UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
Mallinckrodt plc |
(Name of Issuer) |
Ordinary shares, par value $0.20 per share |
(Title of Class of Securities) |
G5785G107 |
(CUSIP Number) |
The Buxton Helmsley Group, Inc. 1185 Avenue of the Americas, Floor 3 New York, N.Y. 10036-2600 Tel.: +1 (212) 561-5540 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
October 14, 2021 |
(Date of Event which Requires Filing of this Statement) |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7(b) for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. G5785G107 | SCHEDULE 13D | Page 2 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Buxton Helmsley Holdings, Inc. | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
WC | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Michigan | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
0 | |||
8 | SHARED VOTING POWER | ||
1,591,430 | |||
9 | SOLE DISPOSITIVE POWER | ||
0 | |||
10 | SHARED DISPOSITIVE POWER | ||
1,591,430 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
1,591,430 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
1.9%1 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
HC, CO | |||
__________________
1 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 3 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
The Buxton Helmsley Group, Inc. | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
WC | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Michigan | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
0 | |||
8 | SHARED VOTING POWER | ||
1,591,430 | |||
9 | SOLE DISPOSITIVE POWER | ||
0 | |||
10 | SHARED DISPOSITIVE POWER | ||
1,591,430 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
1,591,430 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
1.9%2 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
CO, IA | |||
__________________
2 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 4 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Alexander Parker | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
AF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
USA | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
0 | |||
8 | SHARED VOTING POWER | ||
1,591,430 | |||
9 | SOLE DISPOSITIVE POWER | ||
0 | |||
10 | SHARED DISPOSITIVE POWER | ||
1,591,430 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
1,591,430 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
1.9%3 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
HC, IN | |||
__________________
3 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 5 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Valerii Mansurov | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
400,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
400,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
400,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.5%34 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
34 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 6 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Vladimir Kovalenko | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
370,183 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
370,183 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
370,183 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.4%5 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
5 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 7 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Kharkov Aleksandr Sergeevich | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
255,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
255,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
255,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.3%6 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
6 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 8 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Thomas Gitter | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Wisconsin | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
0 | |||
8 | SHARED VOTING POWER | ||
235,250 | |||
9 | SOLE DISPOSITIVE POWER | ||
0 | |||
10 | SHARED DISPOSITIVE POWER | ||
235,250 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
235,250 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.3%8 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
8 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 9 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Elena Tsygankova | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
WC | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
0 | |||
8 | SHARED VOTING POWER | ||
228,000 | |||
9 | SOLE DISPOSITIVE POWER | ||
0 | |||
10 | SHARED DISPOSITIVE POWER | ||
228,000 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
228,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.3%7 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IA, IN | |||
__________________
7 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 10 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Vladislav Dikii | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
220,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
220,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
220,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.3%4 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
4 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 11 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Daniliuk Kirill Vladimirovich | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
193,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
193,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
193,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.2%9 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
9 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 12 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Roman Dontsov Valentinovich | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
135,212 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
135,212 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
135,212 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.2%10 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
10 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 13 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Alexey Evgeneevich Ilinykh | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
121,388 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
121,388 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
121,388 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%36 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
36 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 14 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Alexey Isaev | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
121,347 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
121,347 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
121,347 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%11 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
11 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 15 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Alexander Koch | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Germany | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
120,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
120,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
120,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%12 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
12 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 16 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
James Jonathan Josey | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Missouri | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
111,400 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
111,400 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
111,400 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%13 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
13 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 17 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Pradeep Vasudeva Kadambi | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Florida | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
101,900 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
101,900 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
101,900 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%14 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
14 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 18 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Kimberly Tully | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
New Jersey | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
96,843 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
96,843 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
96,843 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%16 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
16 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 19 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Edgard Gafurov | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
96,512 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
96,512 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
96,512 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%15 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
15 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 20 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Joan I. Barry Revocable Trust (Dtd. 12/13/13) | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
WC | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Missouri | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
93,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
93,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
93,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%17 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
OO | |||
__________________
17 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 21 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Zavolozhin Sergey Vladimirovich | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
91,413 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
91,413 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
91,413 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%24 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
24 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 22 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
James Paul Carey | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Ohio | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
90,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
90,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
90,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%18 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
18 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 23 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Janice J. O'Connor | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Missouri | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
84,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
84,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
84,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%19 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
19 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 24 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Yushenkova Olga Petrovna | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
77,699 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
77,699 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
77,699 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%21 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
21 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 25 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Vanik Petrosian | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
74,300 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
74,300 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
74,300 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%22 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
22 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 26 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Richard Barry | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Texas | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
72,285 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
72,285 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
72,285 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%23 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
23 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 27 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Victor Viktorovich Borodaenko | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
70,803 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
70,803 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
70,803 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%42 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
42 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 28 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Igor Gnativ | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
66,651 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
66,651 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
66,651 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%38 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
38 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 29 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Carleen Walsh | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
New York | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
64,654 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
64,654 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
64,654 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%35 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
35 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 30 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Aleksandr Aleksandrovich Morozov | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
61,499 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
61,499 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
61,499 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%43 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
43 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 31 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Andrew Gruber | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Massachussets | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
60,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
60,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
60,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%20 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
20 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 32 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Denis Baykin | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
59,804 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
59,804 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
59,804 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%40 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
40 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 33 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Ryzhov Evgenii Nikolaevich | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
56,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
56,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
56,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%41 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
41 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 34 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Chris Tichenor | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Kentucky | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
54,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
54,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
54,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%25 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
25 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 35 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Victor Pardo | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
New York | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
52,080 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
52,080 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
52,080 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%26 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
26 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 36 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Oksana Dmitrievna Trofimova | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
50,547 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
50,547 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
50,547 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%44 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
44 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 37 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Aleksei Gudz | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
50,547 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
50,547 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
50,547 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%45 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
45 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 38 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Alex Peter Wounlund | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Denmark | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
47,018 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
47,018 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
47,018 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%27 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
27 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 39 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Petr Hoferek | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Nebraska | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
45,100 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
45,100 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
45,100 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%28 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
28 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 40 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
John V. Barry Revocable Trust (Dtd. 12/13/13) | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
WC | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Missouri | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
44,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
44,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
44,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.1%29 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
OO | |||
__________________
29 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 41 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Nepiyvoda Kirill Nikolaevich | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
40,000 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
40,000 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
40,000 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.0%30 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
30 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 42 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Mary Dunne | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
New York | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
39,347 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
39,347 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
39,347 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.0%31 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
31 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 43 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Aleksei Chernyshev | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Russia | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
36,310 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
36,310 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
36,310 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.0%39 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
39 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
|
CUSIP No. G5785G107 | SCHEDULE 13D | Page 44 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
Israel Larrondo | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Spain | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
23,634 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
23,634 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
23,634 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.0%32 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
32 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
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CUSIP No. G5785G107 | SCHEDULE 13D | Page 45 of 45 Pages |
1 | NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) |
||
David Lamb | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | ||
(a) [X] (b) [ ] |
|||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS (See Instructions) | ||
PF | |||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) | ||
[ ] | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Oregon | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER | |
17,632 | |||
8 | SHARED VOTING POWER | ||
0 | |||
9 | SOLE DISPOSITIVE POWER | ||
17,632 | |||
10 | SHARED DISPOSITIVE POWER | ||
0 | |||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||
17,632 | |||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) | ||
[ ] | |||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||
0.0%33 | |||
14 | TYPE OF REPORTING PERSON (See Instructions) | ||
IN | |||
__________________
33 Based upon 84,713,826 shares of Ordinary shares, par value $0.20 per share ("Shares"), of Mallinckrodt plc. (the "Issuer") outstanding as of June 25, 2021, as reported in the Issuer's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 2, 2021.
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This Amendment No. 6 to Schedule 13D ("Amendment No. 6") amends and supplements the Schedule 13D originally filed with the Securities and Exchange Commission by the Reporting Persons on March 5, 2021 (the "Schedule 13D") relating to the Ordinary shares, par value $0.20 per share (the "Shares"), of Mallinckrodt plc (the "Issuer"). Except as specifically provided herein, this Amendment No. 6 does not modify any of the information previously reported on the Schedule 13D. Capitalized terms used but not otherwise defined in this Amendment No. 5 shall have the meanings ascribed to them in the Schedule 13D.
Item 1. | Security and Issuer |
Item 1 of Schedule 13D is hereby amended and restated in its entirety to read as follows:
This Schedule 13D is being filed with respect to common shares issued by Mallinckrodt plc, whose principal executive offices are at College Business & Technology Park, Cruiserath, Blanchardstown, Dublin 15, Ireland.
Item 2. | Identity and Background |
Item 2 of Schedule 13D is hereby amended and restated in its entirety to read as follows:
(a) |
This Schedule 13D is being filed jointly pursuant to that certain Joint Filing Agreement filed herewith as Exhibit 99.1 by: • Buxton Helmsley Holdings, Inc. ("Holdings") • The Buxton Helmsley Group, Inc. ("Buxton") • Alexander Parker ("Parker") and • The individual persons and entities listed below (collectively, the "Individual Members"): o Valerii Mansurov o Vladimir Kovalenko o Kharkov Aleksandr Sergeevich o Thomas Gitter o Elena Tsygankova o Vladislav Dikii o Daniliuk Kirill Vladimirovich o Roman Dontsov Valentinovich o Alexey Evgeneevich Ilinykh o Alexey Isaev o Alexander Koch o James Jonathan Josey o Pradeep Vasudeva Kadambi o Kimberly Tully o Edgard Gafurov o Joan I. Barry Revocable Trust (Dtd. 12/13/13) o Zavolozhin Sergey Vladimirovich o James Paul Carey o Janice J. O'Connor o Yushenkova Olga Petrovna o Vanik Petrosian o Richard Barry o Victor Viktorovich Borodaenko o Igor Gnativ o Carleen Walsh o Aleksandr Aleksandrovich Morozov o Andrew Gruber o Denis Baykin o Ryzhov Evgenii Nikolaevich o Chris Tichenor o Victor Pardo o Oksana Dmitrievna Trofimova o Aleksei Gudz o Alex Peter Wounlund o Petr Hoferek o John V. Barry Revocable Trust (Dtd. 12/13/13) o Nepiyvoda Kirill Nikolaevich o Mary Dunne o Aleksei Chernyshev o Israel Larrondo o David Lamb
|
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Together with Holdings, Buxton, and Parker, the Individual Members comprise a group within the meaning of Section 13(d)(3) of the Act. |
||
(b) | The business address of Holdings, Buxton, and Parker is 1185 Avenue of the Americas, Floor 3, New York, N.Y. 10036-2600. Information regarding the Individual Members is set forth on Schedule A. | |
(c) | Buxton is the wholly-owned subsidiary of Holdings, a parent holding company. Buxton is a private asset management and financial services firm and a registered investment advisor. Buxton holds the Shares reported in this Schedule 13D in the accounts of Buxton's discretionary clients. Parker is the sole control person of both Buxton and Holdings. Parker holds the title of Director at Holdings and Senior Managing Director at Buxton. There are no other directors, officers, or control persons at Holdings or Buxton. Information regarding the Individual Members is set forth on Schedule A. | |
(d) | During the last five years, neither Holdings, Buxton, Parker, nor any of the Individual Members have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). | |
(e) | During the last five years, neither Holdings, nor the Individual Members, have been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and became subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Buxton and Parker were involved in an adversary proceeding filed against them by the Issuer (Mallinckrodt Plc. v. The Buxton Helmsley Group, Inc. and Alexander E. Parker, Adv Proc. No. 21-505242), as part of the Issuer's Chapter 11 proceedings (Mallinckrodt plc, et al., Case No. 20-12522), for which an injunction (the "Injunction") was issued by the United States Bankruptcy Court for the District of Delaware (the "Court"), enjoining certain activities of Buxton, Parker, and "any person or entity" (with no limitation) deemed by Issuer's directors or management as "acting in concert", whether "directly or indirectly" (Injunction, § 6). Those enjoined activities include, for example, the calling of an extraordinary general meeting of the Issuer's shareholders/members, nomination of directors or officers as part of any general meeting of the shareholders/members, casting votes in any general meeting of the shareholders/members to "remove" or "replace" directors of the Issuer (the Injunction, § 1(e), "any action seeking to remove, replace ... any directors or officers of any Debtor"), submission of shareholder proposals to be "acted upon" by shareholders/members as part of a general meeting (the Injunction, § 1(c), "any steps to ... propose any matters to be acted upon by Mallinckrodt shareholders"), solicitation of proxies, any litigation against the Issuer or its officers and/or directors, among other restrictions of activities covered by that Injunction, requested by the Issuer and ordered by the Court. |
|
(f) | Holdings and Buxton are Michigan corporations. Parker is a citizen of the United States of America. The citizenship of each Individual Member is set forth on Schedule A. |
Item 3. | Source and Amount of Funds or Other Considerations |
Item 3 of Schedule 13D is hereby amended and restated in its entirety to read as follows:
225,030Funds for the purchase of the Shares reported herein were derived from available working capital of Buxton. Buxton purchased 510,936 Shares of the Issuer in open market purchases between January 12, 2021 and March 1, 2021 for a total of $162,503.38. Buxton also purchased an additional 225,030 Shares of the Issuer in open market purchases during the sixty (60) days preceding this amendment, for a total of $44,195.63. Buxton made other purchases of the Shares previously, also via available working capital.
The Reporting Persons collectively may be deemed to be the beneficial owner of, in the aggregate, 5,919,788 Shares. For the Individual Members, other than Elena Tsygankova, the Joan I. Barry Revocable Trust (Dtd. 12/13/13), and the John V. Barry Revocable Trust (Dtd. 12/13/13), whose funding for the Shares was derived from available working capital, the source of funding for the Shares was personal funds of the respective Individual Member.
Item 4. | Purpose of Transaction |
Item 4 of Schedule 13D is hereby amended and restated in its entirety to read as follows:
The Reporting Persons reserve the right, consistent with applicable law, to (i) acquire additional Shares and/or other equity, debt, notes, instruments or other securities (collectively, "Securities") of the Issuer (or its affiliates) in the open market or otherwise; (ii) dispose of any or all of their Securities in the open market or otherwise; and (iii) engage in any hedging or similar transactions with respect to the Securities. The Reporting Persons may engage in discussions with management or the Board of Directors of the Issuer concerning the business, operations, management, and future plans of the Issuer. Depending on various factors, including the Reporting Persons' financial position and investment strategy, the price of the Shares, conditions in the securities markets, and general economic and industry conditions, the Reporting Persons may in the future take such actions they deem appropriate and lawful.
On October 14, 2021, the Reporting Persons sent a letter via email (the "October 14, 2021, Letter") to the Issuer, with direct address to the Issuer's Irish legal counsel, Arthur Cox. The October 14, 2021, Letter is filed herewith as Exhibit 99.2 to the Amendment No. 6.
On September 14, 2021, the Reporting Persons sent a letter via email (the "September 14, 2021, Letter") to the Issuer. The September 14, 2021, Letter is filed herewith as Exhibit 99.3 to the Amendment No. 6.
On August 17, 2021, the Reporting Persons sent a letter via email (the "August 17, 2021, Letter") to the Issuer. The August 17, 2021, Letter is filed herewith as Exhibit 99.4 to the Amendment No. 6.
On August 5, 2021, the Reporting Persons sent a letter via email (the "August 5, 2021, Letter") to the Issuer. The August 5, 2021, Letter is filed herewith as Exhibit 99.5 to the Amendment No. 6.
On August 3, 2021, the Reporting Persons sent a letter via email (the "August 3, 2021, Letter") to the Issuer. The August 3, 2021, Letter is filed herewith as Exhibit 99.6 to the Amendment No. 6.
On July 7, 2021, the Reporting Persons sent a letter via email (the "July 7, 2021, Letter") to the Issuer. The July 7, 2021, Letter is filed herewith as Exhibit 99.7 to the Amendment No. 6.
On June 1, 2021, the Reporting Persons sent a letter via email (the "June 1, 2021, Letter") to the Issuer. The June 1, 2021, Letter is filed herewith as Exhibit 99.8 to the Amendment No. 6.
On May 20, 2021, the Reporting Persons sent a letter via email (the "May 20, 2021, Letter") to the Issuer. The May 20, 2021, Letter is filed herewith as Exhibit 99.9 to the Amendment No. 6.
On March 10, 2021, the Reporting Persons sent a letter via email (the "March 10, 2021, Letter") to the Issuer. The March 10, 2021, Letter is filed herewith as Exhibit 99.10 to the Amendment No. 6.
Item 5. | Interest in Securities of the Issuer |
Item 5 of Schedule 13D is hereby amended and restated in its entirety to read as follows:
(a) | As of the time of this filing, Holdings, Buxton, and Parker own 1,591,430 Shares of the Issuer, or a 1.9% ownership interest of the Issuer's Shares. Information regarding the Individual Members is set forth on Schedule B. Collectively, Holdings, Buxton, Parker, and the Individual Members own 5,919,788 Shares or a 7.0% ownership interest of the Issuer's Shares. |
(b) |
Number of Shares as to which such person has:
(i) Sole Voting Power: Each of Holdings, Buxton, and Parker has the sole power to vote or direct the vote over 0 Shares.
(ii) Shared Voting Power: Holdings has the shared power to vote or direct the vote over 1,591,430 Shares. Buxton has the shared power to vote or direct the vote over 1,591,430 Shares. Parker has the shared power to vote or direct the vote over 1,591,430 Shares.
(iii) Sole Dispositive Power: Each of Holdings, Buxton, and Parker has the sole power to dispose or direct the disposition of 0 Shares.
(iv) Shared Dispositive Power: Holdings has the shared power to dispose or to direct the direct the disposition of 1,591,430 Shares. Buxton has the shared power to dispose or to direct the direct the disposition of 1,591,430 Shares. Parker has the shared power to dispose or to direct the direct the disposition of 1,591,430 Shares.
