would be used for. She wasted our money. She owns keeping us on the greys completely.
Vote must not be going well. I wonder if they will try to pull the plug on it.
Turrini has been with them since 2005. From a form FORM 10-QSB dated 9-30-2006; the same one that announced Turrini's appointment as CEO.
"Mr. Turrini joined Calypso in September, 2005 as Vice President and has been active in pursuing licensing contracts. Mr. Turrini was assistant director of Latin America legal affairs, for De La Peña & Associates, P.A., Miami, Florida where he was iinvolved in business development in Latin America; negotiations of potential corporate partnerships; acquisitions and customer contracts with clients in Latin America and Spain. He also drafted numerous contracts for domestic and international transactions and negotiated contracts on behalf of clients, especially in the area of telecommunications. He previously served with Grupo Sette and was involved in the privatization of State Own Enterprises such as the telephone company; assisted government with telecommunications regulations and assisted with foreign investments, business developments and international corporate transactions."
A salesman in the fall of 2005 by March 1, 2007, at age 34, the CEO of the whole company. A real mover and shaker.
He has been with the company for almost six years and has made, um, I think about, zero deals.
And yes, I am sure that if there was any evidence of where that money went it was because Mr. Williams not only saved the documents but spent hours of his own time organizing them into something that could be reproduced and cataloged. Things that should have been done by the CEO.
Wow, we have $36 Million. So when are we suing Mendoza and Dotson to get it back? If we have the audits then we should have all the proof that we need.
But, wasn't Turrini our legal council back then? You mean it all predates Mr. Williams, not Turrini. Wasn't it part of Turrini's job back then to make sure this stuff didn't happen.
The law does not apply to management ... at least not according to their advocates.
If it has been executed then the last PR was false and management is holding it hostage to scar people into voting their way.
Ok, so he offered his services as a member of the board. Again, what is illegal about him expressing his opinion about the vote? Or is it only illegal for people to express their opinion if it is against management ... and why is it OK for you to make veiled threats to take legal action against him for speaking up?
Heck, if Dave signed on here, identified himself as Dave, and siad "don't vote to remove me", how would that be illegal?
Why is it that management feels they do not need to obey the laws but if anyone says anything against them it is breaking the law.
"trying to use this message board to persuade people to vote a certain way; which is in itself Illegal" Wow, I believe that constitutes a threat.
Please explain to me what law is violated when a private shareholder attempts to convince other shareholders to vote one way or another, because I am pretty certain by your posts you have violated it.
Of course, if you are part of management or related to, or an agent of, management, then you cannot possibly have done anything wrong and are exempt from all laws and SEC regulations.