Roy Disney, Stanley Gold Sue The Walt Disney Company, Certain Directors For Fraud, Breach of Duty of Disclosure Regarding Board's Public Statements About Search for Eisner's Replacement As CEO
Suit Asks Court to:
• Void 2005 Election of Directors
• Compel Company to Hold Another Election for Directors After Full Disclosure About CEO Selection Process
• Enjoin Company and Board from Changing Eisner's or Iger's Compensation or Contracts
Burbank, CA - May 9, 2005 -- Roy E. Disney and Stanley P. Gold today filed suit in Delaware Chancery Court against The Walt Disney Company and certain members of the Board of Directors of the Company alleging that the Board made false statements to the Company's shareholders about its CEO search in order to induce shareholders to vote for the incumbent Board at the 2005 meeting and to induce Messrs. Disney and Gold not to run an alternate slate of directors at that meeting.
In addition to The Walt Disney Company, the two former Disney Directors sued Robert A. Iger, Michael D. Eisner, Judith L. Estrin, John S. Chen, Aylwin B. Lewis, Monica C. Lozano, George J. Mitchell and Leo J. O'Donovan, S.J, for fraud and breach of the duty of disclosure in connection with the Board's public statements about the search for a replacement for outgoing CEO Michael Eisner.
In their lawsuit, Messrs. Disney and Gold are asking the Court to void the 2005 election of Disney Company directors and to compel the Company to hold another election for directors after full and fair disclosure of all material facts about the CEO selection process. Messrs. Disney and Gold are also asking the Court to enjoin the Company and the Board from changing either Eisner's or Iger's compensation or employment contracts. :
The complaint states, "In light of Disney's and Gold's successful 'Just Say No' campaign at the 2004 Annual Meeting and threat to run an alternate slate of directors at the 2005 Annual Meeting, Defendants delayed their selection of [Robert] Iger until shortly after the 2005 Annual Meeting, used Company resources to promote Iger's candidacy and did not in good faith seriously consider any other candidate." As a result of Messrs. Disney's and Gold's efforts, a total of 45.37% of the Company's stockholders withheld their votes for Mr. Eisner, 25.69% withheld their votes for Senator Mitchell, and 24.37% withheld their votes for Ms. Estrin in an unprecedented "No Confidence Vote" at the Company's 2004 Annual Meeting.
According to the complaint, despite the Board's public promises to Company shareholders that it would conduct the CEO search with 'open minds' and with no predeterminations or preconditions, in reality, the Board's CEO selection process precluded serious and effective consideration of external candidates. The complaint cites, among other things:
• reports that the Board interviewed only one external candidate, delayed notifying her of any decision and did little to dissuade her from withdrawing her candidacy;
• Michael Eisner's presence or expected presence at interviews of external candidates; and
• the Board's failure to investigate Iger's role in the Fox Family Channel acquisition, the presentation of overly optimistic projects about Fox Family to the Board and the related withholding from the Board of the CFO's plan to save the Company $400 million by writing down the value of those Fox Family assets.
Messrs. Disney and Gold's complaint states that shareholders were misled by the Board's public promises of open mindedness, saying that had "Disney and Gold known that the Company and a majority of the Board did not intend to stand by their public statements about engaging in a bona fide CEO selection process, [they] would have run an alternate slate of directors at the 2005 annual stockholders meeting."
Also revealed in the complaint is the Company's recent rejection of Messrs. Disney's and Gold's request under Delaware law for books and records documenting the Board's search for Eisner's successor. Messrs. Disney and Gold's complaint cites the Company's refusal to permit any scrutiny of the Board's decision to appoint Iger as CEO as further evidence that shareholders were misled by the Board's statements about a bona fide process.
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