Information regarding the voting and dispositive power of the Individual Members is set forth on Schedule B. |
(c) |
The following table sets forth all transactions with respect to the Shares effected during the past sixty (60) days by any of the Reporting Persons, inclusive of any transactions effected through 4:00 p.m., New York City time, on October 13, 2021. Except as otherwise noted below, all such transactions were purchases of Shares effected in the open market, and the table includes commissions paid in per share prices. |
Reporting Person | Date | Shares | Price of Security |
Buxton | 2021-10-08 | 34105 | 0.18 |
Buxton | 2021-10-08 | 10876 | 0.18 |
Buxton | 2021-10-08 | 1400 | 0.18 |
Buxton | 2021-10-08 | 7431 | 0.18 |
Buxton | 2021-10-08 | -10000 | 0.185 |
Buxton | 2021-10-08 | -9000 | 0.1872222 |
Buxton | 2021-09-14 | 28333 | 0.2099 |
Buxton | 2021-09-14 | 5000 | 0.2099 |
Buxton | 2021-09-14 | 1533 | 0.2044 |
Buxton | 2021-09-14 | 28301 | 0.2005 |
Buxton | 2021-08-31 | 776 | 0.205 |
Buxton | 2021-08-17 | 4540 | 0.197 |
Buxton | 2021-08-17 | 8950 | 0.196 |
Buxton | 2021-08-17 | 10000 | 0.196 |
Buxton | 2021-08-17 | 10000 | 0.196 |
Buxton | 2021-08-17 | 10000 | 0.199 |
Buxton | 2021-08-17 | 10000 | 0.199 |
Buxton | 2021-08-17 | 16050 | 0.199 |
Buxton | 2021-08-17 | 5000 | 0.195 |
Buxton | 2021-08-17 | 2900 | 0.192 |
Buxton | 2021-08-17 | 2763 | 0.195 |
Buxton | 2021-08-17 | 7137 | 0.195 |
Buxton | 2021-08-17 | 5600 | 0.2 |
Buxton | 2021-08-17 | 10400 | 0.2 |
Buxton | 2021-08-17 | 10120 | 0.197 |
Buxton | 2021-08-17 | 10379 | 0.197 |
Buxton | 2021-08-16 | 2436 | 0.188 |
Kimberly Tully | 2021-08-16 | 75 | 0.1773 |
Kimberly Tully | 2021-08-16 | 30 | 0.175 |
(d) | N/A. |
(e) | N/A. |
Item 7. | Material to Be Filed as Exhibits |
Item 7 of Schedule 13D is hereby amended and restated in its entirety to read as follows:
Schedule A
Schedule A of Schedule 13D is hereby amended and restated in its entirety to read as follows:
Name | Principal Business Address or Residence | Principal Occupation or Employment/ Principal Business | Citizenship |
Valerii Mansurov | Russia, Ufa city, Richard Zorge 64, 14 |
Construction Consultant |
Russia |
Vladimir Kovalenko | 246700 Pskov Pushkina street 611/1 Russia |
Investor (Self-Employed) |
Russia |
Kharkov Aleksandr Sergeevich | 630550, OBL NOVOSIBIRSKAIA, R-N NOVOSIBIRSKII, S pazdolnoe, PER ZELENYI, DOM 28 |
Investor (Self-Employed) |
Russia |
Thomas Gitter | 17 Parklawn Place, Madison, WI 53705 |
Retired |
USA |
Elena Tsygankova | Moscow Rusakovskaya street 31 |
Financial Advisor |
Russia |
Vladislav Dikii | Moscow, p. Pervomayskoe, Block 328, Bld. 96, bldg. 9 |
Investor (Self-Employed) |
Russia |
Daniliuk Kirill Vladimirovich | 125315,G MOSKVA,PR-KT LENINGRADSKII,DOM 74/6,KV 76 |
Retired |
Russia |
Roman Dontsov Valentinovich | 350005 Russia, Krasnodar, Alexandra Pokryshkina street 2 /2 apartment 416 |
Investor (Self-Employed) |
Russia |
Alexey Evgeneevich Ilinykh | Russia Perm City 17-56 Yaltinskaya Street |
Engineer (Self-Employed) |
Russia |
Alexey Isaev | Russian Federation. Moscow. Fryazevskaya street house 11. |
Investor (Self-Employed) |
Russia |
Alexander Koch | Jakob-Kaiser-Str. 14A, D-49088 Osnabrueck, Germany |
Self-Employed |
Germany |
James Jonathan Josey | 5319 Carolwood Drive, Jackson, MS 39211 |
Deputy CFO at The Molpus Woodlands Group, LLC |
USA |
Pradeep Vasudeva Kadambi | 2764 Tartus Dr., Jacksonville, FL 32246 USA |
Doctor (Self-Employed) |
USA |
Kimberly Tully | 4 South Deer Place, Hainesport, NJ 08036 |
Self-Employed (Consultant) |
USA |
Edgard Gafurov | Russia Novocheboksarsk Vostochnaya street, house 1, building 2, apartment 54 |
Investor (Self-Employed) |
Russia |
Joan I. Barry Revocable Trust (Dtd. 12/13/13) | 3313 S. Victoria Drive, Blue Springs, MO 64015 |
Retired |
USA |
Zavolozhin Sergey Vladimirovich | Russia, Novosibirsk region, R, P Koltsovo 28 |
Investor (Self-Employed) |
Russia |
James Paul Carey | 881 Southerford Avenue, Dayton, OH 45429 |
Patent Lawyer at Mane, Inc. |
USA |
Janice J. O'Connor | 12808 S. Outer Belt Road, Lone Jack, MO 64070 |
Retired |
USA |
Yushenkova Olga Petrovna | Russia, Ryazan,Moscovskoe shosse d.33/4 kv.435 |
Investor (Self-Employed) |
Russia |
Vanik Petrosian | Ul Vodopoinaia, d 19, kv 178, 357748, g Kislovodsk, Stavropolskii krai |
Retired |
Russia |
Richard Barry | 4532 Saint James Drive, Plano TX 75024 |
IT Management at United Surgical Partners Incorporated |
USA |
Victor Viktorovich Borodaenko | Apt. 50, 16, k.3 15 Parkovaya street., Moscow, 105203, the Russian Federation |
Principal Occupation: Auditor at LLC "TNF" |
Russia |
Igor Gnativ | 620026 Sverdlovsk region Yekaterinburg Decembrists 45-297 |
Entrepreneur/Investor |
Russia |
Carleen Walsh | 640 Lincoln Avenue, Sayville, N.Y. 11782 |
Self-Employed (Investor) |
USA |
Aleksandr Aleksandrovich Morozov | Russian Federation, Nadym Yamal-Nenets St. Zvereva 50 kV.187 |
Self-Employed (Investor) |
Russia |
Andrew Gruber | 215 Pleasant Street, Arlington MA 02476 |
Engineer at Qualcomm |
USA |
Denis Baykin | 140492, Russia, Moscow region, Kolomensky district, village Zarudnya, house 43, apartment 32 |
Principal Occupation: Sales Associate at OOO "Garmoniya" (Samsung) |
Russia |
Ryzhov Evgenii Nikolaevich | Russian Federation, Resp Tatarstan, R-N Bugulminskii, G Bugulma, Ul Iuriia Gagarina, Dom 72 |
Self-Employed (Mechanical Engineering Work) |
Russia |
Chris Tichenor | 400 Redding Road, Lexington, KY 40517 |
Retired |
USA |
Victor Pardo | 11 Threepence Drive, Melville, NY 11747 |
Audio Engineer at Self-Employed |
USA |
Oksana Dmitrievna Trofimova | Apt. 31, 5a Zavodskaya str, the town of Nadym, Yamalo-Nenets Autonomous Okrug, 629735, the Russian Federation |
Self-Employed (Writer) |
Russia |
Aleksei Gudz | Apt. 74, 101 Goroda Volos street, Rostov on Don city, 344000, the Russian Federation |
Principal Occupation: Office Manager |
Russia |
Alex Peter Wounlund | Bredholtvej 8, 2650 Hvidovre, Denmark |
Key Account Manager at GlobalConnect |
Denmark |
Petr Hoferek | 9516 Park Drive, Unit 206, Omaha, NE 68127 |
Inventory Control at PAK Global LLC |
USA |
John V. Barry Revocable Trust (Dtd. 12/13/13) | 3313 S. Victoria Drive, Blue Springs, MO 64015 |
Retired |
USA |
Nepiyvoda Kirill Nikolaevich | Russia, Kaluga, Duminichi, Molodezhnaya street 5a, 249300. |
Self-Employed (Investor) |
Russia |
Mary Dunne | 54 Hicks Street, Brooklyn, NY 11201 |
Retired |
USA |
Aleksei Chernyshev | Moscow, str. Makarenko, 9-18 |
Principal Occupation: Chief Mechanic at OOO "Fakel Plus" |
Russia |
Israel Larrondo | Medinaceli, 6, 6. 28660. Boadilla del Monte. Madrid. Spain |
Renewable Energy Technician at PEMOG |
Spain |
David Lamb | 13560 NW Springville Road, Portland, OR 97229 |
Digital Design Engineer at Skyworks Solutions, Inc. |
USA |
Schedule B
Schedule B of Schedule 13D is hereby amended and restated in its entirety to read as follows:
Name | Aggregate Number of Shares Owned | Percentage of Class | Sole Voting Power | Shared Voting Power | Sole Dispositive Power | Shared Dispositive Power |
Valerii Mansurov | 400,000 | 0.5% | 400,000 | 0 | 400,000 | 0 |
Vladimir Kovalenko | 370,183 | 0.4% | 370,183 | 0 | 370,183 | 0 |
Kharkov Aleksandr Sergeevich | 255,000 | 0.3% | 255,000 | 0 | 255,000 | 0 |
Thomas Gitter | 235,250 | 0.3% | 0 | 235,250 | 0 | 235,250 |
Elena Tsygankova | 228,000 | 0.3% | 0 | 228,000 | 0 | 228,000 |
Vladislav Dikii | 220,000 | 0.3% | 220,000 | 0 | 220,000 | 0 |
Daniliuk Kirill Vladimirovich | 193,000 | 0.2% | 193,000 | 0 | 193,000 | 0 |
Roman Dontsov Valentinovich | 135,212 | 0.2% | 135,212 | 0 | 135,212 | 0 |
Alexey Evgeneevich Ilinykh | 121,388 | 0.1% | 121,388 | 0 | 121,388 | 0 |
Alexey Isaev | 121,347 | 0.1% | 121,347 | 0 | 121,347 | 0 |
Alexander Koch | 120,000 | 0.1% | 120,000 | 0 | 120,000 | 0 |
James Jonathan Josey | 111,400 | 0.1% | 111,400 | 0 | 111,400 | 0 |
Pradeep Vasudeva Kadambi | 101,900 | 0.1% | 101,900 | 0 | 101,900 | 0 |
Kimberly Tully | 96,843 | 0.1% | 96,843 | 0 | 96,843 | 0 |
Edgard Gafurov | 96,512 | 0.1% | 96,512 | 0 | 96,512 | 0 |
Joan I. Barry Revocable Trust (Dtd. 12/13/13) | 93,000 | 0.1% | 93,000 | 0 | 93,000 | 0 |
Zavolozhin Sergey Vladimirovich | 91,413 | 0.1% | 91,413 | 0 | 91,413 | 0 |
James Paul Carey | 90,000 | 0.1% | 90,000 | 0 | 90,000 | 0 |
Janice J. O'Connor | 84,000 | 0.1% | 84,000 | 0 | 84,000 | 0 |
Yushenkova Olga Petrovna | 77,699 | 0.1% | 77,699 | 0 | 77,699 | 0 |
Vanik Petrosian | 74,300 | 0.1% | 74,300 | 0 | 74,300 | 0 |
Richard Barry | 72,285 | 0.1% | 72,285 | 0 | 72,285 | 0 |
Victor Viktorovich Borodaenko | 70,803 | 0.1% | 70,803 | 0 | 70,803 | 0 |
Igor Gnativ | 66,651 | 0.1% | 66,651 | 0 | 66,651 | 0 |
Carleen Walsh | 64,654 | 0.1% | 64,654 | 0 | 64,654 | 0 |
Aleksandr Aleksandrovich Morozov | 61,499 | 0.1% | 61,499 | 0 | 61,499 | 0 |
Andrew Gruber | 60,000 | 0.1% | 60,000 | 0 | 60,000 | 0 |
Denis Baykin | 59,804 | 0.1% | 59,804 | 0 | 59,804 | 0 |
Ryzhov Evgenii Nikolaevich | 56,000 | 0.1% | 56,000 | 0 | 56,000 | 0 |
Chris Tichenor | 54,000 | 0.1% | 54,000 | 0 | 54,000 | 0 |
Victor Pardo | 52,080 | 0.1% | 52,080 | 0 | 52,080 | 0 |
Oksana Dmitrievna Trofimova | 50,547 | 0.1% | 50,547 | 0 | 50,547 | 0 |
Aleksei Gudz | 50,547 | 0.1% | 50,547 | 0 | 50,547 | 0 |
Alex Peter Wounlund | 47,018 | 0.1% | 47,018 | 0 | 47,018 | 0 |
Petr Hoferek | 45,100 | 0.1% | 45,100 | 0 | 45,100 | 0 |
John V. Barry Revocable Trust (Dtd. 12/13/13) | 44,000 | 0.1% | 44,000 | 0 | 44,000 | 0 |
Nepiyvoda Kirill Nikolaevich | 40,000 | 0.0% | 40,000 | 0 | 40,000 | 0 |
Mary Dunne | 39,347 | 0.0% | 39,347 | 0 | 39,347 | 0 |
Aleksei Chernyshev | 36,310 | 0.0% | 36,310 | 0 | 36,310 | 0 |
Israel Larrondo | 23,634 | 0.0% | 23,634 | 0 | 23,634 | 0 |
David Lamb | 17,632 | 0.0% | 17,632 | 0 | 17,632 | 0 |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
BUXTON HELMSLEY HOLDINGS, INC. | |||
By: | /s/ Alexander E. Parker | October 14, 2021 | |
Name: | Alexander E. Parker | ||
Title: | Director | ||
THE BUXTON HELMSLEY GROUP, INC. | |||
By: | /s/ Alexander E. Parker | October 14, 2021 | |
Name: | Alexander E. Parker | ||
Title: | Senior Managing Director | ||
ALEXANDER E. PARKER | |||
By: | /s/ Alexander E. Parker | October 14, 2021 | |
Name: | Alexander E. Parker | ||
VALERII MANSUROV | |||
By: | */s/ Valerii Mansurov | October 14, 2021 | |
Name: | Valerii Mansurov | ||
VLADIMIR KOVALENKO | |||
By: | */s/ Vladimir Kovalenko | October 14, 2021 | |
Name: | Vladimir Kovalenko | ||
KHARKOV ALEKSANDR SERGEEVICH | |||
By: | */s/ Kharkov Aleksandr Sergeevich | October 14, 2021 | |
Name: | Kharkov Aleksandr Sergeevich | ||
THOMAS GITTER | |||
By: | */s/ Thomas Gitter | October 14, 2021 | |
Name: | Thomas Gitter | ||
ELENA TSYGANKOVA | |||
By: | */s/ Elena Tsygankova | October 14, 2021 | |
Name: | Elena Tsygankova | ||
VLADISLAV DIKII | |||
By: | */s/ Vladislav Dikii | October 14, 2021 | |
Name: | Vladislav Dikii | ||
DANILIUK KIRILL VLADIMIROVICH | |||
By: | */s/ Daniliuk Kirill Vladimirovich | October 14, 2021 | |
Name: | Daniliuk Kirill Vladimirovich | ||
ROMAN DONTSOV VALENTINOVICH | |||
By: | */s/ Roman Dontsov Valentinovich | October 14, 2021 | |
Name: | Roman Dontsov Valentinovich | ||
ALEXEY EVGENEEVICH ILINYKH | |||
By: | */s/ Alexey Evgeneevich Ilinykh | October 14, 2021 | |
Name: | Alexey Evgeneevich Ilinykh | ||
ALEXEY ISAEV | |||
By: | */s/ Alexey Isaev | October 14, 2021 | |
Name: | Alexey Isaev | ||
ALEXANDER KOCH | |||
By: | */s/ Alexander Koch | October 14, 2021 | |
Name: | Alexander Koch | ||
JAMES JONATHAN JOSEY | |||
By: | */s/ James Jonathan Josey | October 14, 2021 | |
Name: | James Jonathan Josey | ||
PRADEEP VASUDEVA KADAMBI | |||
By: | */s/ Pradeep Vasudeva Kadambi | October 14, 2021 | |
Name: | Pradeep Vasudeva Kadambi | ||
KIMBERLY TULLY | |||
By: | */s/ Kimberly Tully | October 14, 2021 | |
Name: | Kimberly Tully | ||
EDGARD GAFUROV | |||
By: | */s/ Edgard Gafurov | October 14, 2021 | |
Name: | Edgard Gafurov | ||
JOAN I. BARRY REVOCABLE TRUST (DTD. 12/13/13) | |||
By: | */s/ Janice J. O'Connor | October 14, 2021 | |
Name: | Janice J. O'Connor | ||
Title: | Co-Trustee | ||
ZAVOLOZHIN SERGEY VLADIMIROVICH | |||
By: | */s/ Zavolozhin Sergey Vladimirovich | October 14, 2021 | |
Name: | Zavolozhin Sergey Vladimirovich | ||
JAMES PAUL CAREY | |||
By: | */s/ James Paul Carey | October 14, 2021 | |
Name: | James Paul Carey | ||
JANICE J. O'CONNOR | |||
By: | */s/ Janice J. O'Connor | October 14, 2021 | |
Name: | Janice J. O'Connor | ||
YUSHENKOVA OLGA PETROVNA | |||
By: | */s/ Yushenkova Olga Petrovna | October 14, 2021 | |
Name: | Yushenkova Olga Petrovna | ||
VANIK PETROSIAN | |||
By: | */s/ Vanik Petrosian | October 14, 2021 | |
Name: | Vanik Petrosian | ||
RICHARD BARRY | |||
By: | */s/ Richard Barry | October 14, 2021 | |
Name: | Richard Barry | ||
VICTOR VIKTOROVICH BORODAENKO | |||
By: | */s/ Victor Viktorovich Borodaenko | October 14, 2021 | |
Name: | Victor Viktorovich Borodaenko | ||
IGOR GNATIV | |||
By: | */s/ Igor Gnativ | October 14, 2021 | |
Name: | Igor Gnativ | ||
CARLEEN WALSH | |||
By: | */s/ Carleen Walsh | October 14, 2021 | |
Name: | Carleen Walsh | ||
ALEKSANDR ALEKSANDROVICH MOROZOV | |||
By: | */s/ Aleksandr Aleksandrovich Morozov | October 14, 2021 | |
Name: | Aleksandr Aleksandrovich Morozov | ||
ANDREW GRUBER | |||
By: | */s/ Andrew Gruber | October 14, 2021 | |
Name: | Andrew Gruber | ||
DENIS BAYKIN | |||
By: | */s/ Denis Baykin | October 14, 2021 | |
Name: | Denis Baykin | ||
RYZHOV EVGENII NIKOLAEVICH | |||
By: | */s/ Ryzhov Evgenii Nikolaevich | October 14, 2021 | |
Name: | Ryzhov Evgenii Nikolaevich | ||
CHRIS TICHENOR | |||
By: | */s/ Chris Tichenor | October 14, 2021 | |
Name: | Chris Tichenor | ||
VICTOR PARDO | |||
By: | */s/ Victor Pardo | October 14, 2021 | |
Name: | Victor Pardo | ||
OKSANA DMITRIEVNA TROFIMOVA | |||
By: | */s/ Oksana Dmitrievna Trofimova | October 14, 2021 | |
Name: | Oksana Dmitrievna Trofimova | ||
ALEKSEI GUDZ | |||
By: | */s/ Aleksei Gudz | October 14, 2021 | |
Name: | Aleksei Gudz | ||
ALEX PETER WOUNLUND | |||
By: | */s/ Alex Peter Wounlund | October 14, 2021 | |
Name: | Alex Peter Wounlund | ||
PETR HOFEREK | |||
By: | */s/ Petr Hoferek | October 14, 2021 | |
Name: | Petr Hoferek | ||
JOHN V. BARRY REVOCABLE TRUST (DTD. 12/13/13) | |||
By: | */s/ Janice J. O'Connor | October 14, 2021 | |
Name: | Janice J. O'Connor | ||
Title: | Co-Trustee | ||
NEPIYVODA KIRILL NIKOLAEVICH | |||
By: | */s/ Nepiyvoda Kirill Nikolaevich | October 14, 2021 | |
Name: | Nepiyvoda Kirill Nikolaevich | ||
MARY DUNNE | |||
By: | */s/ Mary Dunne | October 14, 2021 | |
Name: | Mary Dunne | ||
ALEKSEI CHERNYSHEV | |||
By: | */s/ Aleksei Chernyshev | October 14, 2021 | |
Name: | Aleksei Chernyshev | ||
ISRAEL LARRONDO | |||
By: | */s/ Israel Larrondo | October 14, 2021 | |
Name: | Israel Larrondo | ||
DAVID LAMB | |||
By: | */s/ David Lamb | October 14, 2021 | |
Name: | David Lamb | ||
*By: | /s/ Alexander E. Parker | September 14, 2021 | |
Name: | Alexander E. Parker | ||
Title: | Attorney-in-Fact |
EXHIBIT 99.1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a statement on Schedule 13D, including all amendments thereto, with respect to the ordinary shares, par value $0.20 per share, of Mallinckrodt plc, and further agree that this Joint Filing Agreement shall be included as an exhibit to the first such joint filing and may, as required, be included as an exhibit to subsequent amendments thereto.
Each of the undersigned agrees and acknowledges that each party hereto is (i) individually eligible to use such Schedule 13D and (ii) responsible for the timely filing of such Schedule 13D and any and all amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided that no party is responsible for the completeness and accuracy of the information concerning any other party unless such party knows or has reason to believe that such information is inaccurate.
Each of the undersigned hereby constitutes and appoints Alexander E. Parker as their true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to the statement on Schedule 13D, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Joint Filing Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. A facsimile or other reproduction of this Joint Filing Agreement may be executed by one or more parties hereto, and an executed copy of this Joint Filing Agreement may be delivered by one or more parties hereto by facsimile or similar instantaneous electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes as of the date hereof.
Dated: August 2, 2021
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the date first written above.
