Eduard Korsinsky LEVI & KORSINSKY LLP 30 Broad Street...

Case 3:12-cv-07858-PGS-LHG Document 1 Filed 12/27/12 of 19 PageID: 1

Eduard Korsinsky LEVI & KORSINSKY LLP 30 Broad Street, 24 th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

JUSTIN HOLLAND, individually and on behalf of all others similarly situated,

Plaintiff,

v. Civil Action No.

NEW JERSEY RESOURCES CORPORATION, LAURENCE M. DOWNES, LAWRENCE R. CODEY, ROBERT B. EVANS, ALFRED C. KOEPPE, SHARON C. TAYLOR, JANE M. KENNY, DAVID A. TRICE, DONALD L. CORRELL, M. WILLAM HOWARD, JR., J. TERRY STRANGE, and GEORGE R. ZOFFINGER

Defendants,

CLASS ACTION COMPLAINT

JURY TRIAL DEMANDED

Plaintiff, by his attorneys, alleges upon information and belief, except for his own

acts, which are alleged on knowledge, as follows:

1. Plaintiff brings this class action on behalf of the public stockholders of

New Jersey Resources Corporation (“NJR” or the “Company”) against NJR’s Board of

Directors (the “Board” or the “Individual Defendants”) seeking equitable relief in

connection with a false and misleading proxy statement filed by the Board. Additionally,

Plaintiff, individually, brings a claim against defendants for their violations of Section


14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 14a-9

promulgated thereunder (“Rule 14a-9”).

2. On December 12, 2012, NJR filed a Schedule 14(a) Proxy Statement (the

“2013 Proxy”) with the Securities and Exchange Commission (the “SEC”) in connection

with the Company’s 2013 Annual Meeting of Stockholders (the “2013 Annual Meeting”),

which is scheduled for January 23, 2013. In the 2013 Proxy, the Company is soliciting

shareholder proxies for, among other things, the re-election of five directors.

3. The 2013 Proxy, as required, devotes a section to discuss the executive

compensation decisions made by the Board during the Company’s 2012 fiscal year (the

year ended September 30, 2012). As discussed in the 2013 Proxy, performance-based

compensation constitutes a substantial component of the compensation granted to the

Company’s named executive officers.

4. In its discussion, however, the Board falsely represents to the Company’s

shareholders that the Company has a valid plan in place, i.e. the 2007 Stock Award and

Incentive Plan (the “2007 Plan”), pursuant to which the Board, through its Leadership

Development and Compensation Committee (the “LDCC”), can grant tax-deductible

performance-based compensation to the Company’s named executive officers under

§162(m) of the Internal Revenue Code (“§162(m)”).

5. §162(m) provides that executive compensation in excess of $1 million

paid to certain named executive officers will not be tax-deductible unless it qualifies as

“performance-based” compensation and is paid pursuant to a plan that has met the

shareholder approval requirements of §162(m) and its regulations. The 2007 Plan was

2


approved by the Company’s shareholders on January 24, 2007 for purposes of §162(m),

and has been used by the Board to grant tax-deductible performance-based compensation

to the Company’s named executive officers.

6. However, as described in more detail below, in order to preserve the

LDCC’s ability to grant tax-deductible performance-based compensation under §162(m),

the Board was required, pursuant to §162(m) and its regulations, to seek shareholder

reapproval of the 2007 Plan at the Company’s 2012 Annual Meeting (the “2012 Annual

Meeting”), which was held on January 25, 2012. The Board, however, inexplicably

failed to do this, and as a result the LDCC’s ability to grant tax-deductible performance-

based compensation under §162(m) expired on January 25, 2012. Indeed, the decision

not to seek reapproval of the 2007 Plan was a violation of the terms of the 2007 Plan

itself, which required that all provisions of the 2007 Plan would be construed to comport

with the requirements of §162(m). All this information is lacking from the 2013 Proxy,

which to the contrary states that the LDCC still has the ability to grant to tax-deductible

performance-based compensation under §162(m).

7. Plaintiff seeks to enjoin the 2013 Annual Meeting until the Board takes

one of two actions. First, the Board can amend the 2013 Proxy to correct the materially

false and misleading statements and material omissions regarding the LDCC’s ability to

grant tax-deductible performance-based compensation under §162(m), Or Second, the

Board can seek shareholder reapproval of the 2007 Plan (or any other §162(m) compliant

plan) at the upcoming 2013 Annual Meeting so as to regain compliance with 162(m).

