This press release states that Apple is making plans to pay out more cash to shareholders, and that the special term does not exclude the board of directors from doing other things with preference shares in addition.
Apple shares are likely to rise on this news in the short term, but may be a signal that Apple has no new healthy investments, and may lower share price in the long term. Nobody knows, share markets are volatile.
From my reading of the news, I think this is wrong. Einhorn (of Greenlight) is not suing to force them to pay out. He's pressuring via normal shareholder activism.
"They are also sueing over a special term that allows Apple to create preference shares.."
Well, this is closer, but still not quite right.
Apple has a proposal forward for shareholder vote. Einhorn/Greenlight claim that this proposal is really three proposals in one, and that SEC rules require these three proposals to be unbundled, and voted on seperately. They're therefore suing to force this unbundling.
Even if his suit is 100% successful, Apple shareholders will still be able to vote in favour of the modification, which would, according to the summary by Apple and that by CalPERS, 'Eliminate “blank check” preferred stock'.
Einhorn's choice of language implies that he is in favour of at least one of the other aspects of Proposal 2, which is part of why he's suing to unbundle.
Here are some things I read to help me understand this:
http://www.sec.gov/Archives/edgar/data/320193/00011715201300...
http://blogs.barrons.com/techtraderdaily/2013/02/07/aapl-is-...
and then after that, re-read TFA (the apple.com statement)
"Buy low, sell high".
Pros for the investor: if you are corporation/qualified investor, rather than paying 35% capital gains tax in the U.S. they will pay 15%. Preferred also tends to be senior to ordinary equity.
Cons for the investor: they will probably have little or no voting rights as preferred equity holders. Little decision making at the shareholders' meeting. Additionally, given that preferred equity does not participate in the growth of the company, the preferred shares and dividends will most certainly remain/trade like a bond, with little volatility compared to traditional equities (if Apple's revenues/cash continue to grow like crazy, preferred equity investor will not have that much an upside).
Cons for Apple: preferred dividends are not tax-deductible (unlike debt). In theory, Apple's cost of capital will increase. They will also issue an instrument with no redemption date.
Pros for Apple: they might be able to avoid paying any repatriation on cash held internationally. Preferred equity is great for defending a company from hostile takeovers (but this is rare in Apple's case given its size).
Serious question: all else being equal, if you had to pay less taxes on gains from preferred stock, then wouldn't the market be expected to price it higher, since people are presumably investing, buying/selling based on their expected return post-taxes? Thus, in the end, making it a wash?
Or are there other factors, like international investors etc., that prevent this?
According to their 10k (which I received in paper yesterday):
As of 9/29/2012, they had 121.3B in cash, cash equivalents and marketable securities. Of that, 10.7B in cash, 18.3B in short term marketable securities, and and 92B in Long term marketable securities.
Cash + equivalents are highly liquid investments with maturities of 3 months or less at the date of purchase. Short term securities have a maturity of < 12 months, and long term are > 12 months.
It's also broken down by holding (in $B):
Money Market : 1.4 (cash)
Mutual Funds : 2.4 (st)
US Treasury : 20.1 (mixed, mostly lt)
US Agency : 19.5 (mostly lt)
Non US Gov : 5.6 (mostly lt)
CDs : 2.2 (cash + lt)
Commercial Paper: 2.1 (cash + st)
Corporate : 46.8 (st + mostly lt)
Munis : 5.6 (mostly lt)
MortgageBacked : 12 (lt)
(edit for formatting)