BUXTON HELMSLEY HOLDINGS, INC. | |||
By: | /s/ Alexander E. Parker | August 2, 2021 | |
Name: | Alexander E. Parker | ||
Title: | Director | ||
THE BUXTON HELMSLEY GROUP, INC. | |||
By: | /s/ Alexander E. Parker | August 2, 2021 | |
Name: | Alexander E. Parker | ||
Title: | Senior Managing Director | ||
ALEXANDER E. PARKER | |||
By: | /s/ Alexander E. Parker | August 2, 2021 | |
Name: | Alexander E. Parker | ||
VALERII MANSUROV | |||
By: | /s/ Valerii Mansurov | August 2, 2021 | |
Name: | Valerii Mansurov | ||
VLADIMIR KOVALENKO | |||
By: | /s/ Vladimir Kovalenko | August 2, 2021 | |
Name: | Vladimir Kovalenko | ||
KHARKOV ALEKSANDR SERGEEVICH | |||
By: | /s/ Kharkov Aleksandr Sergeevich | August 2, 2021 | |
Name: | Kharkov Aleksandr Sergeevich | ||
THOMAS GITTER | |||
By: | /s/ Thomas Gitter | August 2, 2021 | |
Name: | Thomas Gitter | ||
ELENA TSYGANKOVA | |||
By: | /s/ Elena Tsygankova | August 2, 2021 | |
Name: | Elena Tsygankova | ||
VLADISLAV DIKII | |||
By: | /s/ Vladislav Dikii | August 2, 2021 | |
Name: | Vladislav Dikii | ||
DANILIUK KIRILL VLADIMIROVICH | |||
By: | /s/ Daniliuk Kirill Vladimirovich | August 2, 2021 | |
Name: | Daniliuk Kirill Vladimirovich | ||
ROMAN DONTSOV VALENTINOVICH | |||
By: | /s/ Roman Dontsov Valentinovich | August 2, 2021 | |
Name: | Roman Dontsov Valentinovich | ||
ALEXEY EVGENEEVICH ILINYKH | |||
By: | /s/ Alexey Evgeneevich Ilinykh | August 2, 2021 | |
Name: | Alexey Evgeneevich Ilinykh | ||
ALEXEY ISAEV | |||
By: | /s/ Alexey Isaev | August 2, 2021 | |
Name: | Alexey Isaev | ||
ALEXANDER KOCH | |||
By: | /s/ Alexander Koch | August 2, 2021 | |
Name: | Alexander Koch | ||
JAMES JONATHAN JOSEY | |||
By: | /s/ James Jonathan Josey | August 2, 2021 | |
Name: | James Jonathan Josey | ||
PRADEEP VASUDEVA KADAMBI | |||
By: | /s/ Pradeep Vasudeva Kadambi | August 2, 2021 | |
Name: | Pradeep Vasudeva Kadambi | ||
KIMBERLY TULLY | |||
By: | /s/ Kimberly Tully | August 2, 2021 | |
Name: | Kimberly Tully | ||
EDGARD GAFUROV | |||
By: | /s/ Edgard Gafurov | August 2, 2021 | |
Name: | Edgard Gafurov | ||
JOAN I. BARRY REVOCABLE TRUST (DTD. 12/13/13) | |||
By: | /s/ Janice J. O'Connor | August 2, 2021 | |
Name: | Janice J. O'Connor | ||
Title: | Co-Trustee | ||
ZAVOLOZHIN SERGEY VLADIMIROVICH | |||
By: | /s/ Zavolozhin Sergey Vladimirovich | August 2, 2021 | |
Name: | Zavolozhin Sergey Vladimirovich | ||
JAMES PAUL CAREY | |||
By: | /s/ James Paul Carey | August 2, 2021 | |
Name: | James Paul Carey | ||
JANICE J. O'CONNOR | |||
By: | /s/ Janice J. O'Connor | August 2, 2021 | |
Name: | Janice J. O'Connor | ||
YUSHENKOVA OLGA PETROVNA | |||
By: | /s/ Yushenkova Olga Petrovna | August 2, 2021 | |
Name: | Yushenkova Olga Petrovna | ||
VANIK PETROSIAN | |||
By: | /s/ Vanik Petrosian | August 2, 2021 | |
Name: | Vanik Petrosian | ||
RICHARD BARRY | |||
By: | /s/ Richard Barry | August 2, 2021 | |
Name: | Richard Barry | ||
VICTOR VIKTOROVICH BORODAENKO | |||
By: | /s/ Victor Viktorovich Borodaenko | August 2, 2021 | |
Name: | Victor Viktorovich Borodaenko | ||
IGOR GNATIV | |||
By: | /s/ Igor Gnativ | August 2, 2021 | |
Name: | Igor Gnativ | ||
CARLEEN WALSH | |||
By: | /s/ Carleen Walsh | August 2, 2021 | |
Name: | Carleen Walsh | ||
ALEKSANDR ALEKSANDROVICH MOROZOV | |||
By: | /s/ Aleksandr Aleksandrovich Morozov | August 2, 2021 | |
Name: | Aleksandr Aleksandrovich Morozov | ||
ANDREW GRUBER | |||
By: | /s/ Andrew Gruber | August 2, 2021 | |
Name: | Andrew Gruber | ||
DENIS BAYKIN | |||
By: | /s/ Denis Baykin | August 2, 2021 | |
Name: | Denis Baykin | ||
RYZHOV EVGENII NIKOLAEVICH | |||
By: | /s/ Ryzhov Evgenii Nikolaevich | August 2, 2021 | |
Name: | Ryzhov Evgenii Nikolaevich | ||
CHRIS TICHENOR | |||
By: | /s/ Chris Tichenor | August 2, 2021 | |
Name: | Chris Tichenor | ||
VICTOR PARDO | |||
By: | /s/ Victor Pardo | August 2, 2021 | |
Name: | Victor Pardo | ||
OKSANA DMITRIEVNA TROFIMOVA | |||
By: | /s/ Oksana Dmitrievna Trofimova | August 2, 2021 | |
Name: | Oksana Dmitrievna Trofimova | ||
ALEKSEI GUDZ | |||
By: | /s/ Aleksei Gudz | August 2, 2021 | |
Name: | Aleksei Gudz | ||
ALEX PETER WOUNLUND | |||
By: | /s/ Alex Peter Wounlund | August 2, 2021 | |
Name: | Alex Peter Wounlund | ||
PETR HOFEREK | |||
By: | /s/ Petr Hoferek | August 2, 2021 | |
Name: | Petr Hoferek | ||
JOHN V. BARRY REVOCABLE TRUST (DTD. 12/13/13) | |||
By: | /s/ Janice J. O'Connor | August 2, 2021 | |
Name: | Janice J. O'Connor | ||
Title: | Co-Trustee | ||
NEPIYVODA KIRILL NIKOLAEVICH | |||
By: | /s/ Nepiyvoda Kirill Nikolaevich | August 2, 2021 | |
Name: | Nepiyvoda Kirill Nikolaevich | ||
MARY DUNNE | |||
By: | /s/ Mary Dunne | August 2, 2021 | |
Name: | Mary Dunne | ||
ALEKSEI CHERNYSHEV | |||
By: | /s/ Aleksei Chernyshev | August 2, 2021 | |
Name: | Aleksei Chernyshev | ||
ISRAEL LARRONDO | |||
By: | /s/ Israel Larrondo | August 2, 2021 | |
Name: | Israel Larrondo | ||
DAVID LAMB | |||
By: | /s/ David Lamb | August 2, 2021 | |
Name: | David Lamb | ||
New York Headquarters | Mr. Alexander E. Parker |
1185 Avenue of the Americas, Floor 3 | Senior Managing Director |
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com |
T. +1 (212) 951-1530 | |
F. +1 (212) 641-4349 |
VIA REGISTERED U.S. POSTAL MAIL & ELECTRONIC MAIL
stephen.ranalow@arthurcox.com; board.directors@mnk.com; jane.m.leamy@usdoj.gov; info@odce.ie;
marian_lynch@odce.ie; xana_mccarthy@odce.ie; suzanne_gunne@odce.ie; ian_drennan@odce.ie;
October 14, 2021
Mr. Stephen Ranalow
Arthur Cox LLP
Ten Earlsfort Terrace
Dublin 2
D02 T380
Ireland
Former Directors - All Members | Ms. Joann Reed, Interim Director |
Mallinckrodt Plc. | Mr. Carlos V. Paya, M.D., Ph. D., Interim Director |
53 Frontage Road, Shelbourne Building | Mr. Angus Russell, Former Chairman |
Hampton, N.J. 08827 | Mr. J. Martin Carroll, Former Director |
Mr. Paul R. Carter, Former Director | |
Mr. David Norton, Former Director | |
Ms. Anne C. Whitaker, Former Director | |
Mr. Mark Trudeau, Former Director | |
Mr. Kneeland Youngblood, Former Director | |
Mr. David Carlucci, Former Director | |
Attn: Office of the Whistleblower | |
ENF-CPU (U.S. Securities & Exchange Commission) | |
14420 Albemarle Point Place, Suite 102 |
|
Chantilly, VA 20151-1750 |
Attn: Ms. Jane M. Leamy
Office of the United States Trustee
U.S. Department of Justice
844 King Street, Suite 2207
Wilmington, DE 19801
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
16 Parnell Square | Ms. Xana McCarthy, Investigator |
Dublin 1 | Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland | Mr. Ian Drennan, Director of Corporate Enforcement |
Re: September 17, 2021, Response Letter - "Mallinckrodt Plc. and The Buxton Helmsley Group, Inc."
Mr. Ranalow:
This letter is being sent to you, with firm address to the Mallinckrodt Plc. (the "Company") (former, dismissed) board of directors (the "Dismissed Board") as well, in response to your September 17, 2021, response letter to The Buxton Helmsley Group Inc.'s ("BHG") September 14, 2021, letter (made public in BHG's 13D filing processed by the U.S. Securities and Exchange Commission (the "Commission") on September 15, 2021). It is ever clear your sense of guilt in response to the allegations made by BHG, given that you took the time to respond, and ever so emptily and untruthfully; your letter wreaks of culpability. By the end of this response letter, the public (being this letter is being sent in open form as part of another 13D filing) will very much understand that it is not BHG with such a misunderstanding of Irish law, but one of the top law firms in Ireland (and its lawyers), assisting their clients in evasion of law through giving corrupted lip service, to dishonorably ensure the continuance of multimillion dollar checks from the Company for legal fees to be paid to Arthur Cox. BHG will engage in no action during U.S. proceedings (this letter serves to put you on mere notice during those proceedings, to prove how willful the Company's illegal conduct was/is once you reach Ireland). The sheer nerve of this Company wishing to brazenly air out their lies, illegal conduct, and absolute disrespects of Irish law (as a result of your creative use of a foreign court), in an Irish court, is simply remarkable, and I do not say that positively. I do not think the Irish will take well to such a mockery of the purpose and intention of Irish company law (and accordingly expected ethical conduct), just because it has headquarters in America; this Company is not entitled to incorporate in Ireland for the tax breaks and disregard the obligations and regulations they committed to at the time of incorporation. The most serious violations of Irish law have already been validated by BHG's Irish counsel, who will be appearing before the Irish High Court, should this Company attempt voluntary application for entry into Irish examinership proceedings, in further, willful violation of your obligations under the Companies Act of 2014 (the "Companies Act"), § 1111, and the Company's Articles of Association, § 91 (as detailed below). Sweepingly and emptily saying BHG's pointed out violations of this Company have no merit, especially when you refuse to respond with any support to such rejection of the allegations (because you have no justification), and hoping the issues go away, is not going to end well for this Company's board and management, with their individual violation of the Companies Act § 1111, alone, carrying imprisonment, as it is. As we will cover later, your September 17, 2021, response letters' comments surrounding this Company's directors' violation of the Companies Act § 1111, just dug their hole even deeper, and - in fact - more senior partners at your own law firm do not even agree with you.
Let's first start with your violation of Irish law that took place (and continues to take place) before you even entered chapter 11 proceedings. You, very simply, entered chapter 11 proceedings, unlawfully, in violation of the Companies Act § 1111, by failing to hold the (under that statute) statutorily required obligation of an extraordinary general meeting of Mallinckrodt Plc. shareholders, upon it being "known" to "a director" that "net assets had breached below half of paid-up share capital", for the purpose of coming up with a plan "to deal with the situation" that was derived from the constituency that would be present at that extraordinary general meeting; your shareholders.
The Companies Act, § 1111 (titled "obligation to convene extraordinary general meeting in event of serious loss of capital"), very clearly states:
(1) Where the net assets of a PLC are half or less of the amount of the PLC's called-up share capital, the directors of the PLC shall, not later than 28 days after the earliest day on which that fact is known to a director of the PLC (the "relevant day"), duly convene an extraordinary general meeting of the PLC.
(2) That extraordinary general meeting shall be convened-
(a) for the purpose of considering whether any, and if so what, measures should be taken to deal with the situation; and
(b) for a date not later than 56 days after the relevant day.
(3) If there is a failure to convene an extraordinary general meeting of a PLC as required by subsections (1) and (2), each of the directors of the PLC who-
(a) knowingly and intentionally authorises or permits that failure, or
(b) after the expiry of the period during which that meeting should have been convened, knowingly and intentionally authorises or permits that failure to continue,
shall be guilty of a category 3 offence.
(4) Nothing in this section shall be taken as authorising the consideration, at an extraordinary general meeting convened in pursuance of this section, of any matter which could not have been considered at that meeting apart from this section.1
Directly your words, Mr. Ranalow: "We refer BHG, in particular, to the audited financial statements of the Company for the fiscal year ended 25 December, 2020, and in particular to the Company's balance sheet set out therein, which clearly demonstrates that the test under section 1111 has not been met". Your defense to not holding the statutorily required extraordinary general meeting under the Companies Act, § 1111, is because this Company and its auditors are publishing financial statements certifying the existence of $12.03/share in net assets (stated "shareholder's equity"), while you continue to claim that net assets belonging to shareholders are "hopelessly" nonexistent in the United States Bankruptcy Court? It sounds like you need to take the most basic finance course if you do not understand that "hopeless insolvency" (as this Company is claiming) means that net assets just as "hopelessly" do not exist. So, while you claim that BHG was misleading investors by referencing the net assets on the balance sheet for a reliable measure (and sued them for doing so), you are now going to refer investors (as you did BHG, in your September 17, 2021, letter) to the balance sheet for a reliable measure of net assets (i.e., "shareholder's equity", after subtraction of any "probable" liabilities, pursuant to FASB ASC topic 450-20-25-2)? So, are you now misleading for referring BHG to the balance sheet that was supposedly misleading for BHG to be referring investors to before? You can rely on the stated net assets on the balance sheet, but shareholders cannot? This Company is ensnared in such a tangled web of fraud related to statements of financials that you cannot even keep a story straight. Do you, or do you not have net assets for shareholders, very simply? Answer a question, straight and simply. Multiple statements of financials is fraud (which you, Mr. Ranalow, are perpetrating that fraud, on behalf of the Company). If you want to claim that the stated "shareholder's equity" on the balance sheet is a reliable figure, then your claims all thus far of "hopeless insolvency" (there is no difference between a verbal and written statement of financials) were entirely fraudulent representations to the United States Bankruptcy Court. Thank you for now privately admitting to BHG that this Company's claims of being "hopelessly insolvent" before the United States Bankruptcy Court were entirely false and fraudulent. Not even your auditors believe your "hopelessly" existent liabilities are even "probable" enough to be accrued and recognized in the accounting records of the Company.
Funny enough, Mr. Ranalow, one of your senior partners at Arthur Cox, Dr. Thomas B. Courtney, who advised the Irish government on its development of the Companies Act of 2014, as so astutely noted on his Arthur Cox website biography, wrote and edited one of the leading legal textbooks on Irish company law (covering far beyond the Companies Act itself), which includes a very firm explanation of the statutory obligation of Irish directors under the Companies Act § 1111.
Directly from Courtney's "The Law of Companies (Fourth Edition)":
________________________________________
1 Companies Act of 2014, § 1111: http://www.irishstatutebook.ie/eli/2014/act/38/section/1111/enacted/en/html#sec509
"the obligation is an ongoing one that arises whenever a director knows that the net assets are half or less of the PLC's share capital - it is not dependent on the annual financial statements demonstrating that fact, and it is not necessary, and it is not necessary to wait for them to confirm it … It is arguable that knowledge by the directors that there is a serious loss of capital is a subjective requirement, and that a director's knowledge or belief that contradictory circumstances exist (e.g. where a director knows that the value of non-current assets is understated in a draft balance sheet) the obligation should not apply."2
So, not even your senior partner at Arthur Cox, responsible for the development of the Companies Act, agrees with you on your bogus statement that the balance sheet needs to match the claimed fact supposedly "known" by this Company's directors and management that net assets have (again, supposedly) breached below half of paid-up share capital. You are destroying your credibility when you contradict the own opinion of senior partners at your firm far more qualified to speak on the topic than you are. You are not doing this Company's directors a service when you are setting them up for up to 6 months of imprisonment and fines. Very simply, Arthur Cox directly agrees with BHG that this Company, in fact, submitted to jurisdiction of the United States on illegal pretenses, in violation of the Companies Act § 1111.
The reason why this Company's board of directors did not hold that statutorily-required extraordinary general meeting to get support of its voting members (the shareholders) "to deal with the situation" was because they knew that shareholders would never support a plan to submit to jurisdiction of the United States, so that you could spend ~$40mm/month in legal fees on a plan that capriciously threw in the towel on contingent liabilities that you (nor your auditors) did not regard as even "probable" enough (pursuant to FASB ASC topic 450-20-25-2) to be on the balance sheet, falsely labelling them as "hopelessly true", so that you could equitize every bit of debt possible at the expense of those for which are harmed by such capricious equitization (without their authorization to execute such a voluntary act), and only for the benefit of management to exit a reorganization with a lighter balance sheet at the expense of those involuntarily impaired creditors and shareholders. That is not upholding your fiduciary duty to shareholders or creditors that you are attempting to impair, so cut the load of bologna that you are upholding your fiduciary duties to even creditors. Your most basic fiduciary duties are to only execute the voluntary acts that are authorized by your shareholders (and, if you question whether or not they would approve of such a resolution, you hold a vote of the ultimate voting constituency, your shareholders, pursuant to the Articles of Association § 91) and following the law. At the statutorily required, defaulted-on Companies Act § 1111, extraordinary general meeting required to be held for shareholders to decide on a plan "and if so what, measures should be taken to deal with the situation", shareholders had the right to decide which voluntary plan would be executed by directors (as "service" providers, even according to the Articles of Association § 82), on behalf of the shareholders - they do not have the right to obstruct the "interests of the Company" demonstrated at a shareholder meeting, in violation of the Companies Act § 212, at any time. Directors are mere "service" providers (again, see Articles of Association § 82), not dictators that can override their constituency when they believe they have superior judgement - that is not a democracy, and a dictatorship, no matter whether those "service" providers believe their way of thinking is right or not. Such a move would be equivalent to a United States president ending any further democratic votes, on a position that he believed he knew a better plan forward for the nation than any possible future leader. If those "service" providers were unwilling to execute the demonstrated "interests of the Company" (via a shareholder vote, which is the only way to quantitatively resolve the interests of the Company), as part of the extraordinary general meeting under the Companies Act § 1111, as the "service" provider they are to the Company's shareholders, they had the option to either voluntarily resign to allow for new "service" providers (directors) to the shareholders to assume the liability of executing that chosen path forward (that quantitatively defined "interests of the Company"), or else - if they refused to resign - allow the democratic course of process of a shareholder meeting for shareholders, holding a vote to remove and replace directors, to quantitatively, concretely affirm that the new path forward was in the "interests of the Company". In the meantime, until that shareholder vote was had, to concretely determine that any such plans proposed by the directors did not "may conflict with the interests of the Company", by a resolution to be voted on, describing that alternative (to the directors' initial) path forward proposed by shareholders, or allowing for voting on a resolution to make present director modifications (dismissing/replacing one or more directors from office), directors executing any voluntary plans for which were opposed at that Companies Act § 1111 meeting more than "may conflict with the interests of the Company", which would require their recusal, as directors, from self-voting (without a full poll of the ultimate voting constituency) to authorize/execute their proposed, opposed, initially set forward proposal of plans "to deal with the situation" at that extraordinary general meeting, statutorily required pursuant to the Companies Act § 1111. Any other course of events would be a deviation from the "interests of the Company" (which, if questioned at all as to whether a resolution would conflict with those "interests", would require a vote of the ultimate, foundational voting constituency - the shareholders), in violation of their fiduciary duty as a "service" provider executing the only the authorized, voluntary plans of their voting constituency, and oppression of shareholder interests in violation of the Companies Act § 212. Any deviation of those "service" providers (directors) acting on behalf of the shareholders that hired those "service" providers, entrusted with the fiduciary duty of only voluntarily executing those actions/plans that are assured not to "may conflict with the interests" of their voting constituency, or otherwise requiring a poll of their voting constituency if they even think that their contemplated actions/plans "may conflict with the interests of the Company" or "in which he has, directly or indirectly, an interest which is material" even possibly, are a violation of their fiduciary duties, very simply, and especially when it is statutorily required that they receive shareholder input and backing of plans at such a time. Without majority support of any such proposed resolution, those "service" providers, executing only the authorized on behalf of the voting constituency representing the "interests of the Company", may not carry it forward against the will of those that concretely, quantitatively demonstrate the "interests of the Company"; the shareholders. You have not upheld a fiduciary duty to any party except those who are prejudicially the beneficiaries of your creditor preference violations, which is violation of your fiduciary duties to all other parties you owe an equal fiduciary duty to. Your senior partner, Mr. Courtney, also wrote about this very topic of the fiduciary duties of directors at a time of insolvency:
________________________________________
2 The Law of Companies (Fourth Edition), Thomas B. Courtney [31.206].
Directly from Courtney's "The Law of Companies" (Fourth Edition):
"Where the directors of a company become aware that it is insolvent, there is authority for the following propositions:
(i) The directors have a duty to have regard to the interests of creditors;
(ii) The directors have a duty to put the company into creditors' voluntary liquidation;
(iii) The directors have a duty to preserve the company's assets so that they can be applied pro tanto in discharge of its liabilities; and
(iv) The directors have a duty not to make payments directly or indirectly to themselves to the detriment of the general and independent creditors."