PARTIES

3


8. Plaintiff is, and has been since 2000, the owner of shares of common stock

of NJR.

9. NJR is a corporation organized and existing under the laws of the State of

New Jersey. It maintains its principal executive offices at 1415 Wyckoff Road, Wall,

New Jersey 07719. NJR is a Fortune 1000 company that provides safe and reliable

natural gas and renewable energy services, including transportation, distribution and asset

management.

10. Defendant Laurence M. Downes (“Downes”) has been the President and

Chief Executive Officer of the Company since July 1995, and Chairman of the Board

since 1996. Downes is a citizen of New Jersey.

11. Defendant Lawrence R. Codey (“Codey”) has been a director of the

Company since 2000. Codey is a resident of South Carolina.

12. Defendant Robert B. Evans (“Evans”) has been a director of the Company

since 2009. Evans is a member of the LDCC. Evans is a resident of Texas.

13. Defendant Alfred C. Koeppe (“Koeppe”) has been a director of the

Company since 2003. Koeppe is a member of the LDCC. Koeppe is a resident of New

Jersey.

14. Defendant Sharon C. Taylor (“Taylor”) has been a director of the

Company since November 14, 2012. Taylor is a resident of New Jersey.

15. Defendant Jane M. Kenny (“Kenny”) has been a director of the Company

since 2006. Kenny is a member of the LDCC. Kenny is a resident of New Jersey.

4


16. Defendant David A. Trice (“Trice”) has been a director of the Company

since 2004. Trice is the chairman of the LDCC. Trice is a resident of Texas.

17. Defendant Donald L. Correll (“Correll”) has been a director of the

Company since 2008 and is a member of the LDCC. Correll is a resident of New Jersey.

18. Defendant M. William Howard, Jr. (“Howard”) has been a director of the

Company since 2005. Howard is a member of the LDCC. Howard is a resident of New

Jersey.

19. Defendant J. Terry Strange (“Strange”) has been a director of the

Company since 2003. Strange is a resident of Texas.

20. Defendant George R. Zoffinger (“Zoffinger”) has been a director of the

Company since 1996. Zoffinger is a resident of Pennsylvania.

21. Defendants referenced in ¶¶ 10 through 20 are collectively referred to as

Individual Defendants and/or the Board.

JURISDICTION AND VENUE

22. This court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal

question jurisdiction), as this Complaint alleges violations of Section 14(a) of the

Exchange Act and Rule 14a-9 promulgated thereunder. This Court also has jurisdiction

over this action pursuant to 28 U.S.C. § 1332 in that Plaintiff and Defendants are citizens

of different states and the matter in controversy exceeds $75,000.00, exclusive of

interests and costs. Plaintiff is a citizen of Alabama and no defendant is a citizen of

Alabama.

5


23. This action is not a collusive one to confer jurisdiction on a court of the

United States which it would not otherwise have.

24. Venue is proper in this district because defendant NJR is incorporated and

headquartered in this district.

FURTHER SUBSTANTIVE ALLEGATIONS

NJR’s Executive Compensation Programs

25. As discussed in the 2013 Proxy, NJR’s compensation philosophy is guided

by the principle of “pay-for-performance.” The LDCC attempts to design NJR’s

compensation programs in a manner that “links compensation of [NJR’s] executive

officers with the value created for [NJR’s] shareholders.” Accordingly, a substantial

component of the compensation granted to NJR’s executive officers is contingent on the

achievement of performance goals.

26. In particular, in addition to their annual base salary, NJR’s named

executives are eligible to receive an annual cash bonus based on the achievement of

annual performance goals related to net financial earnings, individual leadership, and

their commitment to stakeholders. For example, NJR’s CEO, defendant Downes,

received annual cash bonuses of $846,000 and $800,000 upon his achievement of

established performance goals for fiscal years 2011 and 2012, respectively.

27. In addition to annual cash bonuses, the LDCC also grants the Company’s

named executive officers long-term equity incentive awards based on the achievement of

long-term performance goals. For example, during the 2012 fiscal year, the LDCC

granted Downes performance share awards (with a grant date fair value of $649,816

6


assuming the highest level of performance) whose vesting is contingent upon NJR’s net

financial earnings growth through 2014. During the 2012 fiscal year, the LDCC granted

Downes performance share awards (with a grant date fair value of $ 1,585,316 assuming

the highest level of performance) whose vesting is contingent upon NJR’s total

shareholder return through 2013.

