Rodgers said, "Cypress directors have a legally mandated 'Duty of Candor' to make complete disclosures to Cypress stockholders on the issues in this election, including why they are allowing Ray Bingham to serve as executive chairman while he has violated and is continuing to violate numerous provisions of Cypress's Code of Business Conduct and Ethics. This second lawsuit seeks to ensure that Cypress stockholders have the information they need to cast an informed vote at the upcoming June 8, 2017 Annual Meeting."
Bingham's Employment by a Cypress Competitor Is a Serious, Ongoing Conflict of Interest
While simultaneously serving as Cypress executive chairman, Mr. Bingham is also actively working as a "Founding Partner" of Canyon Bridge, a private equity firm backed by the People's Republic of China that now competes head-on with Cypress in the critical semiconductor M&A market. The Cypress Board has asserted in the Company's proxy statement that Mr. Bingham's simultaneous executive leadership roles at Canyon Bridge and Cypress do not constitute a conflict of interest under the Cypress Business Conduct and Code of Ethics and thus claims that Rodgers's assertions are "unfounded and have no basis."
Rodgers said, "I believe that by making this assertion in an important legal document distributed to stockholders, the Cypress Board of Directors has deliberately chosen to ignore our first, successful lawsuit to obtain Cypress documents and thus solicited Cypress stockholders using material misstatements and omissions including the failure to disclose critical legal findings made by the Delaware Court of Chancery. In particular the Court stated:
"The dual hats Bingham wears suggest that his interests with respect to Canyon Bridge may well conflict with the business interests of Cypress," and that a "credible basis" exists "to infer that Bingham violated the Code's prohibition on 'simultaneous employment of any kind without written permission of the Company.'"
Rodgers continued, "Cypress stockholders have a right to accurate and complete information before voting at the annual meeting, yet the Cypress Board continues to ignore its Duty of Candor by misleading stockholders regarding Mr. Bingham's conflicts as well as the Board's own failure to address this serious problem, which it has known about at least since December 9, 2016 when I wrote a private letter describing the problem and urging Board action."
The Cypress Board Also Continues to Defend Ray Bingham's Excessive Compensation, Which – Unlike the Compensation of All Other Cypress Senior Executives – Has No Performance Criteria
In addition to having a clear conflict of interest, Mr. Bingham also has negotiated excessive compensation for his part-time work at the currently unnecessary job of executive chairman. His annual salary plus target bonus is $877,500, and he has been granted a total of $4.5 million in restricted stock units (RSUs). Despite Mr. Bingham's part-time attendance at Cypress, the Cypress Board has kept him on as executive chairman and has very recently awarded him RSUs worth $3 million, which vest over three years, undermining the Board's claim that Mr. Bingham's executive chairman "mentoring" position is "temporary." To make matters worse, in stark contrast to all Cypress executives eligible for the Company's PARS (Performance Accelerated Restricted Stock) program, his RSUs vest without any performance requirements – meaning that Mr. Bingham will receive $4.5 million in compensation for simply remaining at Cypress in a part-time position, while also working for a direct Cypress Chinese-sovereign-backed competitor.
The Cypress Board's Proxy Materials Are Full of Extreme Mischaracterizations and Omissions
These factual errors include both ignoring and misrepresenting various findings of the Delaware Court of Chancery in our first lawsuit. On April 21, 2017, the Delaware Court of Chancery entered an order requiring Cypress to produce documents in response to Rodgers's Section 220 demand to investigate potential breaches of fiduciary duty and violations of Cypress's Code of Business Conduct and Ethics by Ray Bingham and the failures by the Cypress Board to take corrective action. The Court's Post-Trial Opinion, issued on April 17, 2017, held that Rodgers was entitled to all the categories of documents that he sought but which Cypress had refused to produce.
Instead of taking action on its own to address Mr. Bingham's conflict of interest and excessive compensation problems, the Cypress Board has now attempted to deflect stockholders from these critical issues with a wildly inaccurate personal attack on T.J. Rodgers. For example, in its just-published proxy materials, Cypress falsely claims that Rodgers "declared war" on the Company and is "motivated by a personal vendetta." However, in its Post-Trial Opinion on the first lawsuit, the Delaware Court (a) accepted Rodgers's trial testimony, (b) rejected Cypress's assertion that Rodgers's actual purpose is to pursue a personal vendetta against Mr. Bingham, and (c) found that Rodgers has a credible basis to suspect that Bingham may have violated his fiduciary duties and Cypress's Code of Business Conduct and Ethics.
Rodgers stated, "As a major Cypress fan and major stockholder with most of my net worth invested in the Company, I am driven by my belief that these serious wrongdoings, unaddressed by the Cypress Board, are a threat to stockholder value. The Board has a duty to the Cypress stockholders to resolve the executive chairman's obvious conflict of interest and gross overcompensation problems. I have made a standing offer to the Cypress Board that if candidates J. Daniel McCranie and Camillo Martino are seated on the Board under appropriate terms and with appropriate committee positions, despite their being a distinct minority of two among current directors, I would trust in their energy and integrity to resolve these problems – without the need for further litigation or a proxy contest and without the requirement that Mr. Bingham and lead independent director Eric Benhamou leave the Cypress Board. Does this offer sound vendetta-driven to you? The Board is fully aware of my offer, which still stands, yet it has resorted to what I believe are false proxy statements and ad hominem attacks on the nominees and me as a smokescreen to cover for its refusal to address the big problem: Cypress should not be forced to complete against its own executive chairman in the M&A market."
Rodgers's Second Lawsuit Focuses on the Cypress Board's Refusal to Disclose the Truth About Bingham's Work for a Direct Cypress Competitor
Rodgers's claims in the second lawsuit filed today in the Delaware Court of Chancery include specific allegations regarding Cypress's Definitive Proxy Statement and other proxy materials which:
- Fail to describe accurately and completely the timing and scope of Mr. Bingham's activities at Canyon Bridge;
- Fail to mention even one of the seven separate and individually applicable ethical guidelines and procedures that Mr. Bingham violated by founding and acting on behalf of Canyon Bridge—a direct competitor of Cypress in the critical semiconductor M&A market;
- Falsely state that Rodgers's concerns regarding Bingham's irreconcilable conflict of interest are unfounded despite the finding to the contrary by the Delaware Court of Chancery that Rodgers has a credible basis to believe that Mr. Bingham's relationships with Canyon Bridge and Cypress represent a conflict of interest;
- Fail to disclose the Cypress Board's actual factual findings, conclusions, and decisions regarding Mr. Bingham's relationship with Canyon Bridge, Bingham's non-compliance with Cypress' Code of Business Conduct and Ethics, and the potential risks to Cypress resulting from Mr. Bingham's work for a direct competitor of Cypress;
- Fail to disclose what was discussed, what decisions made, and what actions taken as a result of a call between Cypress "lead independent director" Eric Benhamou and an unidentified senior representative of Canyon Bridge (and their respective lawyers) on January 23, 2017 .