Yet again, Mr. Ranalow, you contradict the senior partner at your law firm when you claim that this Company's directors are upholding their fiduciary duties, when he was the backbone for the conduct at Irish companies that the Companies Act was/is intended to ensure. Point-by-point, in line with Mr. Courtney's ordered points:
(i) "The directors have a duty to have regard to the interests of creditors". This Company's directors have a duty to regard the interests of creditors, not mere claimants with such an improbable claim that the auditors of this Company do not even accrue their claims and recognize them in the accounting records of the Company. "Regard the interests of creditors" also does not mean take a dictatorial role, oppressing/coercing your shareholders in violation of the Companies Act § 212. When you put the interests of creditors "probable" enough to be on the balance sheet (such as the holders of the 2023 notes you want to extinguish) behind the interests of mere claimants, with a claim not even "probable" enough to be accrued in the accounting records of the Company (to the extent of capriciously extrapolating their liabilities into the "trillions"), you are violating your fiduciary duties to creditors and all "probable" enough economic interests to be listed on your balance sheet. Further, it says "have regard to the interests of creditors". That does not say you have the right to abandon shareholder interests and put claims not even "probable" enough to be recognized in the accounting records of the Company ahead of the economic interests of those shareholders for whom you have a cemented, absolute fiduciary duty to. You do not owe a fiduciary duty to claimants when your own auditors do not even believe the claims to be valid enough to be "probable" enough to be accrued in the accounting records, very simply, and you are violating your fiduciary duties when you give such "improbable" claims such inappropriate preference before those whom you have an absolute fiduciary duty to. It is not hard for one to conclude that your suspicious preference of mere claimants not even "probable" enough to be accrued in the accounting records of the Company, given they are attached to criminal allegations, are a de facto hush money payment to fend off criminal investigations of acts under the oversight and ultimate culpability of this Company's present directors and management. That is not the point of the United States bankruptcy code (using the bankruptcy process as a litigation tactic is not even permissible, let alone using it as a tactic to avoid criminal charges). Shareholders have the right to investigate those allegations, and recover those Company damages from those responsible for such criminal conduct, if it is true.
(ii) "The directors have a duty to put the company into creditors' voluntary liquidation". This defaulted-on duty goes together with your long-defaulted on obligation under the Companies Act § 1111. The minute it was "known" to "a director" that net assets had supposedly breached below half of paid-up share capital, directors of the Company had a fiduciary duty to immediately uphold your statutory obligation under the Companies Act § 1111, to swiftly come up with a voluntary plan of the Company, with the input and backing of those who have the ultimate incentive for maximizing value throughout the entirety of the capital structure; your shareholders. Yet, you did not uphold that duty. You, instead, decided you would violate the Companies Act § 1111, begin developing and negotiating a plan behind the backs of your shareholders, that was never authorized by shareholders, submit the Company (again, without authorization from shareholders) to the jurisdiction of a foreign Company, freeze them out of their own Company, strip them of their rights, bar them from reporting your violations to the High Court of Ireland without expensive litigation to fight for the ability to seek Irish High Court intervention, and otherwise. Your illegal conduct and acts of bad faith to perpetrate are disgraceful. Rather than develop a plan that would properly take into account the interests of all stakeholders (without giving mere claimants, with not even "probable" liabilities to the Company, an incorrect fiduciary duty), with shareholder input to ensure an absolute incentive for exploring all possibilities to know, without a doubt, that value was being unequivocally maximized throughout the entirety of the capital structure at such a time of great attention being needed to coming up with such a plan, you wished to violate the law numerous times over, and commit numerous counts of fraud (far beyond electoral fraud, with other instances detailed later) to perpetrate your plan. Had you held that statutorily required extraordinary general meeting, it would have prevented the numerous strategic alternatives which were failed to be explored by this board (which directors would have explored, had they been financially impacted by any of their decisions, had they been holding the required amount of common stock, per the ongoing ownership "requirement" of directors, pursuant to the compensation plan), at the expense of all stakeholders being impaired (far beyond shareholders). Had you held that statutorily required extraordinary general meeting, shareholders, however, shareholders would have fired you on the spot if you began with a plan that involved prejudicially wiping out creditors "probable" enough to be accrued and recognized in the accounting records of the Company, while giving billions to mere claimants that were not even "probable" enough liabilities to be recognized in accounting records, and at the ultimate expense of those whom started and funded this Company, elected you into office, and whom you have an absolute fiduciary duty to ahead of "improbable" mere claimants; your shareholders. You knew that you would have been fired on the spot, just as shareholders exercised their rights to at the August 13, 2021, annual general meeting, as fraudulent as it was, and for which you still infringe on the admitted right of shareholders to call an extraordinary general meeting to "nominate" and "replace" dismissed directors with "successors" "elected" by shareholders.
(iii) "The directors have a duty to preserve the company's assets so that they can be applied pro tanto in discharge of its liabilities". This might, just possibly (much sarcasm), include directors, while they are negotiating a "plan to deal with" the situation behind the backs of their shareholders (in violation of the Companies Act § 1111), with it being "known" to them that they were insolvent enough to need to come up with such a plan, while, before declaring insolvency, out of mere self-interest, having terminated all director and officer equity compensation (a clear point at which directors did not even see equity being worth anything if they were paid in the form of equity for their services), begin pillaging the Company of its hard assets (cash), with an all-cash compensation plan, over the months leading up to them pulling the rug out from under their stakeholders, again, in a direct breach of fiduciary duty to preserve the Company's assets, and in stark evasion of their statutory obligations under the Companies Act § 1111.
(iv) "The directors have a duty not to make payments directly or indirectly to themselves to the detriment of the general and independent creditors". Going hand in handcuffs (for the directors) with the last stated duty of shareholders, you further pillaged the pot of hard assets at a time of clearly knowing equity was not worthy anything (to the point that you refused to even be paid in the form of it), "mak[ing] payments directly to [directors] to the detriment of the general and independent creditors", both as part of the mentioned all-cash compensation plan instituted in April 2020, and also via your "bonuses" just before pulling the rug out from under all stakeholders, announced as approved via the 8-K filing of the Company on September 8, 2020 (even noting it was because of an impending, undisclosed chapter 11 filing, which demonstrates absolute guilt you knew why you were taking the assets, ahead of declaring the knowledge of insolvency that you knew for months before, and evaded the Companies Act § 1111, as part of such knowledge).3
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3 8-K filing announcing "bonuses" to directors just one month prior to filing for chapter 11 protection: https://www.sec.gov/ix?doc=/Archives/edgar/data/1567892/000156789220000054/mnk-20200901.htm
So, when you, Mr. Ranalow, claim that this Company's directors are upholding their fiduciary duties, these directors are not upholding even one of the duties that were explicitly outlined by your senior partner, Dr. Thomas B. Courtney. And they are not even following the law, in the midst of their unlawful authorization of chapter 11 plans alone, in violation of the Companies Act § 1111. Such corrupt lip service on your part, Mr. Ranalow, preposterously claiming this Company's directors' actions are because of their commitment to their fiduciary duties (much sarcasm), is self-destruction of your credibility and perceived personal integrity. The entire point of the Companies Act § 212, is to provide the power and a tool to those with the ultimate incentive for maximizing value across a Company's structure (the shareholders), to replace directors in light of such failures, misconduct, and violations of the law on the part of a company's directors. When even your senior partner at Arthur Cox is of the position that you are in violation of the Companies Act § 1111, and you are not even in compliance with one (not even one, out of four) of the fiduciary duties of directors at a time of claimed insolvency such as now (though, again, you just admitted net assets exist, now directing BHG to reference the balance sheet you sued us for referencing before), you do not get to say "it is untenable and unreasonable to continue to maintain an argument that the directors are in breach of their duties by simply acting in accordance with the law." You are not acting in accordance with the law, in violation of multiple laws, and are not fulfilling any of your fiduciary duties to even creditors, let alone your obligations to shareholders.
Now let's cover the preposterous argument where you say you think it is "noteworthy" that BHG has not returned to the U.S. Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") to force this Company's Dismissed Board's hand of acting in compliance with Irish law, as you privately admit guilt in such violations of Irish law through private letters. If shareholders need to babysit their fiduciaries to keep them on the straight and narrow, and they refuse to do so at their own free will, that is the exact time when shareholders, as a normal course of democracy, will naturally wish to replace them, and is the exact reason why all directors of the Company were voted out at the August 13, 2021, annual general meeting (though, you still infringe on our admitted shareholder rights to "replace" the skeleton board with "successors" "elected" by the shareholders). Regarding the shareholder injunction, BHG thinks it is noteworthy (much sarcasm) that:
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4 "Electoral Fraud" - Wikipedia.org (See "intimidation"): https://en.wikipedia.org/wiki/Electoral_fraud#Intimidation
This Company's directors are preying on the Company-admitted rights of thousands of shareholders whom they have a fiduciary duty to, to not oppress the free exercise of rights of (as you admitted, those rights protected under the Companies Act and Mallinckrodt Plc. Articles of Association), in violation of the Companies Act § 212. It is not the obligation of shareholders to fend off illegal conduct of this Company's directors - it is your obligation to, without being forced to, comply with the statutory prohibition of shareholder oppression. If your intended argument in Ireland is that shareholders did not spend every dollar we had in the United States Bankruptcy Court because you refused to cure your willfully violating behavior, while you already froze shareholders out of the Irish High Court (from reporting this Company's violations and for relief) during the pending unauthorized, unlawfully (in violation of the Companies Act § 1111) and invalidly (in violation of the Company's Articles of Association § 91) commenced, chapter 11 proceedings, good luck with that one. If your plan also is to show up to the High Court with a chapter 11 confirmation that was derived from illegal conduct (starting with your very preliminary evasion of the Companies Act § 1111, and follow-on coercion/oppression of all shareholders to perpetuate your evasion of that statute) and fraudulent statements (such as your false claim of "hopeless insolvency", when you are now admitting that "probable" net assets do indeed exist, given your referencing of the balance sheet you already sued BHG for referencing the net asset figure of before), good luck with that one, too. That is like a kid (this Company's directors) gloating to their parents (the Irish High Court) about getting an "A" on their test at school (confirmation of U.S. chapter 11 proceedings), when the parent had received a call from the teacher as the student was homebound after the school day, to be told that their child cheated to get the "A" (this Company's numerous violations of Irish law, fraudulent statements of financials, insider trading, proxy fraud, illegal shareholder oppression, violations of fiduciary, and electoral fraud, leading up to and during these chapter 11 proceedings to get the rubber stamp on their reorganization plan). You do not reward the child for their cheating, and you discipline them for that conduct. The time that cheating begins getting rewarded on any level (especially in an arena that affects the financial lives of those harmed from such cheating) will open the floodgates of such misconduct at all Irish companies. I have no doubts that the High Court of Ireland will discipline this Company's directors and management by not only refusing their entry into examinership in light of such bad-faith, fraud, and violations of the law, but hold them absolutely responsible for their conduct (which, on grounds of their misconduct related to the Companies Act § 1111 alone, means up to 6 months in prison). If you want to substantiate why any confirmed plan should be considered as part of your application to Irish examinership proceedings with that $400+mm has already been spent by the Company's directors and management through the course of their breaches and violations to cheat their way to the finish line, at the expense of those whom they have a fiduciary duty to, then thank you for also pointing out the dollar amount of personal liability the High Court of Ireland should peg on this Company's directors. They should be ashamed and be held personally liable for every dollar they spend every day through the course of their misconduct and illegal behavior. These directors bringing a supposed confirmation of some proposed reorganization plan, only derived from and approved after such misconduct, is only to be disciplined - not rewarded. This Company's actions and representations are fraudulent, deceptive, and reprehensible, over and over. And, Mr. Ranalow, your attempts to get them to the finish line means you are just as complicit in those violations and acts of fraud. You are a part of getting them to the finish line, and it is not admirable. Just as Arthur Andersen was held as complicit in perpetrating the unlawful acts of Enron, so should you, Mr. Ranalow, for - as a steward of Irish law - allowing for these illegal and unlawful acts to take place under your watch, and your trying to cover them up. Deloitte & Touche should also be held liable for standing behind this Company's directors and management, in silence, as this Company makes statements of shareholder's equity being "hopelessly" nonexistent; a statement that not even Deloitte & Touche certifies to agree with. When your clients engage in unlawful acts, you do not stand behind them. That is abandoning ethics and overlooking illegal/fraudulent activity, for the sake of just as ill-gotten financial gains. Such complicities also apply to Broadridge for standing behind such "electoral fraud" via "intimidation", as verified as such via even the broad consensus of Wikipedia. Their turning a blind eye and refusing to "opine" on such tampering of an election before the ballots are even sent out is truly revolting, and they had an obligation to put ethics before financial gains as an auditor of the election and meeting outcome's truthfulness.
Regarding your assertion, Mr. Ranlow, that there was no "electoral fraud" (and I am not going to spend much time here, as your statement that there was no electoral fraud is utter nonsense, and not even the broad consensus of Wikipedia agrees with you, classifying your "electoral fraud" as "intimidation" via threats of litigation and being held in contempt of court), let us take note that the very actions of "elect[ing]", "remov[ing]", "replac[ing]", "nominat[ing]", and/or "propos[ing] any matters to be acted upon by Mallinckrodt Plc. shareholders", were all activities prohibited to be engaged in by "any person or entity", "acting in concert", whether "directly or indirectly", for which the Company could prejudicially label "any person or entity" as such. Again, that means that Broadridge, Inc. even violated the order by "acting in concert", ever-so-"directly" with shareholders, providing shareholders with the materials to "facilitate" the "remov[al]" of "directors". They also violated the order by supplying ballots that "propose[d] matters to be acted upon by Mallinckrodt shareholders". And you want to claim that not every shareholder was then being oppressed, when the prohibited actions even easier apply to Broadridge, too? That's a load of bogus, and you are lying through your teeth. And Broadridge is just as complicit in the electoral fraud, as they certified the inspection as not being tampered when ballots were barred from even being cast, shareholders were barred from acting on the proxy materials to submit the fraudulently "solicited"/requested director nominations and shareholder proposals, leaving the ballots entirely tampered before they even got into the hands of shareholders. Broadridge is dually culpable in the electoral fraud, very simply. They had a moral obligation to recuse themselves from certifying the election results when the election conditions already constituted "electoral fraud" via "intimidation" of threats to hold shareholders in contempt of court if they exercised the shareholder rights that on August 2, 2021, you so ironically claim are not to be obstructed and are subject to the Companies Act and Articles of Association. I am also surprised Broadridge did not recuse themselves, given that they also violated the order themselves, very clearly, on top of perpetrating a fraudulent election, and BHG has e-mails that they knew about the conditions of electoral tampering. So, when you say that you are not aware of ballots not being counted, you were threatening shareholders with contempt of court if they even submitted the ballots, director nominations, and shareholder proposals. The "election" and meeting results was a total fraud before the ballots even went out. And, again, you committed proxy fraud by never even disclosing the shareholder injunction in the July 2, 2021, proxy statement. The fact that Broadridge stood behind this Company's electoral fraud, even according to the broad consensus of Wikipedia, is absolutely appalling and reprehensible. You all put financial gains ahead of ethics at every turn and I cannot even fathom the disgust that it brews within me. You should be ashamed.
Let us point out that the Company's directors have a duty to listen to the Company's shareholders, and not deviate from their wishes/interests, in regard to any voluntary actions of this Company. If the directors do not agree with the interests/wishes of the shareholders and refuse to carry them out (for whatever reason), that is their cue to resign, and allow for others to take on the role of directorship, which means those new directors will be required to assume the fiduciary duty they are taking over, and they will be held liable if they do not uphold that fiduciary duty. These directors have no right to override that right to democracy of this Company in an attempt to assert that they have superior knowledge or decision power over those who are the democratic voices in this Company; its owners (again, who own now nearly 100% of this Company's stock, as compared to this Company's directors' and managements' near zero vested interest in this Company, with no impact by their decisions they are so capriciously and corruptly making). The time when shareholders of a Company divest of their shares, is the time when they fractionally (according to their divesture) lose their power and voice in the democracy, and this Company's directors are not above that consequence of losing power the democracy upon divesture of their shares (or lack of ownership of shares to hold the power that they wish to have). Such an exemption from the laws of this Company's democracy would mean we have entered a dictatorial regime, and I think the High Court of Ireland will agree that we effectively have, and in violation of the Companies Act § 212, which statutorily prohibits such use of the powers of the directors to oppress and control their constituency, to suppress a democracy. I ask you, Mr. Ranalow: Where in the Companies Act or Articles of Association does it allow the directors to oppress the interests of shareholders (in other words, where is there an exemption to the Companies Act § 212?), with those directors having a right to autocratically muzzle the interests of their shareholders and autocratically instate a de facto conservatorship over every shareholder of the Company, where the decisions of the Company's shareholders would be ultimately dictated and overruled by the Company's directors? Such a dictatorial ruling of directors overriding their shareholders is the exact reason the Companies Act § 212 exists; to prohibit such oppressive forces of the directors from disturbing a company's democracy. And again, when your injunction meant to govern shareholders can easily be extended to govern even the conduct of non-shareholders, such as Broadridge, due to its disgustingly broad wording, you do not get to claim you are not in violation of the Companies Act § 212. You also do not get to say that you did not mean for it to oppress the rights of every shareholder when you say "any person or entity". BHG's counsel, numerous times, requested to pare down the shareholder injunction, and you refused to. This Company's directors now get to sit in the mess they made and endure the consequences of such illegal actions and fraud to perpetrate those illegalities. You have already "irreparably harmed" (this Company's favorite words) your shareholders, through your illegal infringing of shareholder rights all thus far, to the point of no return. Again, it is not the job of this shareholder base to babysit its fiduciaries and keep them on the straight and narrow. The need for us to do so is why we contemplated removing fiduciaries so long ago long, and - in fact - voted to dismiss them at the August 13, 2021, annual general meeting, though they entirely disregarded that quantitatively-defined demonstrated "interests of the Company" as well, dictatorially refusing to relinquish power and voting to reinstate an unchanged board, in further violation of this Company's Articles of Association.
The Mallinckrodt Plc. Articles of Association, § 91, very clearly states:
91. Save as otherwise provided by these articles, a Director shall not vote at a meeting of the Directors or a committee of Directors on any resolution concerning a matter in which he has, directly or indirectly, an interest which is material or a duty which conflicts or may conflict with the interests of the Company. A Director shall not be counted in the quorum present at a meeting in relation to any such resolution on which he is not entitled to vote.
That Articles of Association, § 91, very clearly states directors must recuse themselves from voting on any resolution for which "may conflict with the interests of the Company". So, when there is a landslide vote of the shareholders that quantitatively demonstrated the "interests of the Company", that all directors be dismissed, Joann A. Reed and Carlos V. Paya, M.D., Ph.D. voting themselves (without recusal and a subsequent poll of the ultimate voting constituency) on a resolution to undo the result of the shareholder vote dismissing all directors from office, that was in ever-stark violation of the Company's Articles of Association, § 91. You claim that they were relying on the Company's Articles of Association § 105, to undo the results of the landslide vote dismissing all directors? The Articles of Association, § 105, clearly states "the Directors are not entitled to appoint alternate directors." So, you think, when a director told to leave office (given, Joann A. Reed and Carlos V. Paya, M.D., Ph.D. were already told to vacate office, and were serving as a skeleton board until replacements were nominated and elected by shareholders, even though they held their seats hostage through a restraining order to prevent their replacement) cannot even appoint alternate directors to themselves, that they can appoint alternate directors to other also-dismissed directors, and the very directors that were just dismissed? Let alone, you think it is in line with the duties of a director to engage business judgement when they are told by shareholders they are not even trusted enough to remain in office? The level of delusion and lack of ethics of this Company's Dismissed Board is absolutely mind-boggling and appalling.
Further, beyond present chapter 11 proceedings being illegally entered, in violation and evasion of the Companies Act § 1111, this Company's directors failed to recuse themselves from voting on the resolution to authorize for execution of such chapter 11 plans (again, already in preliminary violation of the Companies Act § 1111). You do not think undisclosed insolvency plans, that are voluntary actions on behalf of the shareholders (including a voluntary, yet unauthorized equitization of funded debts never previously disclosed as even being contemplated), "may [not] conflict with the interests of the Company"? While you do not even need evidence to know that undisclosed plans on the behalf of shareholders, in light of such failures by this Company's directors, "may conflict with the interests of the company", BHG sent a letter on September 28, 20205 (Annexed as Exhibit A), when we clearly stated we were already of the position that undisclosed plans that appeared to be underway "were not in the best interest". Even in light of evidence of opposition to any possibly undisclosed plan (even though a lack of evidence would still constitute a violation of the Companies Act § 1111), this Company's board still self-voted, without a vote of the shareholders, to invalidly authorize the plan to "deal with the situation" that they negotiated behind the backs of their shareholders, which was already in violation of the Companies Act § 1111, but also included a "material benefit" to post-reorganization insiders (for which did not exclude present insiders), which would have further required the recusal of directors from voting on any such resolution, pursuant to the Company's Articles of Association § 91.
In response to your last numbered section in your September 17, 2021, response letter, I will respond to your crafty and fallacious spinning of BHG's words, to set the record straight:
1. When your shareholder injunction covers "any person or entity" that the Company's directors wish to prejudicially label as "acting in concert", whether "directly or indirectly", which can not only be applied to any shareholder, let along can be applied to non-shareholders such as Broadridge even, you can drop your ridiculous statement that there is no merit for this Company being in violation of the Companies Act § 212, statutorily prohibiting the oppression of minority shareholders. And, you say "it is for the Irish Court to determine whether relief under Section 212 should be granted, not a shareholder"? When the Company's U.S. counsel discovered that BHG was going to seek relief from the Irish High Court, you added a provision to oppress/prohibit shareholders from freely seeking relief from the Irish High Court, too.