§162(m) of the Internal Revenue Code

28. The Internal Revenue Code (“IRC”), through §162(m), subjects publicly

held corporations, such as NJR, to special restrictions concerning the compensation paid

to a “Covered Employee.” A Covered Employee consists of the company’s CEO and the

other three most highly compensated executives of the Company, not including a

company’s Chief Financial Officer.

29. §162(m) generally disallows tax deductions for compensation paid to a

Covered Employee in excess of $1 million.

30. The $1 million deduction limit was enacted by Congress to prevent

excessive compensation. As the Joint Committee of Taxation said, “The $1 million

deduction limitation reflects corporate governance issues regarding excessive

compensation, rather than issues of tax policy.” Joint Committee on Taxation, Report of

Investigation of Enron Corporation and Related Entities Regarding Federal Tax and

Compensation Issued and Policy Recommendations, 2003 WL 25599037 n.2211 and

accompanying text (2003).

31. However, §162(m) and its accompanying regulations provide an exception

to the $1 million deduction limit in the case of compensation that meets certain

7


conditions to qualify as “performance-based” and is paid pursuant to a plan that has

received prior shareholder approval. In such a case, the performance-based

compensation will be tax-deductible even if the executive’s total compensation exceeds

$1 million.

32. §162(m) and its accompanying regulations is of obvious importance to

NJR. For example, pursuant to the Summary Compensation Table in the 2013 Proxy,

CEO Downes’ total compensation was $2,277,172, $3,402,677, and $3,401,359 for the

2010, 2011, and 2012 fiscal years respectively. Accordingly, by structuring the

performance-based annual cash bonuses and long-term equity incentive awards in a

manner that complies with §162(m), the Company would save itself from substantial tax

liability.

33. However, as described below, due to the Board’s failure to follow one of

the most basic requirements of §162(m) and its accompanying regulations, as of January

25, 2012, the Company no longer has a valid shareholder-approved plan in place pursuant

to which it could grant tax-deductible performance-based compensation.

The Shareholder-Approval Requirements of §162(m) and its Accompanying Regulations

34. One of the most basic requirements that must be met for compensation to

be tax deductible under §162(m) is that the performance based compensation be paid

pursuant to a plan that a) discloses the material terms under which the performance-based

compensation is to be paid; and b) has received shareholder approval before the payment

of such compensation.

8


35. Specifically, pursuant to §162(m)(4)(C), performance-based compensation

is tax deductible if three conditions are satisfied, including that the “material terms under

which the [compensation] is to be paid, including the performance goals, are disclosed to

shareholders and approved by a majority of the vote in a separate shareholder vote before

the payment of such [compensation].”

36. Pursuant to §1.162-27(e)(4)(i) of the Treasury Regulations, which

elaborate on §162(m)’s shareholder-approval requirements, the “material terms” that

must be disclosed to and approved by shareholders “include the employees eligible to

receive compensation; a description of the business criteria on which the performance

goal is based; and either the maximum amount of compensation that could be paid to any

employee or the formula used to calculate the amount of compensation to be paid to the

employee if the performance goal is attained (except that, in the case of a formula based,

in whole or in part, on a percentage of salary or base pay, the maximum dollar amount of

compensation that could be paid to the employee must be disclosed).”

37. Further, §1.162-27(e)(4)(vi) of the Treasury Regulations, titled

“Frequency of Disclosure” states that if a company’s compensation committee “has

authority to change the targets under a performance goal after shareholder approval of the

goal, material terms of the performance goal must be disclosed to and reapproved by

shareholders no later than the first shareholder meeting that occurs in the fifth year

following the year in which shareholders previously approved the performance goal.”

(Emphasis Added).

The Board Adopts and Receives Shareholder Approval of the 2007 Plan to Comply with §162(m)

9


38. On November 15, 2006, NJR’s Board of Directors adopted the 2007 Plan,

which authorized a broad range of awards that the LDCC may award to the Company’s

executive officers, including stock options, stock appreciation rights, restricted stock,

performance shares or other stock-based performance awards, and cash-based

performance awards.

39. On December 20, 2006, NJR’s Board of Directors filed a proxy statement

(the “2007 Proxy”) in connection with NJR’s 2007 Annual Meeting, which was

scheduled for January 24, 2007.