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5 U.S. Postal Service's Proof of Delivery via Certified Mail for The Buxton Helmsley Group, Inc.'s September 28, 2020, letter to the Company's directors: Annexed as Exhibit B
2. Your argument of the Companies Act § 1101, that we are not entitled to a shareholder meeting, is already invalid, as you are already in preliminary default of the extraordinary general meeting statutorily required to be held under the Companies Act § 1111. I am not even going to waste my time substantiating why shareholders should be afforded a shareholder meeting, when you are already in default on one, for which would require the free and full exercise of shareholder rights, yet you continue to oppress the Company-admitted rights of every shareholder, which would make an attempt of any shareholder meeting unlawful, just as your attempt at the August 13, 2021, annual general meeting was entirely unlawful and illegitimate.
3. Regarding the rights of shareholders, you have already admitted by virtue of the Company's July 2, 2021, proxy statement, that it was the right of shareholders to submit shareholder proposals and director nominations, for which you are actively prohibiting and infringing on that very shareholder right, in violation of the Companies Act § 212. You are also not able to only afford certain rights to this shareholder base, with those right being, as this Company so astutely noted, subject to the Companies Act and Mallinckrodt Plc. Articles of Association. Oppressing any rights of this shareholder base is unequivocal shareholder oppression in violation of the Companies Act § 212.
4. We will go back to the scenario of the child cheating on their test and gloating about receiving an "A" on it, for your hideous attempt of compliance with the Companies Act § 175. When you are actively oppressing every Company-admitted shareholder right, threatening to hold shareholders in contempt if they participate in the shareholder meeting on August 13, 2021, that is a fraudulent, ingenuine, unlawful, tampered, and manufactured shareholder meeting, which does not count for means of compliance with a lawful, genuine, democratic (not involving "electoral fraud" via "intimidation", even according to the broad consensus of Wikipedia) shareholder meeting being required to be held no further than every 15 months apart, pursuant to the Companies Act § 175. You cannot threaten every shareholder with contempt of court if they exercise their Company-admitted shareholder rights, and then claim that you allowed them to exercise their democratic power - what an utter joke. Again, the time when that starts being accepted by the High Court of Ireland, is the end of democracy at Irish companies, and completely throws the meaning of the Companies Act § 212 out the window.
5. Whether you want to claim the Companies Act § 680 applies or not (I am not going to argue about something so moot, in the grand scheme), you were required to hold genuine shareholder meetings at a minimum frequency, pursuant to the Companies Act § 175, as evidenced by your entirely tampered and manufactured annual general meeting on August 13, 2021, which does not count for means of compliance. You cheated your way in an attempt of compliance with the Companies Act § 175, by failing to disclose to the U.S. bankruptcy court you would be required to continue holding shareholder meetings after so fallaciously "enjoining" them and failed to disclose that shareholders would be required to exercise their rights at that upcoming shareholder meeting for it to be a genuine meeting, and non-artificial compliance with that statutory obligation of an ongoing democracy.
6. As already covered, your own senior partner, Dr. Thomas B. Courtney, disagrees with you, and agrees with BHG, on your breached obligation of the Companies Act § 1111, so apparently you need to convince the gentleman who advised the Irish government on the development of the Companies Act that he does not understand its meaning, but I say good luck to you on that one. One would believe his opinion over yours, both because of his experience, and also because he is not exposed to a positional conflict of interest by trying to maintain a flow of paychecks from the Company's directors through lip service to assist this Company's directors evading of the law.
7. If our statement that the shareholder injunction was "initiated to restrain [the Company's] entire shareholder base (far beyond BHG)" was not the intent, then why did you insist on wording the restraining order so that you could hold any shareholder in contempt of court (and not even just any shareholder, but even third-parties, such as Broadridge)? The broadness of your wording was very clearly meant to be a catch-all (remember, "any person or entity"), so do not now attempt to claim now that it was not. When you word it to cover "any person or entity" under the sun that the Company's directors wish to prejudicially label as "acting in concert", whether "directly or indirectly", you do not get to claim that it does not apply to every shareholder, when it can be enforced upon any shareholder with a mere prejudicial labelling of the Company's directors. You actually think any shareholder would attempt to exercise those Company-admitted shareholder rights, when you worded the shareholder injunction in a way to cover "any person or entity", and after you already retaliated against BHG with a lawsuit? Give me a break. Coercion at its finest, with an ultimate threat of being jailed through contempt proceedings for exercising Company-admitted legal rights of shareholders, labeling those you have a fiduciary duty to as "adversaries" - quite the upholding of a board's fiduciary duty…
8. When this Company had no justification for their reorganization plans at the hearings on appointment of an equity committee, you lose your standing to claim as to why the restructuring plans are warranted, and that there are not better paths to be pursued. You need to have a reason for your actions, or else your actions are not justified. But how could you even justify your actions if you refuse to even merely speak with your shareholders? It is easier just to sue and muzzle those asking questions when you do not have a good answer, isn't it? The Company also admitted during equity committee hearings that they made no attempt to sell the Company, which is an obviously neglected path whereby a third-party acquirer could have seen possible synergy opportunities, which could have enhanced the value distributed to equity holders. That third-party acquirer could have also seen opportunity in a more advantageous way to face the Company's litigation, uncovering hidden equity value not seen on the Company's published balance sheet. If this Company's directors think they are so superior that they know best the best path forward, and no one else could possibly come up with a better (or optimized) plan, they are in denial and are not fit to be leaders with such a superiority complex to begin with. Leadership takes collaboration to come up with the best possible results, which is the whole point of the Companies Act § 1111. Regardless, how you could possibly say you attempted all paths to preserve and maximize value for all stakeholders, when you failed to even receive possible strategic alternative plans/ideas from shareholders as part of your defaulted-on extraordinary general meeting under the Companies Act § 1111? You failed to pursue all paths to preserve and maximize value all the way up through the capital structure there alone, and in violation of the law. You did not want to hear any alternative paths, to begin with, which is the only reason you unlawfully entered chapter 11 proceedings in violation of that statute.
9. If you want to claim that the post-reorganization MIP is not to enrich present insiders, then I want you to add the following, verbatim, to the RSA:
"All present Mallinckrodt Plc. directors and executive officers are to resign immediately upon reorganization consummation (the moment of). Further, directors (to include any family members and other affiliates) are to receive no renumeration, compensation, and/or benefits, by any means (including, but not limited to, cash- and equity-based compensation, and all other possible forms of renumeration/compensation/benefits), post-reorganization, and are barred from receiving any post-reorganization equity incentives/awards/grants (whether from the MIP Plan Reserves or otherwise, and in all forms of equity-related incentives/awards/grants), and will remain economically disassociated (both as an employee or as an independent contractor relationship, directly or indirectly) from Mallinckrodt Plc. and its affiliates, and receive no economic benefit from the Company, directly or indirectly, for a period of at least 5 years starting immediately upon approval of the Debtors' reorganization by the High Court of Ireland as part of any possible Irish examinership proceedings".
If you include that clause, verbatim, to be implemented into the RSA, I will digress my argument that this management and board is attempting to enrich itself. Otherwise, you have no room to refute my grounds that post-reorganization insiders intend to economically, materially benefit from this reorganization, against the will of its shareholders, unauthorized both due to this Company's directors' preliminary violation of the Companies Act § 1111, and due to this Company voluntarily equitizing debt at the expense of its shareholders (and attempting to wipe out bondholders), which more than "may conflict with the interests of the Company", requiring directors to recuse themselves from authorizing such plans, for which they failed such recusal as part of their resolutions invalidly passed on October 11, 2020, to authorize the also-unauthorized submission to jurisdiction of the United States. Shareholders had no obligation to submit to the jurisdiction of the United States for any possibly required proceedings, and that was entirely the choice/decision of shareholders, as the Company's owners and democratic voices of any voluntary move of this Company. For that RSA clause proposal, I say, "for a period of at least 5 years starting immediately upon approval of the Debtors' reorganization by the High Court of Ireland as part of any possible Irish examinership proceedings", as we have seen first-hand how this Company's directors like to interpret "vacating office", through our first-hand experience of them entirely (all directors) being dismissed by shareholders (at the August 13, 2021, annual general meeting), as entering the revolving door to "vacate office", then never leaving the other side of the revolving door, to merely return back to the original opening of the revolving door, to have their fellow cronies re-hire them as if they were never dismissed to begin with. "Vacating office" means you are gone, long-term; not to be re-appointed instantly thereafter by your fellow cronies. I also say to receive no remuneration in any compensation form, as we both know that if I said no equity-based compensation, Mallinckrodt Plc. directors and officers would just, through creative interpretation of that restriction, opt to drain the Company of its hard assets, in lieu of that then-prohibited compensation form of equity, just as they did leading up to this reorganization. I can read this Company's directors and officers like a book, and it sickens me to have to think about every way that someone will use their intelligence in unethical ways - that is the exact reason this Company's directors were voted out (they do not belong at this Company). Though, even if this Company did include that clause in the RSA, your plans would still be "dead in the water", given that the October 11, 2020, authorization, by a mere vote of the directors to, to authorize and execute these reorganization plans, was invalidly passed. Such an unauthorized, unapproved equitization of debt more than "may conflict with the interests of the Company" upon a full vote of the shareholders, requiring recusal by directors, and a full vote of the foundational voting constituency of any voluntary actions by this Company (its shareholders), pursuant to the Mallinckrodt Plc. Articles of Association, § 91. I will also point out that the entire point of the Project Balboa reorganization was to settle contingent litigation damages - not to lighten the overall balance sheet through equitization of funded debt liabilities at the expense of the shareholders. Shareholders would never have (without concrete justification as to why required) approved such a radically different purpose of chapter 11 plans compared to Project Balboa. But, such a proposition would have triggered a vote of the shareholders to authorize for the Company's directors' voluntary execution of such plans (or, shareholder meeting under the Companies Act § 1111), which we all know already how much you "love" (much sarcasm) running your plans by shareholders, even when it means violating the law in the process of such an attempt to pull out the rug from under them. If you failed to gain the support of shareholders for any such plan, any such a resolution would more than "may conflict with the interests of the Company", for which you would then be required to recuse yourselves from authorizing any such resolution, pursuant to that Articles of Association § 91, and resign if you did not condone the future path of the Company decided by the shareholders (muzzling your shareholders, in violation of the Companies Act § 212, was not an option). This Company's Dismissed Board has breached the Articles of Association § 91 multiple times over already, whether when you wanted to undo the shareholder vote dismissing all directors, or when you authorized plans that would enrich post-reorganization insiders (we all know you are hoping to remain in office to receive not less than 50% of the MIP Plan within 30 days of reorganization completion and, if you are not intending to even possibly be enriched, you will - again - have no issue including my clause from earlier in this item to bar this Company's entire director and management team from reaping the rewards from these restructuring terms).
10. Thank you for naming all your creditor preference violation beneficiaries. Of course, they support your plan when they are being handed pots of gold, with some of them not being even "probable" enough liabilities to be accrued in the accounting records of the Company, yet you hand them value ahead of those with "probable" enough of an economic interest in the Company to be given a spot on the balance sheet, including ahead of the founders/shareholders of this Company. Value being capriciously handed (by this Company's directors and management) to claimants that do not even present "probable" liabilities (pause), before even the founders/shareholders of the Company… Let that sink in… I will also add that it is clear you have not one clue what you are handing any party, as you - out one side of your mouth - claim parties set to receive post-reorganization equity to be "impaired" at the same time you - out the other side of your mouth - admitted in equity committee hearings that they are "over-secured". They are not then impaired if they are being unjustly enriched at the expense of all other stakeholders whom you have an equal fiduciary duty to. You cannot even figure out what you are handing one party over another, cannot keep "probable" economically interested stakeholders, whom you actually have a fiduciary duty to, ahead of mere claimants not even "probable" enough to be accrued in the accounting records of the Company, and cannot even keep a number straight for net assets belonging to shareholders. And you wonder why shareholders and bondholders do not trust the fiduciaries of this Company? You do not think those bondholders you are attempting to extinguish might not like some of that "over-secured" value that you are handing to "over-secured" bondholders at the expense of those initial bondholders being extinguished? Good luck fun finding one April 2023 bondholder that would not agree with me on this topic, except those that are also the beneficiaries of your creditor preference violations.
11. You say shareholders are "out of the money" based on - for one part - a ridiculous, unfounded "liquidation analysis", whereby you whacked off an arbitrary ~70% or so from asset values on the balance sheet, effectively throwing spaghetti at the wall, with that analysis not even being applicable, as this Company is not being liquidated. This Company is being reorganized, with the same assets as now, so, again, I will refer you back to the balance sheet that you so ironically directed BHG to (for a measure of net assets) in your September 17, 2021, letter (after having sued BHG for referencing that net asset number before), which will prove that not even your auditors believe no shareholder's equity exists. Further, you have omitted quite the assets from the balance sheet of this Company, if you claim that such damages to this Company's balance sheet related to the criminal conduct which stems from the possible contingent liabilities at hand (violations of RICO, price fixing laws, antitrust violations, Medicare fraud, etc.), at the ultimate direction of this Company's directors and management, is so "hopelessly" true, given that there should be equal assets on that balance sheet to the "hopelessly" true liabilities stemming from such, apparently "hopelessly" true criminal and fraudulent conduct, which should be collected from our fiduciaries who allowed such criminal and fraudulent conduct to occur under their leadership. We never condoned defrauding Medicare if that is "hopelessly" true to have been done by this Company's leadership. We have never been in this business for anything but profits from legal business activities - any criminal and fraudulent conduct perpetrated by our fiduciaries, or the failure of their leadership, is a liability that this shareholder base has every right to pin on them. If you claim you did not know about that criminal conduct, and it truly "hopelessly true", you neglected on your leadership abilities just as much as you neglect to uphold Irish law. Shareholders have equal claims to enforce against this Company's management and board, if their criminal and fraudulent conduct is so "hopelessly" true that they default to "trillions" in liabilities as a result. I will add, fiduciaries using the reorganization process to stuff their criminal liability under the rug is not a permissible use of the United States Bankruptcy Code or Irish Examinership Process.
12. Contrary to your opinion that this Company's fiduciaries have not "pillaged the pot" in violation of their fiduciary duties, I will refer you back to the fiduciary duties for which your senior partner, Dr. Thomas B. Courtney, outlined, as cited above, for which you violated every single tenet, including opting for draining the hard assets (cash) of the Company leading up to these directors pulling out the rug from under those whom they had a fiduciary duty to (shareholders and creditors), without warning, in violation of the Companies Act § 1111, both via their all-cash compensation plan (clearly, they believed equity was worthless, if they did not want to receive payment in that form) and their cash "bonuses" just a month before unlawfully commencing their (unauthorized, via an invalidly passed resolution to authorize) voluntary submission to the jurisdiction of the United States for chapter 11 proceedings (again, that drastic, undisclosed move more than "may conflict with the interests of the company"). This Company's directors and officers knew they were going to pull the plug on stakeholders, without warning or authorization of any possible voluntary plans on behalf of the shareholders (in violation of the Companies Act § 1111 and Articles of Association § 91), and they thought they would take some hard assets (cash) for the benefit of insiders before they came clean to every stakeholder on supposedly known insolvency, that they delayed to announce and they negotiated behind the backs of those whom they had a fiduciary duty to. That is no different than the final days of a Ponzi scheme, and definitely "pillaging the pot", in stark violation of their fiduciary duties, as set forth by your senior partner Mr. Courtney. If you disagree with him, feel free to take that up with him, but I can bet every other victimized stakeholder and the High Court of Ireland will agree with him, I, and firmly disagree with your assertion that these directors have acted in line with their fiduciary duties by any standard. They have failed on all fronts.
13. If BHG allegations of insider trading (which you so conveniently glossed over, without responding to at all - interesting…), proxy fraud, bankruptcy fraud, and electoral fraud, are so incorrect, then why do you not justify why (in detail, rebutting each point of BHG's), without merely defaulting to such assertions being "incorrect, without any factual basis", when we cite numerous facts, figures, and securities filings to back all claims up? We gave you the dates for which prove your insider trading, from your own letters and securities filings. You have all the facts to know this Company's directors and officers have committed imprisonable securities fraud, among their imprisonable offenses of Irish law. You also are claiming before the bankruptcy court "hopeless insolvency", as you tell BHG in private letters that you actually believe net assets exist, according to the balance sheet that you sued BHG for relying on before. Are you committing fraud when you say net assets exist, or you committing fraud when you say net assets are "hopelessly" nonexistent? You can pick which form of fraud right there, but that is a "pick your poison" sort of question, and then you have you no room to state this Company's directors are not committing fraud, based on that fraud alone, not to mention all of the other securities fraud, electoral fraud, and otherwise. It is also accounting fraud to claim liabilities are not even "probable" enough (pursuant to FASB ASC topic 450-20-25-2) to be accrued in the accounting records of the Company and on the balance sheet, if you then want to claim those liabilities are also "hopelessly" valid at the same time in the United States Bankruptcy Court. Whether a written or verbal statement of financial standing, it is accounting fraud to claim two different things. Pick the side of fraud you are committing - concealed liabilities, or fictitious losses. You cannot report one number to the IRS to reduce taxes, compared to the number you report to the bank for means of obtaining financing, just the same as you cannot report one number to the Commission in certified financial statements, while claiming a completely different set of financials to the bankruptcy court. Where are you lying? Lying in financials is fraud, whether you and this Company's directors want to hear it or not.
14. Let us start that it is not "unlawful disruption" to engage the Company-admitted shareholder rights "subject to the Companies Act of 2014 and Mallinckrodt Plc. Articles of Association", for which I will dually, again, state that you requested shareholders to exercise those rights (though, ever-so-fraudulently, with your booby-trapping of shareholders to hold them in contempt of court, if they did) as part of the August 13, 2021, annual general meeting. Given that shareholder meetings, and democratic processes, were statutorily required to continue to run course (as proven by your requirement and holding of the August 13, 2021, annual general meeting), that is then not "unlawful disruption". You just stated in your August 2, 2021, that those shareholder rights, are our lawful rights. The only reason such an exercise of lawful shareholder rights has even been contemplated by this shareholder base is because of this Company's directors' "unlawful" entry into chapter 11 proceedings, in violation of the Companies Act § 1111 and in violation of the Company's Articles of Association § 91. Further, you obtained your shareholder injunction through threats - that is not legal consent, and the order was never legal to begin with, in violation of Irish anti-shareholder oppression statutes, for which you also never disclosed to the United States Bankruptcy Court, along with your failure to disclose that you were statutorily required to continue holding the shareholder meetings that you claimed would cause such "irreparable harm". You also claim that the Guide to Business Conduct did not prohibit you from enforcing alleged securities law violations, when what is the difference of shareholders using their Company-admitted shareholder rights to enforce the fiduciary duty of directors failing to uphold Irish law, to prevent them from committing further insider trading, proxy fraud, accounting fraud, bankruptcy fraud, and electoral fraud? Why do you get to use your available tools to ensure lawful conduct of shareholders, but think its okay to strip the tool of shareholders that ensures the lawful conduct of directors?
15. To set the record straight, it was not improper (you are putting words in my mouth) for the directors of Mallinckrodt Plc. to seek ("seek" being a key word) a waiver of equity ownership requirements, which was a requirement/policy of the Company's compensation plan terms. What was improper, was that the Company's directors not only engaged in an invalidly passed resolution to perform that waiver (thank you for pointing out the "benefit" gained from the waiver by directors being allowed to collect currency as a result of their free ability to sell their stock upon the waive, which means they were forced to recuse themselves from voting on such a resolution, pursuant to the Articles of Association, § 91, which forces recusal, and a vote of the foundational/ultimate voting constituency, in the instance of a "material benefit" as part of any such resolution put forth for voting, let alone that the "interests of the company" may not be to have their directors resign, if they do not wish to partake in the financial implications of their decisions), but also committed insider trading while/after doing so. You had to disclose that very material waiver to the public investors before you traded on the information (not dumping your stock onto unsuspecting investors), so that the market could understand you so absolutely believed shares had no value and that directors were waiving the very policy that kept directors and officers materially aligned with shareholder interests. That is just as material inside information, that you traded on nearly 5 months before disclosing and, might I add, never disclosed to the bankruptcy court during equity committee hearings, as you claimed you were still aligned with shareholder interests; no, you were not, very simply. Further, thank you for pointing out that the "equity ownership requirements" were not a part of the Company's Articles of Association; they were a firm part of the that other corporate governance document called the "Compensation Plan", and they were indeed a firm "requirement", so quit misleading investors with using the word "guideline", as that is not true and entirely false.
16. BHG never stated that the approval of StrataGraft® unequivocally thrusted the company into a different level of solvency - that is false, so do not put words in my mouth. We said that the value distribution as part of the contemplated reorganization terms, never gave proper credit to that undeniably unlocked equity and asset value (through that addition in revenues, and therefore addition to intangible assets values) to those stakeholders with such a "probable" economic interest in the Company that they are given a spot in the Company's accounting records, such as the 2023 bondholders. And if you gave any extra value to those claimants with not "probable" enough of claims to even be listed on the balance sheet, before those with "probable" enough of an economic interest that you should be fighting to provide value for tooth and nail (as part of your fiduciary duties to any funded debtholders, legal judgement holders, and shareholders; the only stakeholders whom you have a fiduciary duty to) then you committed a creditor preference violation, yet again.
17. You want to contend that this Company's creative use of a foreign court to violate the criteria that immediately preclude "a scheme" (there is no limitation as to how that scheme of arrangement is derived to be put forth) is an exemption to such commonsensical criteria as to schemes that should not be immediately disqualified, due to such misconduct, with stakeholders being anything but fully disciplined? You think that your creative use of a foreign court to engage in "improper coercion" (in a restraining order that could even be applied far beyond shareholders to hold "any person or entity" in contempt of court) and "statutory violations" (including the Companies Act §§ 1111 and 212, among the numerous other violations as a result of your breaches of fiduciary duty, including false statements of accounting knowledge and extracting extra hard assets (cash) for insiders before this Company's extremely delayed declaration of insolvency (also in violation of your fiduciary duties) are going to result in the High Court applauding your creativity by even entering you into examinership in light of such corruptness and bad faith? Again, the day that happens, will be the end of Ireland-incorporated companies taking Irish law seriously, and I do not think the Irish High Court will even ponder setting such a precedent that Irish company law and the fiduciary duties of directors of Irish companies is to be taken anything but utmost seriously, and to be firmly disciplined if not. The position of a director is not just a gravy train, and these directors have not only have failed on their fiduciary duties (to shareholders and creditors), but also on the simplest aspects of upholding Irish law, where even an ethical individual would not require knowledge of the very statutes violated to know that such conduct was unethical. It is a disgusting game to play, seeing how far you can skirt into unethical behavior before it becomes illegal.
18. You are exactly proving my point that this Company's directors are in breach of your fiduciary duties. One, they are not even upholding their fiduciary duties to creditors. Further, they have an obligation to maximize the value of the Company throughout the entirety of the capital structure (they do not get to throw in the towel and do anything but fight tooth and nail to maximize value, even where not thought to be possibly found, or otherwise resign if they are not up for the task) - we are not saying that you should put the interests of any stakeholder before another, except that you should not be putting mere claims not even "probable" enough to be accrued in the accounting records of the Company ahead of those shareholders and creditors who were the foundational reason this Company even exists. You also do not have the right to make a voluntary decision, on behalf of the shareholder, to equitize debt without first consulting your shareholders and obtaining their consent to such a voluntary equitization via the statutorily required extraordinary general meeting required under the Companies Act § 1111 (they may wish to pursue other strategic alternatives). That is the choice of shareholders - not insiders owning less than 1% of the common stock of the Company pre-petition, with those insiders now owning virtually zero shares of common stock after their insider trading, with no vested interest in their decisions being made, yet still holding the shareholders of this Company hostage in light of their illegal conduct and fraud. You are also, again, dealing assets to a new company, for which post-reorganization insiders will receive an interest in (again, until you are willing to put my proposed clause from numbered item 9 in a final RSA, do not tell me that directors and management are not praying to hop of the gravy train resulting from these capriciously and illegally set forth unauthorized reorganization plans), at the expense of impairing present stakeholders, when you are dealing the assets in a way that do not align with valuations even your auditors are in agreement with (again, take a look at that audited balance sheet you pointed BHG to in your September 17, 2021, letter).
To conclude, if these directors resolve to voluntarily (on behalf of the shareholders of this Company) apply to enter Irish examinership, in obstruction of the very concretely demonstrated opposition by shareholders of any such voluntary move initiated by this Company's directors, due to an underlying material benefit (equity in a lighter balance sheet, due to unauthorized voluntary equitization of funded debt, at the expense of and against the Company's fiduciary duty to shareholders) of insiders that happen to remain post-reorganization (which would require you to recuse yourselves from such a voluntary resolution to enter examinership, pursuant to the Company's Articles of Association, § 91, or it will be just as invalidly passed as the directors' October 11, 2020, resolution to unlawfully enter chapter 11 proceedings), while also in violation of the Companies Act § 1111, you, Mr. Ranalow, are signing this Company's directors up for a category 3 offense under Irish law, which - again, for the knowledge of this Company's directors - carries up to 6 months in prison and fines. You say these cases are for "implementing the restructuring plan in accordance with Irish law", when you should have said, "implementing the unauthorized restructuring plan in violation of Irish law". You could not be guiding this Company on a course of more unlawful and fraudulent conduct, and this Company's directors and management will be the poster children for what not to do in the course of an Irish company, which will be readily available for study as part of many case studies, I am sure. Perhaps, they will also be a guiding light for the establishment of a Companies Act of 2022, just as much as Enron was for Sarbanes-Oxley.
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
New York Headquarters | Mr. Alexander E. Parker |
1185 Avenue of the Americas, Floor 3 | Senior Managing Director |
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com |
T. +1 (212) 951-1530 | |
F. +1 (212) 951-1530 |
VIA REGISTERED U.S. POSTAL MAIL ONLY
September 28, 2020
Mr. Angus Russell, Chairperson of the Board
Mr. Mark Trudeau, Chief Executive Officer, President, and Director
Mr. David Carlucci, Director
Mr. J. Martin Carroll, Director
Mr. Paul R. Carter, Director
Mr. David Norton, Director
Mr. Carlos V. Paya, M.D., Ph.D., Director
Ms. JoAnn Reed, Director
Ms. Anne C. Whitaker, Director
Mr. Kneeland Youngblood, M.D., Director
Mallinckrodt plc. - New Jersey Principal Office
1425 U.S. Route 206
Bedminster Township, N.J. 07921
Re: Chapter 11 Bankruptcy Contemplation
Ladies and Gentlemen:
I write to you on behalf of The Buxton Helmsley Group, Inc., an asset management firm headquartered in New York, N.Y., and - more importantly - our investors, who currently retain a significant interest in the common stock of Mallinckrodt plc., and have for some time (even prior to the commencement of the CMS-related litigation). I had sent in an e-mail to investor relations this afternoon (September 28, 2020), outlining my concerns with the path that you are publicly contemplating, and also its negative byproduct effects that it quite obviously is having on the settlement of the outstanding opioid and CMS litigation.
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I will start with that the public contemplation of a Chapter 11 filing is not as powerful of a negotiating tactic as a Chapter 7 filing threat would be. The only reason that a Chapter 11 filing should be contemplated is if creditors agree for us to retain our equity in the assets of the company, or better. If that is not possible, the only thing that should be contemplated is a Chapter 7 filing for liquidation of the company, as our equity is valuable and there is no reason it should be wiped out. If the company continues with its contemplated Chapter 11 filing without a plan supported by creditors that current Mallinckrodt shareholders retain their interest in the company, that would be breach of your fiduciary duty, being that you are choosing the route of less assurance that existing shareholders receive consideration for their rightful equity in the company's assets - there is significant equity on the company's books that belongs to the shareholders. I also believe that it is highly detrimental and a breach of duty to use the threat of a Chapter 11 filing against those plaintiffs in the opioid and CMS litigation, being that is only to ensure the retention of the executives' jobs and being that those litigation plaintiffs would actually likely be better off with a Chapter 11 reorganization versus a Chapter 7 filing, given that they would likely receive their claim values on a much more accelerated timeline than they would with a settlement, if it were simply equitized (given that the current opioid settlement is set to pay out over multiple years). With a Chapter 7 filing, they would have no assurance that they would receive consideration for their claims, while they would almost surely receive equity in the reorganized company. The only other beneficiaries to such a reorganization where shareholders would almost surely get wiped out, would be the executives. If this ship goes down, the executives should not fare better than the current shareholders, otherwise it is quite blatantly clear that you did not act in their best interest. You should be impacted just the same as us shareholders. It is all too easy for you to simply throw in the towel, and you need to attempt to make these settlements and ensure the continuity of this company as though your jobs depend on it.
To get to the point, I am telling all of you this, as I believe that your current actions are not in the best interest of shareholders. I also worry that you will simply throw in the towel with a Chapter 11 reorganization, when that is very clearly - for the many reasons I outlined above - not in the best interest of shareholders. I must warn that if a bankruptcy filing is made not that is not in the best interest of shareholders, I will immediately prompt the filing of a class-action lawsuit against the company to both halt the bankruptcy process and ensure that we receive the value that we are entitled to (or at least maximize our chances of it). The value of this company is not something that should just be wiped away merely because it is the easy way out; this is a chunk of the retirement nest egg of many, and you must treat this situation accordingly. I am very well connected with law firms specializing in class-action litigation surrounding securities matters and have previously been a part of such class-action and whistleblower litigation. If anything is done here that is not in the best interest of shareholders, this will get very messy, as I will stand up for all shareholders here - you can count on it.
On behalf of all shareholders, I appreciate your attention to this matter and ensuring that a fair outcome is had for all.
Most Sincerely,
Alexander E. Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
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Arthur Cox LLP Ten Earlsfort Terrace Dublin 2 D02 T380 +353 1 920 1000 Dublin Belfast London New York San Francisco arthurcox.com |
17 September 2021
BY POST & EMAIL (klein@kleinllc.com)
Ms. Julia Klein
Klein LLC
Wilmington, DE 19801
Re: |
Mallinckrodt plc and The Buxton Helmsley Group, Inc. |
Dear Ms Klein
We understand that you act as U.S. counsel to The Buxton Helmsley Group, Inc. ("BHG") and Mr Alexander E. Parker. We act as Irish solicitors to Mallinckrodt plc (the "Company").
We refer to Mr Parker's letters to the Company on behalf of BHG dated 20 May 2021, 1 June 2021, 7 July 2021, 2 August 2021, 5 August 2021, 17 August 2021 and 14 September 2021. We also refer to the letter from the Company to BHG dated 25 May 2021 and from the Company's U.S. counsel, Latham & Watkins LLP, to you dated 2 August 2021, each rejecting the assertions made in BHG's correspondence.
We note that several of BHG's letters were also addressed to Broadridge, Inc. as the inspector of elections and the Office of the Director of Corporate Enforcement and, accordingly, this response is being copied to them.
We write in anticipation of confirmation of the Company's plan of reorganisation in its chapter 11 case pending in the United States Bankruptcy Court for the District of Delaware (the "U.S. Court") and the subsequent proposed examinership process which will be overseen by the Irish Court, principally in order to respond to certain claims made by Mr Parker as they relate to Irish law. BHG's letters are at best misplaced at a number of levels. BHG's claims are predicated on the erroneous and false assumption that the Company and/or its directors have acted improperly and/or unlawfully. Those claims have no basis whatsoever in fact or in law. BHG's letters repeatedly make a number of incorrect and misdirected allegations and we do not intend to address each allegation directly, limiting our response to some of the more material allegations and in particular as they relate to Irish law. However, for the avoidance of doubt, this response should not be understood as an acceptance on the part of the Company of the merit, relevance, accuracy or validity of any particular assertions or issues contained in BHG's letters.
Grainne Hennessy · Séamus Given · Caroline Devlin · Sarah Cunniff · Elizabeth Bothwell · William Day · Andrew Lenny · Orla O'Connor (Chair) Brian O'Gorman · Mark Saunders · John Matson · Kevin Murphy · Cormac Kissane · Kevin Langford · Eve Mulconry · Philip Smith · Kenneth Egan Alex McLean · Glenn Butt · Niav O'Higgins · Fintan Clancy · Rob Corbet · Ultan Shannon · Dr Thomas B Courtney · Aaron Boyle · Rachel Hussey Colin Kavanagh · Kevin Lynch · Geoff Moore (Managing Partner) · Chris McLaughlin · Maura McLaughlin · Joanelle O'Cleirigh · Richard Willis · Deirdre Barrett Cian Beecher · Ailish Finnerty · Robert Cain · Connor Manning · Keith Smith · John Donald · Dara Harrington · David Molloy · Stephen Ranalow Gavin Woods · Simon Hannigan · Niamh Quinn · Colin Rooney · Aiden Small · Phil Cody · Karen Killoran · Richard Ryan · Danielle Conaghan Brian O'Rourke · Cian McCourt · Louise O'Byrne · Michael Twomey · Cormac Commins · Tara O'Reilly · Michael Coyle · Darragh Geraghty · Patrick Horan Maeve Moran · Deirdre O'Mahony · Deirdre Sheehan · Ian Dillon · Matthew Dunn · David Kilty · Siobhán McBean · Conor McCarthy · Órlaith Molloy Olivia Mullooly · Laura Cunningham · Mairéad Duncan-Jones · Ryan Ferry · Imelda Shiels · Brendan Wallace · Ruth Lillis · Sarah McCague · Niamh McGovern
There are four principal misconceptions or errors in BHG's letters which we will address first:
1. The Nature of the Fiduciary Duties of the Directors of an Irish Company
BHG appears to be suggesting a course of action for the Company that would involve threatening creditors with the prospect of a disorderly liquidation in which "creditors should scavenge for value just as much as equity holders",1 and by doing so presumably secure some category of advantage or payment to members beyond that which the insolvency of the Company would otherwise permit. Through BHG's insistence that such a course of action is the required course of action for directors to properly discharge their duties, BHG appears to be stating that there is a duty under Irish law for the directors of an insolvent company to prioritise members above creditors in this manner.
BHG's position fundamentally misunderstands the fiduciary duties of directors under Irish company law. Under Irish company law, when a company is in insolvency, the directors are required to act primarily in the interests of the company's creditors rather than its members. If there is no reasonable prospect of the company avoiding insolvency, the directors are required to manage its affairs with a view to minimising the potential losses to creditors. All of the actions of the directors of the Company in respect of both the Chapter 11 proceedings and the proposed orderly reorganisation have been taken having regard to, and in full compliance with, this duty.
It is untenable and unreasonable to continue to maintain an argument that the directors are in breach of their duties by simply acting in accordance with the law.
2. The Consent Order of 28 April 2021
BHG has mischaracterised the consent order of the U.S. Court dated 28 April 2021 (the "Consent Order") by seeking to portray it as somehow having been obtained on a non- consensual basis, under duress or as an act of intimidation.
In fact, BHG sought to agree the order on consent with the Company, with the benefit of legal advice, and the Consent Order itself was issued on consent. That this occurred in the face of undeniable evidence of BHG's own breaches of U.S. securities law does not change the clear fact that BHG consented to the order without any duress and with the benefit of legal advice.
The Company also absolutely rejects BHG's assertion that it misled the U.S. Court in any way. It is noteworthy that BHG has taken no steps to address BHG's purported concerns with the Consent Order before the U.S. Court.
3. Compliance with U.S. Securities Law
BHG mischaracterises the obligation to comply with U.S. securities laws, pursuant to the Consent Order, as somehow being in contravention of Irish company law. Nothing in the Companies Act 2014 of Ireland (the "Companies Act") prohibits or restricts an Irish company from complying with the securities laws of another jurisdiction, including those designed to protect investors and ensure orderly capital markets, nor does it absolve other market actors from their obligations under such laws.
_______________________________
1 BHG Press Release dated 15 January 2021.
2
The Company is treated as a domestic filer for U.S securities law purposes. The Company is therefore subject to Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules of the Securities and Exchange Commission ("SEC") thereunder. In particular, this requires any person soliciting proxies (terms that are broadly construed by the SEC) to furnish a proxy statement containing specified information to shareholders after filing it with the SEC for potential SEC review, and generally permits solicitations prior to furnishing a proxy statement only if, among other things, all solicitation materials are filed with the SEC on the date they are first published, sent or given to shareholders.2 The proxy rules also require that the statements in such materials not be materially false or misleading.3
The reasons for seeking injunctive relief resulting in the Consent Order were set out in detail in the court application papers, which were delivered directly to BHG and its counsel, and which presumably BHG reviewed with counsel prior to consenting to entry of the Consent Order granting the injunction. As is set forth in those papers, a key reason for the action was that BHG was in breach of U.S. securities law. Those breaches include failing to furnish a proxy statement to shareholders or file it with the SEC for potential review, failing to file BHG's solicitation materials with the SEC and making repeated false and misleading public statements regarding valuations of the Company's shares and the Company's management and prospects, among other things. The illegal solicitations and false and misleading statements risked meaningful losses for investors who relied upon them.
Without repeating all of BHG's false and misleading statements here, these included: touting a share value of $11 to $30 per share with no basis and without acknowledging or disclosing that the U.S. Court had already determined the Company was "hopelessly insolvent";4 stating that the Company only required a "very minimal capital injection" notwithstanding the actual liability position of the Company;5 encouraging investors to acquire additional shares in the Company and not sell their current position;6 stating that the restructuring plan lacked support from creditors notwithstanding the very significant levels of support for the restructuring support agreement;7 claiming the imminence of the settlement of litigation independently of the insolvency proceedings notwithstanding that such settlements rely on the reorganisation plan being implemented;8 highly speculative references to revenue from a future pipeline of drugs that had yet to be approved or put into production;9 statements that BHG had garnered sufficient votes to convene an extraordinary general meeting under Irish law, when this was not the case;10
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2 Rules 14a-3(a) and 14a-12 promulgated under Section 14(a) of the Exchange Act.
3 Rule 14a-9 promulgated under Section 14(a) of the Exchange Act.
4 BHG Letter to Mallinckrodt Shareholders dated 15 January 2021; Email through Revive Mallinckrodt website dated 26 January 2021.
5 BHG Letter to Mallinckrodt Shareholders dated 15 January 2021.
6 Email through Revive Mallinckrodt website dated 26 January 2021; Email to Mallinckrodt Shareholders dated 18 February 2021.
7 BHG Press Release dated 15 January 2021.
8 BHG Letter to Mallinckrodt Shareholders dated 15 January 2021.
9 BHG Letter to Mallinckrodt Shareholders dated 15 January 2021; Email to Mallinckrodt Shareholders dated 18 February 2021; BHG Letter to Mallinckrodt Board of Directors dated 20 May 2021.
10 BHG Press Release dated 20 January 2021; Email to Mallinckrodt shareholders dated 6 March 2021; BHG Letter to Mallinckrodt Board of Directors dated 20 May 2021; Transcript of 22 December 2020 Hearing denying formation of Official Committee of Equity Security Holders at 54:16-17.
3
and various false attacks on the Company's officers and directors, certain of which are detailed herein.
It was therefore entirely proper for the Company to take action to prevent further harm being caused by these breaches of U.S. securities law, particularly in circumstances where they could incite shareholders to remove the Company's board based on materially false disclosures made in violation of the proxy rules, place the orderly restructuring of the Company in jeopardy and could not possibly result in any benefit for members who had been determined to be deeply out of the money. No action by the Company or its directors in this regard was in breach of the Companies Act or Irish law generally.
4. The Annual General Meeting of 13 August 2021
BHG makes various assertions as to "electoral fraud" and improper conduct by the directors in respect of the annual general meeting of the Company held on 13 August 2021 (the "AGM").
The AGM was convened in accordance with the Companies Act and the Company's Constitution, including in compliance with the requirements for notice. The votes on all the resolutions set out in the notice of the AGM were conducted by poll, with the votes counted and certified by Broadridge, Inc. The Company is not aware of any ballots being disputed or of any votes cast at the direction of BHG being rejected. The results of the AGM were announced by the Company later on the same date. The Company rejects any allegation of unlawfulness or invalidity in respect of the convening and holding of the AGM.
As BHG is aware, all members on the record date were entitled to vote on each proposal at the AGM. BHG's letter of 7 July 2021 makes great issue of the allegation that BHG was prohibited from exercising such voting rights as it may have had at the AGM. In that regard, we refer BHG to the letter from Latham & Watkins LLP dated 2 August 2021 which confirmed that the Consent Order did not preclude BHG from exercising voting rights at the AGM in respect of shares that BHG owns. This letter was issued allowing ample time for the exercise of such voting rights to which BHG may have been entitled. Despite BHG's concerns regarding the proposals, which it has set out at length in correspondence, BHG did not take any action to prevent the AGM from proceeding as planned. Nor did BHG take any action at any stage to seek clarification or modification regarding the Consent Order from the U.S. Court, the terms of which, in any event, BHG had fully consented to. There was therefore no impediment to BHG exercising such voting rights as it may have been entitled to cast at the AGM.
BHG also makes various allegations regarding the validity of the appointment of the current directors of the Company. Article 81 of the Company's Constitution addresses the contingency where no directors receive sufficient votes to be re-elected at an annual general meeting, specifically providing that the two directors receiving the highest number of votes in favour of their election are deemed to continue in office. As it transpired, the exact contingency provided for in Article 81 came to pass at the AGM, and the provisions of Article 81 were therefore correctly applied by the Company with JoAnn Reid and Carlos Paya continuing in office.