40. At the 2007 Annual Meeting, NJR’s Board sought, among other things,

shareholder approval of the 2007 Plan. The 2007 Plan, as required by §162(m), disclosed

the material terms of the performance goals that would be used when granting

performance-based compensation to NJR’s Covered Employees. In the 2007 Proxy,

NJR’s Board of Directors emphasized the importance of shareholder approval of the 2007

Plan (along with the material terms) so that the LDCC would have the ability to grant

awards that were tax-deductible under §162(m). Specifically, the 2007 Proxy stated:

Reasons for Shareholder Approval

The Board seeks approval of the 2007 Plan by shareholders in order to meet requirements of the New York Stock Exchange (the “NYSE”) and to satisfy requirements of tax law to help preserve the Company’s ability to claim tax deductions for compensation to executive officers . In addition, the Board regards shareholder approval of the 2007 Plan as desirable and consistent with corporate governance best practices.

Section 162(m) of the Code limits the deductions a publicly held company can claim for compensation in excess of $1 million in a given year paid to the Chief Executive Officer and the four other most highly compensated executive officers serving on the last day of the fiscal year

10


(generally referred to as the “named executive officers”). “Performance-based” compensation that meets certain requirements is not counted against the $1 million deductibility cap, and therefore remains fully deductible. For purposes of Section 162(m), approval of the 2007 Plan will be deemed to include approval of the general business criteria upon which performance objectives for awards are based , described below under the caption “Performance-Based Awards. ”

Emphasis Added.

41. Relying on this, NJR’s shareholders approved the 2007 Plan on January

24, 2007.

42. Following shareholder approval, the LDCC used the 2007 Plan each year

to grant tax-deductible performance-based compensation to the Company’s named

executive officers.

43. However, because the 2007 Plan did not disclose the specific target levels

of performance, but rather allowed the LDCC to select different performance targets from

year to year, the “shareholder-approved” status for purposes of §162(m) was only valid

for five years pursuant to §1.162-27(e)(4)(vi). Indeed, in the 2007 Proxy, the Company

acknowledged as such: “Shareholder approval of general business criteria, without

specific targeted levels of performance, will permit qualification of incentive awards for

full tax deductibility for a period of five years under Section 162(m).”

The Board Allows the 2007 Plan’s “Shareholder-Approved” Status for Purposes of §162(m) to Expire

44. On December 14, 2011, the Board (which included 10 of the 11 current

Board members) filed a Schedule 14(a) Proxy Statement (the “2012 Proxy) in connection

with the Company’s 2012 Annual Meeting (the “2012 Annual Meeting”), which was

scheduled for January 25, 2012.

11


45. As discussed above, in order to continue to preserve its ability to grant tax-

deductible performance-based compensation under the 2007 Plan, the Board was required

to seek shareholder reapproval of the 2007 Plan at the very latest by the 2012 Annual

Meeting. The Board, however, failed to do this.

46. Accordingly, as of January 25, 2012, the “shareholder-approved” status of

the 2007 Plan for purposes of §162(m) expired.

47. The Board’s decision not to seek shareholder reapproval of the 2007 Plan

violated the both the objectives and the provisions of the 2007 Plan itself. Specifically,

as discussed above, when the NJR Board of Directors adopted and sought shareholder

approval of the 2007 Plan in 2007, one of the main objectives was to provide the LDCC

with the ability to grant tax-deductible compensation that was compliant with §162(m).

Recognizing this objective, section 11(j) of the 2007 Plan, title “Compliance with Code

Section 162(m)” required that the provisions in the 2007 Plan always be construed in a

manner that comports with the requirements of §162(m). Section 11(j) states in relevant

part:

.... If any provision of the Plan or any Award document relating to a Performance Award that is designated as intended to comply with Code Section 162(m) does not comply or is inconsistent with the requirements of Code Section 162(m) or regulations thereunder, such provision shall be construed or deemed amended to the extent necessary to conform to such requirements , and no provision shall be deemed to confer upon the Committee or any other person discretion to increase the amount of compensation otherwise payable in connection with any such Award upon attainment of the applicable performance objectives.

Emphasis Added.

12


Thus, by failing to seek shareholder approval of the 2007 Plan, the entire 2007 Plan itself,

let alone any specific provision, will no longer comport with the requirements of

§162(m), in violation of both the objectives and provisions of the 2007 Plan.

48. Because the Company has no other shareholder-approved plan in place

that is compliant with §162(m), as of January 25, 2012, the LDCC is unable to grant

performance-based awards that will qualify as tax-deductible performance-based

compensation under §162(m).

The 2013 Proxy is False and Misleading and Contains Material Omissions

49. On December 12, 2012, the Company filed the 2013 Proxy with the SEC

in connection with the 2013 Annual Meeting, which is scheduled for January 23, 2013.