Following the AGM, Ms. Reid and Mr. Paya exercised the powers under Article 105 to appoint the other members of the pre-AGM board as directors. This was done to satisfy the requirement that a large complex business, such as the Company's, should have a board with a diversity of backgrounds and skills (including in respect of accounting, finance, management, business operations, industry knowledge and global markets). Regard was also had to the risks to the orderly implementation of the proposed restructuring of proceeding without a board with a mix of director attributes (compared to a board comprised by Ms. Reid and Mr. Paya alone) and that it was unlikely to be possible to identify appropriately qualified alternative candidates to the pre-AGM board, including candidates acceptable to the relevant stakeholders, during the short time remaining before the anticipated implementation of the reorganisation, and that any such candidates would not have the detailed knowledge of the Company and its business, and the proposed reorganisation, of the proposed additional directors. Regard was also had to the fact that following the implementation of the reorganisation the new shareholders of the Company would wish to reconstitute the board in whole or in part, and that the appointment of the additional directors was therefore likely to be an interim measure pending the completion of the reorganisation. In these circumstances, the exercise of the powers under Article 105 was entirely appropriate and in the best interests of the Company.
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BHG's letters also raise a number of other points relating to Irish law which we wish to respond to briefly:
1. BHG makes numerous assertions that the Company has breached section 212 of the Companies Act. These allegations are without any merit. BHG's letter of 20 May 2021 reveals a complete misunderstanding of the purpose and operation of section 212. Section 212 is a mechanism by which a member can apply for relief regarding a complaint that the affairs of the company are being conducted, or that the powers of the directors of the company, are being exercised, inter alia, in a manner oppressive to him. It is for the Irish Court to determine whether relief under Section 212 should be granted, not a shareholder.
2. BHG has asserted that section 1101 of the Companies Act (applying a 5% threshold for the convening of an extraordinary general meeting by members) applies to the Company. This is incorrect because section 1101 only applies to a "traded PLC" and the Company is not such a company; instead, it is section 178 (which applies a 10% threshold for the convening of an extraordinary general meeting) that applies to the Company. It appears that BHG has misunderstood the definition of a "traded PLC", and in so doing has misled investors as to the applicable threshold to convene a meeting. We refer BHG to the definition of a "traded PLC" in section 1099(4) of the Companies Act, as meaning a public limited company whose shares are admitted to trading on a "regulated market" in a Member State of the EU. Section 1000 in turn defines "regulated market" by reference to the definition set out in MiFID II,11 which in turn defines such a market as being one which is authorised under Title III of MiFID II. The Company's shares are not admitted to trading on any such "regulated market". In particular, the Company's shares are not admitted to trading on any regulated market operated by the Frankfurt Stock Exchange and the Company has never made an application for, or otherwise sought admittance to, listing on any market, whether regulated or unregulated, operated by the Frankfurt Stock Exchange. If there have been any historic instances of shares in the Company having been recorded as traded on stock exchanges or trading platforms in the EU as BHG claims (which the Company has not been able to verify), this would have occurred on the unregulated segments of those stock exchanges or trading platforms, which are not regulated markets for the purposes of MiFID II or the Companies Act. While we appreciate that there is some complexity in understanding the definition of a "traded PLC" under the Companies Act, this definition is extremely well understood in the capital markets and the distinction between the regimes that apply to companies listed on regulated markets and those which are not marks an important boundary as to the application of EU securities law (including prospectus law, the regulation of stock exchanges, disclosure obligations and shareholder rights).
3. For the same reasons, BHG's assertions that the Company is in breach of sections 1100, 1101, 1104, 1106, 1107, 1108, 1109 and 1110 of the Companies Act are incorrect because those provisions only apply to "traded PLCs", and therefore do not apply to the Company. In any event, even if those sections did apply to the Company, the Company would not have been in breach of their provisions.
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11 Specifically, Point (21) of Article 4(1) of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU.
5
4. BHG's statement that the Company has breached section 175 of the Companies Act is incorrect as the Company has complied with the requirement to convene and hold an annual general meeting within the required statutory time periods.
5. BHG's suggestion that section 680 of the Companies Act is relevant to the current circumstances is incorrect, as that section only applies where a members' voluntary liquidation continues for more than 12 months after the commencement of the winding up, and the
Company is not in a members' voluntary liquidation. The Company has complied with the applicable time period for holding an AGM under section 175 of the Companies Act.
6. BHG's statement that the Company has breached section 1111 of the Companies Act12 is incorrect. The obligation to convene an extraordinary general meeting of the Company, which is determined by reference to the relevant accounts of the Company, has not been triggered. It is incorrect for BHG to suggest that the directors' duties in respect of insolvency, the finding of insolvency by the U.S. Court or the proposal to file for examinership triggers the separate test under section 1111. We refer BHG, in particular, to the audited financial statements of the Company for the fiscal year ended 25 December, 2020, and in particular to the Company's balance sheet set out therein, which clearly demonstrates that the test under section 1111 has not been met.
7. BHG's statement that the Consent Order was "initiated to restrain [the Company's] entire shareholder base (far beyond BHG)"13 is incorrect. The Consent Order was only addressed to BHG and BHG's concert parties. The Consent Order was not binding on any other persons. In this regard, we refer BHG to the terms of the Consent Order which are self-explanatory.
8. BHG's assertion that the Company had entered into the restructuring support agreement dated 10 May 2019 (the "RSA") without "attempting many paths to preserve equity"14 is incorrect. The Company had previously announced a potential spin-off of the speciality generics business in December 2018 intended to preserve equity. Even after the spin-off proposal became unworkable, the Company sought for many months to win creditor support for a reorganisation that would have placed the speciality generics business alone under Chapter 11, thereby preserving member's equity, until developments prevented the implementation of that plan and necessitated the Chapter 11 filing of the Company and its business as a whole.
9. BHG's repeated statements that the Company's current management is seeking to enrich itself with a 10% allocation of the Company's capital is incorrect.15 The reorganisation envisaged by the RSA provides for a management incentivisation plan of up to a maximum of 10% of the Company's post-reorganisation capital, as is common for publicly listed companies, but the grant of awards under this plan will be a matter solely for the board of the Company as it is comprised following the implementation of any reorganisation. That board will be selected by the creditors of the Company who will become the new owners of the Company following the reorganisation. Likewise, the management team of the Company that will be eligible for such awards will themselves be appointed by the post-reorganisation board of the Company. It is therefore incorrect and misleading to characterise this as an award plan for current management.
10. BHG's statement that "virtually no parties support" the RSA is incorrect, as the RSA is supported by 50 U.S. states and territories, counsel for 3,000 municipalities and the holders of over 84% of the guaranteed unsecured notes. Moreover, the Company has recently succeeded in obtaining the support of both official creditors' committees and holders of its outstanding second-lien debt for its plan of reorganisation.
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12 BHG Letter to the Mallinckrodt Board of Directors dated 14 September 2021.
13 BHG Letter to Broadridge, Inc and the Board of Directors dated 7 July 2021.
14 BHG Press Release dated 15 January 2021.
15 BHG Press Release dated 15 January 2021; BHG Letter to Mallinckrodt Shareholders dated 15 January 2021.
6
11. BHG's various assertions that the Company has undervalued the assets of the Mallinckrodt group in the Chapter 11 proceedings is incorrect and has been rejected by the U.S. Court. We note that the Company's asset and liability position will be further reviewed as part of the proposed examinership process which will be overseen by the Irish Court.
12. BHG's assertion that the Company "pillaged the pot" in respect of payments to management, and BHG's other assertions of improper conduct in respect of management payments16, are rejected and incorrect. In particular, we note that the Company's key employee incentive plan, a common feature for companies undergoing restructuring to focus and incentivise staff during a restructuring process, was and is essential to maintaining the operations of the Mallinckrodt group and was approved by the U.S. Court. Contrary to BHG's assertions, the actions by the Company in no way breach the principles set out in Re Winning Ways Limited.17
13. BHG's numerous allegations of fraud by the Company and/or by its directors and officers, including the claims of fraudulent or unlawful action as referenced in sections 717, 721, 722, 877 or 878 of the Companies Act, are incorrect, completely without any factual basis and absolutely rejected by the Company. We note, in particular, that BHG fails to cite any facts, event or evidence that would even remotely support any of these allegations. Instead, it would appear that BHG applies the allegation of fraud to actions of the Company with which it simply disagrees, regardless of the legal meaning of fraud or fraudulent action.
14. BHG makes various references to the Company having breached its Guide to Business Conduct by taking the proceedings which resulted in the Consent Order.18 Leaving aside the fact that BHG consented to the Consent Order, there is nothing in the Guide to Business Conduct that in any way restricts or prohibits the Company from taking action to ensure compliance with U.S. securities laws and/or prevent the unlawful disruption of the Chapter 11 process.
15. BHG has claimed that the Company improperly waived compliance with its stock ownership guidelines on 3 November 2020 (following the commencement of the Chapter 11 proceedings) under which executive officers were expected to hold shares in the Company to a minimum stated multiple of their base salary. It was entirely appropriate for the board to take this action, as the requirement to hold shares with no objective value would be of no benefit to the Company and would undermine the Company's efforts to retain employees through the restructuring. We also note that the Company's Constitution does not include any minimum shareholding qualification or requirement for directors or other officers, nor is there any such other legal requirement.
16. BHG's statements that StrataGraft® somehow puts the Company into a solvent position and should result in recovery for the members is unsupported by any factual analysis and is incorrect. The value of StrataGraft® is properly reflected in the Company's accounts and BHG's statement is a further example of BHG's attempts to create a misleading and inflated impression of the Company's value.
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16 BHG Letter to the Mallinckrodt Board of Directors dated 20 May 2021.
17 [2020] IEHC 264.
18 BHG Letter to the Mallinckrodt Board of Directors dated 2 August 2021; BHG Letter to the Mallinckrodt Board of Directors dated 7 July 2021.
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17. We note BHG's various references19 to a scheme of arrangement to implement the proposed reorganisation of the Company not meeting the criteria in Re Colonia Insurance (Ireland) Ltd.20 and Ballantyne Re plc.21 In respect of the principles set out in those cases, and leaving aside the fact that they addressed the different situation of a Part 9 scheme of arrangement, the Company rejects any suggestion that it has acted other than bona fide, that it has otherwise coerced a minority or that an examinership scheme of arrangement brought in connection with the proposed reorganisation would involve a material oversight or miscarriage. The examiner's proposals for any scheme of arrangement will be subject to the approval of the requisite number of the Company's creditors and thereafter will be a matter for sanction by the Irish Court in accordance with the applicable provisions of the Companies Act. The Company rejects any assertion that the scheme currently in contemplation would breach any of the principles in the cases cited by BHG.
18. We note BHG's reference22 to the English case of Re System Building Services Group Limited23 in the context of the Consent Order, although it is not clear to us which of BHG's arguments it is citing the case in support of. If BHG is suggesting that the case supports the proposition that the directors have a duty to preserve equity value ahead of the interests of creditors in insolvency, that suggestion is incorrect. In fact, that case is authority for the opposite position - i.e. that in insolvency the interests of the creditors become paramount. If BHG is suggesting that the case is authority for there being a prohibition against a company taking proceedings against persons with an interest in its shares, the case makes no such reference and, again, such a suggestion is incorrect. BHG also cites that case in support of the contention that the directors are under an obligation to either hold an auction of the Company's assets and/or hold an auction of the Company's equity, instead of pursuing the proposed reorganisation. Re System Building Services dealt with the very specific situation of directors themselves purchasing property from an insolvent company on off-market terms. The case is not authority for creating a duty or obligation of the directors to hold the type of asset or equity auction which BHG suggests, nor is there any other such legal obligation to do so. On the contrary, having regard to the security over the Company's assets, the duty to preserve assets for creditors and the absence of a mechanism to conduct an equity auction as BHG proposes, there is no avenue for the directors to carry out BHG's proposed course of action lawfully.
To conclude, the Company will be seeking confirmation in the U.S. Courts and subject to same will then pursue an examinership process in Ireland, in each case seeking to protect its interests and for the purposes of implementing the restructuring plan in accordance with Irish law. BHG is entitled to make such representations as it sees fit in this process.
Yours sincerely,
_________________
ARTHUR COX LLP
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19 BHG Letter to the Mallinckrodt Board of Directors dated 2 August 2021; BHG Letter to the Mallinckrodt Board of Directors dated 7 July 2021; BHG Letter to the Mallinckrodt Board of Directors dated 1 June 2021.
20 [2005] IEHC 115.
21 [2019] IEHC 407.
22 BHG Letter to the Mallinckrodt Board of Directors dated 2 August 2021; BHG Letter to the Mallinckrodt Board of Directors dated 7 July 2021.
23 [2020] EWHC 54 (Ch)
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Cc (by post): The Buxton Helmsley Group, Inc.
1185 Avenue of the Americas
Floor 3
New York
NY 10036
Mr Alexander E. Parker
1185 Avenue of the Americas
Floor 3
New York
NY 10036
Broadridge, Inc.
1155 long Island Avenue
Edgewood
N.Y. 11717
United States of America
Office of the Director of Corporate Enforcement
16 Parnell Square
Dublin 1
D01 W5C2
Ireland
9
New York Headquarters |
Mr. Alexander E. Parker |
1185 Avenue of the Americas, Floor 3 |
Senior Managing Director |
New York, N.Y. 10036 |
E. alexander.parker@buxtonhelmsley.com |
|
T. +1 (212) 951-1530 |
|
F. +1 (212) 641-4349 |
VIA REGISTERED U. S. POSTAL MAIL & ELECTRONIC MAIL
board.directors@mnk.com; jane.m.leamy@usdoj.gov; mccoubreys@pcaobus.org; info@odce.ie; marian_lynch@odce.ie; xana_mccarthy@odce.ie; suzanne_gunne@odce.ie; ian_drennan@odce.ie;
|
September 14, 2021 |
Former Directors - All Members |
Ms. Joann Reed, Interim Director |
Mallinckrodt Plc. |
Mr. Carlos V. Paya, M.D., Ph. D., Interim Director |
53 Frontage Road, Shelbourne Building |
Mr. Angus Russell, Former Chairman |
Hampton, N.J. 08827 |
Mr. J. Martin Carroll, Former Director |
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Mr. Paul R. Carter, Former Director |
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Mr. David Norton, Former Director |
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Ms. Anne C. Whitaker, Former Director |
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Mr. Mark Trudeau, Former Director |
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Mr. Kneeland Youngblood, Former Director |
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Mr. David Carlucci, Former Director |
The Honorable John T. Dorsey |
|
Delaware Bankruptcy Court |
|
824 North Market Street, 5th Floor |
|
Wilmington, DE 19801 |
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Attn: Office of the Whistleblower |
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ENF-CPU (U.S. Securities & Exchange Commission) |
|
14420 Albemarle Point Place, Suite 102 |
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Chantilly, VA 20151-1750 |
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Attn: Ms. Jane M. Leamy
Office of the United States Trustee
U.S. Department of Justice
844 King Street, Suite 2207
Wilmington, DE 19801
Mr. Sam McCoubrey
Senior Counsel, Division of Enforcement and Investigations
Public Company Accounting Oversight Board (PCAOB)
1251 Avenue of the Americas
New York, N.Y. 10020
Office of the Director of Corporate Enforcement |
Ms. Marian Lynch |
16 Parnell Square |
Ms. Xana McCarthy, Investigator |
Dublin 1 |
Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland |
Mr. Ian Drennan, Director of Corporate Enforcement |
Re: Notice of Whistleblower Report Filed (via U.S. Securities and Exchange Commission) - Securities, Bankruptcy, Accounting, and Electoral Fraud at Mallinckrodt Plc. (OTC: MNKKQ) - Accounting Fraud by Concealment of Contingent Liabilities (Recognition Required under FASB ASC, § 450-20-25-2), Insider Trading by Board of Directors and Management on Information Undisclosed and Fraudulently Withheld/Omitted from Securities Filings, Proxy Fraud by False Statement and Fraudulent Omissions, Active and Willful Breach of the Companies Act of 2014, § 1111 ("Obligation to convene extraordinary general meeting in event of serious loss of capital"), Fraudulent Removal of Assets at Time of Known Insolvency (Violation of Ireland's Companies Act of 2014, § 717), Electoral Fraud (Shareholder Coercion via Restraining Order) by the Powers of the Board, Shareholder Restraining Order in Violation of the Companies Act of 2014, § 212, Fraudulent Reappointment of Dismissed Directors (by Also-Dismissed Directors, at August 13, 2021, Annual General Meeting), Breach of Articles of Association, § 81, and Fraudulent Omissions and Statements During Chapter 11 Proceedings
Ladies and Gentlemen of the (Former) Board (the "Board"):
The Buxton Helmsley Group, Inc. ("BHG") addresses this letter to all dismissed (at the August 13, 2021, Annual General Meeting) directors of Mallinckrodt Plc. (the "Company"), to address what is truly one of the largest cases involving endless bouts of (willfully ongoing) fraud before a United States Bankruptcy Court, its federal judge (The Honorable John T. Dorsey), the United States and its Securities and Exchange Commission, the United States Public Company Accounting Oversight Board ("PCAOB"), along with the Government of Ireland and its Office of the Director of Corporate Enforcement (the "O.D.C.E."). After all parties read this letter, I do not believe they will be compelled to anything but absolute outrage in light of such perversion of the laws and justice system of both the United States and Ireland. Unfortunately, your director and officer insurance policy does not relieve you of non-monetary consequences as a result of your insider trading alone, your numerous category offenses under Irish law (some carrying more years in prison than others), not to mention other issues such as, perhaps, your fraud as part of your July 2, 2021, proxy statement, and otherwise. Your acts have unequivocally crossed into fraudulent, criminal territory, numerous times over (as will be detailed throughout this letter). Though you tried to creatively hide acts like your now-admitted insider trading in securities filings, after clearly being compelled to "disclosure" (more like, coming clean), you did not do a very good job at doing so. That same information, and other information, you fraudulently omitted and did not disclose to the United States Bankruptcy Court either. The purpose of the United States Bankruptcy Court is to get a debtor to the finish line of confirmation of a plan to restructure, but not through fraud by omission and illegal acts.
All parties, including the bankruptcy court for which you have also gaslighted through fraudulent statements and omissions throughout your pending chapter 11 proceedings, are being sent this message. This Board and management's modus operandi to achieve a self-serving agenda through deception, fraudulent omission, and lies, will be crystal clear by the end of this letter. To be clear, this information is being provided to the U.S. Bankruptcy Court, but it is their decision as to whether they will stand for such numerous instances of fraud and violations of law that, even on the first-disclosed violation (on the next page, this Board's ongoing, willful breach of the Companies Act of 2014, § 1111), as a category 3 offense, carries prison time (with that violation, up to 6 months of prison, under Irish law) for all complicit Board members, not to mention all other unequivocal acts of fraud and violations of law detailed out herein that - in some cases - make that 6 months in prison pale in comparison (in the case of category 1 and 2 offenses detailed herein). BHG's Irish counsel (one of the top law firms in Ireland) is entirely briefed on all illegal acts and instances of outright fraud by this Board and are ready to inform the High Court of Ireland (we have informed as many regulators as possible, in the meantime, through whistleblower filings, this letter, and otherwise) to subject directors to the very explicit statutory consequences of their actions.
To get started, the enclosed matters of stated fraud upon the court, multiple violations of 18 U.S. Code § 157, are self-evident. They independently satisfy the preponderance of the evidence standards as for bankruptcy fraud, as established in Grogan v. Garner and reaffirmed in Tenn-Fla Partners v. First Union National Bank of Florida. The violations committed by this Company were highly pernicious, involved officers of the court, and qualify as fraud upon the court, as defined by the criteria set forth in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993):
1. On the part of an officer of the court;
2. That is directed to the "judicial machinery" itself;
3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth;
4. That is a positive averment or is concealment when one is under a duty to disclose;
5. That deceives the court.
Given the unequivocal fraud upon the court (and further fraud via filings with the U.S. Securities and Exchange Commission) by this Company outlaid hereafter, any such confirmation of this plan will have then been "procured by fraud" by this Board (bankruptcy fraud, securities fraud, and, by the present claims of this Company, accounting fraud), along with on a foundation of numerous violations of Irish law that the bankruptcy court is unaware of due to the Company's defying of their statutory obligations under their country of incorporation's regulations through fraudulent omissions and statements before the bankruptcy court, clearly meeting the standards set for the revocation of an Order of Confirmation, pursuant to 11 U.S. Code § 1144 (even just based on accounting fraud, not to mention the other fraud detailed hereinafter, if this Company wants to stick to its story, as part of its fraudulent concealment of admittedly supposedly so absolutely known contingent liabilities explicitly required to be recognized under FASB ASC topic 450-20-25-2). It would be the true "irreparable harm" of all stakeholders to "scramble the egg", with known instances of fraud that would already constitute sufficient grounds for revocation of such an Order of Confirmation, without curing the harms of those instances of fraud (where it is even possible) and violations of Irish law, that were only perpetuated due to those instances of willful, continued fraud by omission and false statements by this Company (and by no opposition, this Board), both in the bankruptcy court, in securities filings, and - by virtue of the Board's story - financial statements. Until those violations are cured, no plan should be confirmed, being any order of confirmation already meets the standards set for the revocation of an Order of Confirmation, and also since - as detailed at the end of this letter - such violations of Irish law (from the start, this Company's obligation to hold an extraordinary general meeting prior to beginning any insolvency proceedings, pursuant to the Companies Act of 2014, § 1111, as detailed below), illegal coercion of stakeholders, improper/prejudicial constitution of creditor classes, among other factors, already explicitly, preliminarily precluding any "scheme of arrangement" put forth by this Company from being sanctioned/approved by the High Court of Ireland, as set forth In re Colonia Insurance (Ireland) Ltd. [2005]. Any perpetuation of this "scheme of arrangement", on the foundation of numerous violations and conditions that would automatically preclude its sanctioning/approval, and also would constitute already highly-sufficient grounds for revocation of any such Order of Confirmation, would be at the express detriment of all stakeholders involved (flushing countless millions of dollars per month down the drain on what is already precluded from sanctioning/approval), and at the further breach of this Board's duties, by continuing their known perpetration of fraud upon the court, securities fraud, if this Board wants to stick to its story, accounting fraud, and numerous ongoing breaches of Irish law that this Board refuses to cure, despite the statutes being laid in their laps month after month.