In the 2013 Proxy, the Company is soliciting shareholder proxies for, among other things

the re-election of defendants Downes, Codey, Evans, Koeppe, and Taylor to the Board

for another three year term.

50. The 2013 Proxy is materially false and misleading. First , the 2013 Proxy

falsely represents to shareholders that the Company has designed its compensation

programs in a way that allows the LDCC, if the LDCC so chooses, to grant tax-

deductible performance-based compensation under §162(m).

51. Specifically, in a section titled “United States Federal Income Tax Limits

on Deductibility,” the 2013 Proxy states that the LDCC has relied on, and intends to

continue to rely, performance-based compensation programs for annual cash bonus

awards and long-term equity incentive awards. The 2013 Proxy then represents that the

13


LDCC aims to design these programs in a way that allows the award granted thereunder

to be tax-deductible under §162(m). As stated in the 2013 Proxy:

United States Federal Income Tax Limits on Deductibility Section 162(m) of the Internal Revenue Code provides that executive compensation in excess of $1 million to an individual officer will not be deductible for purposes of corporate income tax unless it is performance-based compensation and is paid pursuant to a plan meeting certain requirements of the Internal Revenue Code. The LDCC has relied on, and intends to continue to rely on, performance-based compensation programs for annual cash bonus awards and long-term equity incentive awards. The LDCC seeks to fulfill corporate business objectives through such programs. The LDCC currently anticipates that, to the extent practicable and in our best interest, such programs will be designed to satisfy the requirements of Section 162(m) with respect to the deductibility of compensation paid. The LDCC recognizes, however, that there may be business considerations that dictate that compensation is paid that is not deductible under Section 162(m).

This is false and misleading because, as described above, by failing to seek reapproval of

the 2007 Plan at the 2012 Annual Meeting, the LDCC is no longer able to grant tax-

deductible performance-based awards under §162(m).

52. The Company’s inability to grant tax-deductible performance-based

compensation (which represents a substantial component of NJR’s executive

compensation) is material information that needs to be disclosed candidly to

shareholders. Indeed, 17 C.F.R. §229.402(b)(2), which lists examples of material

information that should be included in a proxy statement that seeks an election of

directors, lists as an example: “(xii) The impact of the accounting and tax treatments of

the particular form of compensation.”

53. Second, the 2013 Proxy contains no information whatsoever regarding the

Board’s decision not to seek reapproval of the 2007 Plan at the 2012 Annual Meeting.

14


When NJR’s Board of Directors sought shareholder approval of the 2007 Plan at the 2007

Annual Meeting, the Board was able to procure shareholder approval by emphasizing,

among other things, the necessity of approval to enable the LDCC to grant tax-deductible

awards under §162(m). And, as described above, the objectives and provisions of the

2007 Plan itself contemplated that it be construed in a manner that would allow the

LDCC to grant tax-deductible awards under it. Certainly, the Board’s decision (and the

reasons underlying the decision) to allow the shareholder-approved status of the 2007

Plan for purposes of §162(m) to expire, in violation of both the objectives and provisions

of the 2007 Plan itself, is a material omission that needs to be disclosed in the 2013

Proxy.

54. Disclosure is all the more important considering that even though the

“shareholder-approved” status for purposes of §162(m) expired on January 25, 2012, the

Board continues to use (and will likely continue to use in the years to come) the 2007

Plan as the main source of performance-based equity awards to the Company’s named

executive officers.

55. Accordingly, by issuing the false and misleading 2013 Proxy, the Board

breached their fiduciary duties to the Company’s stockholders and violated Section 14(a)

of the Exchange Act.

56. As a result, Plaintiff seeks to enjoin the upcoming election of directors

Downes, Codey, Evans, Koeppe, and Taylor which is scheduled to occur at 2013 Annual

Meeting until the Board amends the 2013 Proxy to remedy the materially false and

misleading statements and material omissions described above. Alternatively, the Board

15


can seek shareholder reapproval of the 2007 Plan (or any other §162(m) compliant plan)

at the upcoming 2013 Annual Meeting so as to regain compliance with §162(m).

CLASS ACTION ALLEGATIONS

57. Plaintiff brings this action as a class action pursuant to the Federal Rules

of Civil Procedure, Rule 23 on behalf of owners of NJR common stock as of November

27, 2012, the record date for the determination of shareholders entitled to vote at the 2013

Annual Meeting (the “Class”). Excluded from the Class are Defendants and their

affiliates, immediate families, legal representatives, heirs, successors or assigns and any

entity in which Defendants have or had a controlling interest.

58. The Class is so numerous that joinder of all members is impracticable.

While the exact number of Class members is unknown to Plaintiff at this time and can

only be ascertained through discovery, Plaintiff believes that there are thousands of

members in the Class. According to the 2013 Proxy, as of November 27, 2012, over 41

million shares of common stock were represented by the Company as outstanding. All

members of the Class may be identified from records maintained by NJR or its transfer

agent and may be notified of the pendency of this action by mail, using forms of notice

similar to that customarily used in securities class actions.

59. Questions of law and fact are common to the Class, including, inter alia,

the following:

(i) Have the Individual Defendants breached their fiduciary

duties by filing the false and misleading proxy; and

16


(ii) Whether plaintiff and the other members of the Class

would be irreparably harmed if the 2013 Annual Meeting

was held without any of the corrective action described

herein.

60. Plaintiff’s claims are typical of the claims of the other members of the

Class. Plaintiff is committed to prosecuting this action, will fairly and adequately protect

the interests of the Class, and has no interests contrary to or in conflict with those of the

Class that Plaintiff seeks to represent.

61. The prosecution of separate actions by individual members of the Class

would create the risk of inconsistent or varying adjudications for individual members of

the Class and of establishing incompatible standards of conduct for the party opposing

the Class.

62. Conflicting adjudications for individual members of the Class might as a

practical matter be dispositive of the interests of the other members not parties to the

adjudications or substantially impair or impede their ability to protect their interests.

63. Defendants have acted on grounds generally applicable to the class,

making appropriate final injunctive relief with respect to the Class as a whole.

CLAIMS FOR RELIEF

COUNT I Breach of Fiduciary Duties

(Against All Individual Defendants)

64. Plaintiff repeats all previous allegations as if set forth in full herein.

17


65. The fiduciary duties of the Individual Defendants require them to be

candid with the Company’s shareholders and disclose all information material to the

decisions confronting NJR’s shareholders at the 2013 Annual Meeting.

66. As set forth above, the Individual Defendants have breached their

fiduciary duty by filing the materially false and misleading 2013 Proxy.

67. As a result, Plaintiff and the Class members are being harmed irreparably.

68. Plaintiff and the Class have no adequate remedy at law.

COUNT II

Violations of Section 14(a) of the Exchange Act and Rule 14a-9 Promulgated Thereunder (Individual Claim Against All Defendants)

69. Plaintiff repeats all previous allegations as if set forth in full herein.

70. Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the

Exchange Act provides that a proxy statement shall not contain “any statement which, at

the time and in the light of the circumstances under which it is made, is false or

misleading with respect to any material fact, or which omits to state any material fact

necessary in order to make the statements therein not false or misleading.” 17 C.F.R.

§240.14a-9.

71. Defendants have issued the 2013 Proxy. The 2013 Proxy violates Section

14(a) and Rule 14a-9 because, as described above, it contains false and misleading

statements.

72. The misrepresentations and omissions in the 2013 Proxy are material to

Plaintiff, and Plaintiff will be deprived of his entitlement to cast a fully informed vote if

18


such misrepresentations and omissions are not corrected prior to the 2013 Annual

Meeting.

WHEREFORE , Plaintiff demands judgment against defendants jointly and

severally, as follows:

(A) declaring this action to be a class action and certifying Plaintiff as

the Class representatives and his counsel as Class counsel;

(B) enjoining, preliminarily and permanently, the 2013 Annual

Meeting unless, and until, the corrective action described above is taken;

(C) awarding Plaintiff the costs of this action, including a reasonable

allowance for the fees and expenses of Plaintiff’s attorneys and experts; and

(D) granting Plaintiff and the other members of the Class such further

relief as the Court deems just and proper.

JURY DEMAND

Plaintiff hereby demands a trial by jury on all claims so triable in this action.

Dated: December 26, 2012 LEVI & KORSINSKY LLP

s/ Eduard Korsinsky________ EDUARD KORSINSKY

30 Broad Street, 24 th Floor New York, New York 10004 Tel: (212) 363-7500 Fax: (212) 363-7171

Attorneys for Plaintiff

19

Eduard Korsinsky LEVI & KORSINSKY LLP 30 Broad Street...

Documents

Transcript of Eduard Korsinsky LEVI & KORSINSKY LLP 30 Broad Street...