The fact that this Board thinks proceeding to the High Court of Ireland is going to result in sanctioning/approval of their "scheme" and a pat on the back for their hard work, based on a foundation of numerous acts of fraud and violations of Irish law, is absolutely mind-boggling and a slap in the face to the Irish government. The Irish laws cited herein are in place to prevent the very acts of this Board, and there is a reason why those acts and violations carry prison time; up to 6 months in prison for this first explicitly violated statute alone (not to mention all of the others detailed hereafter).
To get started, directly from the Companies Act of 2014, § 11111:
1111. (1) Where the net assets of a PLC are half or less of the amount of the PLC's called-up share capital, the directors of the PLC shall, not later than 28 days after the earliest day on which that fact is known to a director of the PLC (the "relevant day"), duly convene an extraordinary general meeting of the PLC.
(2) That extraordinary general meeting shall be convened-
(a) for the purpose of considering whether any, and if so what, measures should be taken to deal with the situation; and
(b) for a date not later than 56 days after the relevant day.
(3) If there is a failure to convene an extraordinary general meeting of a PLC as required by subsections (1) and (2), each of the directors of the PLC who-
(a) knowingly and intentionally authorises or permits that failure, or
(b) after the expiry of the period during which that meeting should have been convened, knowingly and intentionally authorises or permits that failure to continue, shall be guilty of a category 3 offence.
(4) Nothing in this section shall be taken as authorising the consideration, at an extraordinary general meeting convened in pursuance of this section, of any matter which could not have been considered at that meeting apart from this section.
This Board is on active notice of breach of the Companies Act of 2014, § 1111,2 which statutorily required that, at the time this Board was anything less than entirely, absolutely confident that net assets (equity) of this Company were half or more than paid-up share capital (well before retaining a law firm to engage this reorganization plan on a foundational, though still factually unjustified, claim of net assets supposedly having dropped into negative territory), this Board was statutorily required to "duly call an extraordinary general meeting … for the purpose of considering whether any and, if so, what measures should be taken to deal with the situation" (it was, and still is, with your ongoing, willful default under that statutory obligation, illegal to not notify your shareholders of and freeze your shareholders out of that process of deciding how the headwinds of this Company are dealt with, and far before you would even think of deciding to enter any possible insolvency proceedings in any court around the globe). You are in active breach of that statute, which is a category 3 offense under Irish companies law, and this official notice triggers your absolute obligation to cure that default without further willful breach and violation, such as any application to enter examinership proceedings, are made (any further decisions or actions prior to curing that default demonstrates "intentional authorization or permits that failure to continue", which, as stipulated, immediately subjects you to a category 3 offense under that statute). If this Board is not aware, such a category 3 offense carries up to 6 months in prison and fines.3 If you hold anything but a general meeting where shareholder rights are unobstructed, in complete compliance with all obligations under the Companies Act of 2014 and this Company's Articles of Association, just the same as what would have happened if you actually followed the law and held that EGM when it was statutorily required, long before entering these chapter 11 proceedings, that is not curing your default on the Companies Act of 2014, § 1111, and you will still then face that category 3 offense, carrying up to 6 months in prison and fines. A half-cocked, unlawful extraordinary general meeting (like your August 13, 2021, annual general meeting) that does not allow for the exercise of all shareholder rights that you admitted in your August 2, 2021, private letter to BHG, wherein you admit that shareholder rights are fully protected under the Companies Act of 2014 and Articles of Association (the reason why you were required to solicit for shareholder proposals and director nominations, though ever-so-fraudulently, as you held a restraining order to hold shareholders in contempt if they responded to your solicitation for those items to be submitted), is willful continued default on a fully lawful EGM to allow for full shareholder input on what is done with this company to "deal with" our issues - you were legally required to hold that before even contemplating chapter 11 plans, let alone filing a chapter 11 petition without warning (fully illegal and, again, an offense carrying up to 6 months in prison and fines).
1 http://www.irishstatutebook.ie/eli/2014/act/38/section/1111/enacted/en/html
2 http://www.irishstatutebook.ie/eli/2014/act/38/section/1111/enacted/en/html
3 https://www.cro.ie/Annual-Return/Missed-Deadlines/Offences
BHG is putting you on notice of your breach of holding the long defaulted on EGM this Board was required to call far before now, well before you even entered these chapter 11 proceedings. Per your admission that you are absolutely bound by the Articles of Association and the Companies Act of 2014 in the enclosed August 2, 2021, private letter to BHG, it is a shareholders' absolute right to place any proposals/items on the agenda of a general meeting, pursuant to the Companies Act of 2014, § 1104, and the Company's Articles of Association. Any obstruction of that absolute right of shareholders, just the same as this Company's admitted absolute right to vote under those documents, is further violation of the Companies Act of 2014, § 212, which absolutely prohibits the powers of the Board being used to oppress shareholder rights. Cherry-picking which rights you afford to shareholders is also a violation of the Companies Act of 2014, § 1100. That long defaulted on, statutorily mandated extraordinary general meeting of the shareholders was required by law to ensure a situation like this would never occur and to keep a company's board of directors accountable to explain and justify their actions. Had you followed that statutory obligation and not gone rogue to hijack the Company from its shareholders, you would have had no ability to illegally enjoin your shareholder rights entirely to further illegally freeze out your shareholders, put forth a restructuring plan (without consulting the shareholders of this Company, as statutorily required) with no justification and only speculation (entirely different than before you thrusted this Company onto such an undisclosed path) to achieve a convenient, self-serving agenda (for which, you would not be harmed by, due to your long-time incompliance with ongoing equity ownership requirements), then to call an entirely fraudulent annual general meeting to attempt a false front of compliance with the Companies Act of 2014, § 175, having already enjoined every shareholder's rights (never having disclosed to the bankruptcy court your intent, nor future obligation, to call that annual general meeting at the time of requesting to enjoin every shareholder's rights), leaving the meeting entirely fraudulent and unlawful, in violation of the Companies Act of 2014, §§ 212, 1100, 1101, 1104, 1106, 1107, 1109, and 1110 (just to name a few violated statutes). It is an absolute obligation under BHG's fiduciary duty to its clients to put you on notice of all violations of the law, and they are numerous. If this Board refuses to, without delay, cure your default on your absolute obligations under the Companies Act of 2014, § 1111, as required by the terms of that statute, to resolve that shareholders approve of your present course (and to allow them to place resolutions on that agenda, pursuant to that absolute right of shareholders, pursuant to the Companies Act of 2014, § 1104), "[permitting] that failure to continue", you will have to face the consequence of such a category 3 offense - that is both a breach of duty and violation of the Irish law that you took an oath to uphold. If you say you are not going to cure the violation because you got this far violating, that is the exact "permitting the failure to continue" that the statute explicitly states will carry up to 6 months in prison once you face the music of this case hitting Irish soil. You have only gotten this far on violating the law, plain and simple. That is, that violation, along with your violation of the Companies Act of 2014, § 212 (detailed below), by even requesting your restraining order to strip the rights of all shareholders, let alone being in possession of the order. The Office of Director of Corporate Enforcement of Ireland and U.S. Securities and Exchange Commission are firmly aware of these violations as well. United States corporate law does not afford such protection that a board of directors cannot hijack a company from its shareholders to institute such capricious plans without consulting their shareholders through such a statutory obligation of a special shareholder meeting to approve of such plans, but Irish law does, and you both were and are absolutely obliged to follow Irish law at all times, and you have long defaulted on it, to a point that now equates to prison time. Any plan that this Board puts forth, is entirely illegal (derived from a breach of the very first step that was to have taken place, prior to any decisions being made, as part of the Companies Act of 2014, § 1111) and will - again - subject you to that category 3 offense (prison time and fines), as explicitly prescribed and stipulated in the statute. BHG's Irish counsel is very aware and ready to inform the High Court of Ireland of this violation, should you attempt to further breach that statute by applying to enter examinership proceedings while still in active breach, having not held that statutorily required extraordinary general meeting (that is, an entirely lawful shareholder meeting, compared to your entirely fraudulent and unlawful August 13, 2021, AGM - one that is actually compliant with the numerous statutes that caused you to instruct BHG behind closed doors to violate the restraining order that you realized was unlawfully infringing on shareholder rights as part of any shareholder meeting under Irish law) well before you were to even decide to enter examinership proceedings (or, chapter 11 proceedings, for that matter). You are not allowed to make that decision to enter examinership proceedings, without having discussed and received the express approval of those plans from shareholders (as part of that statutorily required EGM) in a binding vote as part of a special resolution to affirm and get that required sanctification of plans (if shareholders do not approve of your course of action to "deal with the situation" as part of such a vote, you are not allowed to pursue that course of action), to also absolutely ensure that all options of interest for resolving the headwinds of this Company (to entirely ensure value maximization throughout the entirety of the capital structure, for both creditors and shareholders) are explored (this Board grossly neglected exploration of numerous strategic alternatives), as - again - statutorily required by the Companies Act of 2014, § 1111.
Your time to convene that EGM, to avoid such a category 3 offense, was months upon months ago (specifically, 28 days after you first pondered the claim of needing to cancel existing equity in knowledge of your claimed "hopeless insolvency", as defined in the Companies Act of 2014, § 1111(2)(b)). As part of that EGM, it is - again - the absolute right of shareholders, under the provisions of the Companies Act of 2014, § 1104, to place items on the agenda of a general meeting (directly the title from that statute, the "Right to put items on the agenda of the general meeting"). Oppressing the right of shareholders to place items on the agenda of a general meeting is a further breach of the Companies Act of 2014, § 212, which statutorily prohibits the oppression of shareholder rights. Further, if you single out and retaliate against shareholders, such as dissident shareholders "acting in concert" (prejudicial treatment based on the "position" of shareholders), that is a further breach of the Companies Act of 2014, § 1100, which makes cherry-picking which shareholders you afford certain rights, based on their "position", illegal. BHG and the 13D group, as part of the statutorily required EGM to be held as part of your active breach of the Companies Act of 2014, § 1111, expressly wish to place items on the agenda of the EGM (our absolute right under that document you admitted you were bound by, in the enclosed August 2, 2021, letter, the Companies Act of 2014), which this notice of default on your obligations under the Companies Act of 2014, § 1111, triggers your obligation to hold prior to applying for entry into Irish examinership proceedings. It is this Board's obligation to ask every shareholder which items/proposals/nominations they may wish to submit to be placed on the agenda of any meeting of the shareholders (to be voted on), pursuant to the Companies Act of 2014, § 1104, and it is a violation of this Board's obligations under the Companies Act of 2014, § 212, to oppress the voice of any shareholders (impeding on that shareholder's absolute right under the Companies Act of 2014, § 1104) by cherry-picking which agenda items they will include or allow. Such prejudicial cherry-picking of which proposals you allow is no more a violation of that absolute right of shareholders now than it would have been if you actually held a meeting of the shareholders when you were statutorily required to long ago under the Companies Act of 2014, § 1111. Entering chapter 11 in unequivocal evasion of this Board's obligation of the Companies Act of 2014, § 1111, does not give this Board a right to violate the Companies Act of 2014, §§ 212 and 1104, by disallowing certain items from the agenda of a general meeting since you illegally delayed in holding that meeting. Any deviation from an entirely lawful general meeting, such as in the case of the EGM that is absolutely required under the Companies Act of 2014, § 1111, unobstructive of all absolute rights of shareholders (including our rights to place any items we wish on the agenda of the general meeting), still constitutes willful breach of that Companies Act of 2014, § 1111, statutory obligation, and will subject you to a category 3 offense - you are not allowed to run another entirely fraudulent and unlawful general meeting of the shareholders, if you do not want to face up to 6 months in prison. It is also entirely fraudulent (and a violation of that absolute right of shareholders to place items on the agenda of a meeting) to hold a restraining order that would preclude shareholders being able to respond to such a required solicitation of every shareholder for items/proposals to be included on the agenda of a general meeting. Obstructing those rights of any 13D members (any shareholders at all) to place items, such as director nominations or shareholder proposals on the agenda of a general meeting, is obstruction of the Companies Act of 2014, §§ 212 and 1100, along with - by your admission in the proxy statement - this Company's Articles of Association. Further, your restraining order is a direct obstruction of your statutory obligations to not impede on a financial institution's ability to fulfill shareholder right exercise instructions (voting, director nomination, and shareholder proposal submissions) at the direction of its clients (as is a financial institution's obligation to follow the instructions/wishes of its clients, as a fiduciary duty), pursuant to the Companies Act of 2014, § 1108. You are not allowed to choose which provisions of the Companies Act of 2014 and this Company's Articles of Association you abide by - you are bound by the entirety of those documents, as professed and confessed in the enclosed August 2, 2021, letter. Those rights to submit shareholder proposals and directors to be voted on as items on the agenda of the meeting (to replace the dismissed, interim directors, Joann A. Reed and Carlos V. Paya, M.D., Ph.D., serving as placeholder directors after having been voted out, along with the entire rest of the Board at the August 13, 2021, AGM) are explicitly protected and afforded rights, per your admission. You also may not, as you did in the July 2, 2021, proxy statement for the legally incompliant August 13, 2021, annual general meeting, fraudulently state that director nominations and shareholder proposals are being accepted for inclusion, at the same time that you have a restraining order to make it illegal for shareholders to respond to your proxy materials "soliciting" for the submission of those items to be included on the voting ballots and agenda of the meeting, effectively booby-trapping all shareholders - that is fraud (securities fraud, proxy fraud, and electoral fraud) and both a violation of the Articles of Association and Companies Act of 2014, which - as I do not know how many times I must remind you - you already confessed you were bound to abide by. For just a list of some of the statutes your fraudulent August 13, 2021, annual general meeting was incompliant with, you may - again - refer to the Companies Act of 2014, §§ 212, 1100, 1101, 1104, 1106, 1107, 1109, and 1110 (that is not an all-inclusive list of violated statutes as part of that unlawful annual general meeting).
At the time of your requesting a restraining order governing and restricting the rights of all shareholders (far beyond your scapegoat of BHG, given you used hollow allegations, for which you had no private cause of action to rely on, a just-as-hollow excuse to strip the rights of all shareholders, which you later admitted were the absolute rights of shareholders, given every shareholder was subject to being held in contempt at your choosing, per the injunction, § 6), this Company (by allowance, through no opposition, of the Board) fraudulently omitted disclosure of the very material facts that would have entirely derailed your case for a restraining order against your shareholders being legally permissible under any circumstances:
1. You did not disclose to The Honorable John T. Dorsey that shareholder oppression is illegal under the Companies Act of 2014, § 212,4 explicitly prohibiting shareholder oppression, and that you were statutorily required to maintain uninterrupted shareholder meetings and, therefore, democracy (which would therefore preclude the oppression of shareholder rights, for which extraordinary general meetings remain an absolute right of shareholders, even if not included in a Company's constitution, pursuant to the Companies Act of 2014, § 178(1)(b)), even throughout restructuring, as further supported by the Companies Act of 2014, § 175,5 which is why you were required to hold the August 13, 2021, annual general meeting and "election", which you did not disclose such a future required obligation to the court at the time of your request for the restraining order to oppress/restrict the rights of all shareholders (ahead of that "election"), nor did you come clean about your illegal order at the time you began preparing your July 2, 2021, proxy statement filing.6 Your illegal oppression rendered the "election" and shareholder meeting outcome entirely manufactured and fraudulent. The Companies Act of 2014, § 175, and your admission of being required to hold an annual general meeting (though, your meeting was entirely unlawful and fraudulent), along with the prohibition of shareholder right oppression under the Companies Act of 2014, § 212, explicitly demonstrates and proves the statutory requirement for uninterrupted democracy and shareholder rights at all times, until shareholders are struck from the record by the High Court of Ireland.
Directly from the Companies Act of 2014, § 212:
212. (1) Any member of a company who complains that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised-
(a) in a manner oppressive to him or her or any of the members (including himself or herself), or
(b) in disregard of his or her or their interests as members,
may apply to the court for an order under this section.
The only order that could cure this Board's ongoing violation of admittedly-protected shareholder rights, would be an order to vacate the injunction that is oppressing all admittedly-protected (admitted by this Company in their below-discussed August 2, 2021, private confession letter to BHG) shareholder rights. Yet, you also oppressed shareholder rights to seek such an order from the High Court of Ireland (also illegal oppression, restriction, and coercion of your shareholders). Why even possess the restraining order when you tell shareholders to violate the prohibited actions? Your claim in the below-discussed, enclosed August 2, 2021, private letter to BHG that our admittedly-protected right of voting was not an act of "electing" or "removing" directors, "directly or indirectly" (all the exact words from your restraining order) is ridiculous - you did not want to admit you over-oppressed and surely did not want to explicitly state to violate your order, but your telling BHG that it is okay to vote is your instruction to violate your fraudulently- and illegally-obtained, illegally-oppressive (in unequivocal violation of the Companies Act of 2014, § 212), restraining order, even if you did not want to say "you may vote in violation of the active restraining order".
Very simply, how can you defend that your forcible violation of every shareholder's admittedly-protected rights, far beyond BHG, is not an action oppressive of shareholder rights and interests, even if you were able to obtain "consent" to your illegal act under duress of further threats to and coercion of BHG (your scapegoat of hollow allegations to enjoin every shareholders' rights), and when you admit, in writing, within your August 2, 2021, letter to BHG, that those rights are fully protected and preserved, not to be obstructed, by the Companies Act of 2014 and this Company's Articles of Association? And if you claim that your restraining order only applies to certain shareholders (or that the Board can, again, cherry-pick whom the injunction restricts the rights of), then that is further admission of violating the Companies Act of 2014, § 1100, which "[ensures] equal treatment for all members who are in the same position with regard to the exercise of voting rights and participation in a general meeting of the company." Just because shareholders are of a dissident position, does not grant you the right to prejudicially violate the rights of those shareholders in violation of that Companies Act of 2014, § 1100, statute that prohibits such prejudicial violation of rights based on the position of a shareholder. Further, your prohibition of BHG, as a registered financial intermediary, being able to exercise rights at the instruction of its clients (as an absolute fiduciary obligation), is - again - unequivocal obstruction of the Companies Act of 2014, § 1110. You have entirely obstructed BHG's ability to fulfill the instructions of its clients, as a financial intermediary, as to putting forth shareholder proposals and director nominations per the wish/instruction of its clients, unequivocally, in unambiguous obstruction of that statute. BHG also has absolute harms from your obstruction of BHG's ability to fulfill its fiduciary duty to clients, as also protected by that Irish statute. The violations just keep stacking up…
4 http://www.irishstatutebook.ie/eli/2014/act/38/section/212/enacted/en/html
5 http://www.irishstatutebook.ie/eli/2014/act/38/section/175/enacted/en/html
6 https://www.sec.gov/Archives/edgar/data/1567892/000119312521207066/0001193125-21-207066-index.htm
2. You also did not disclose during the hearings on your already-illegal injunctive order to strip the rights of all shareholders, that the Companies Act of 2014, § 175, further supports the requirement (and no permissibility of abandoning) of democratic processes, which would require you to hold the recent August 13, 2021, annual general meeting and election, after you already gagged and stripped the rights of all shareholders. The restraining order was only issued due to the fraudulent absence of full and frank disclosure of Irish law that the injunction would violate, and that it was statutorily mandated that shareholder meetings continue, uninterrupted, throughout the chapter 11 proceedings. You also never disclosed to the bankruptcy court that you were required to, yet illegally did not, hold an extraordinary general meeting of the shareholders before you thrusted this Company into this chapter 11 process with any reorganization plans at all, given the provision of the Companies Act of 2014, § 1111. The fact that an order, illegal under Irish law, was issued, is entirely the fault of this Board and management due to their fraudulent omission of fact (multiple facts). Rather than honestly disclose your intentions, circumstances, and obligations as an Irish Company, you, this Board, pulled the wool over the eyes of and maligned a foreign court by fraudulently omitting that hidden agenda and those obligations as an Irish Company, and have continued to do so. The intended cure to your claim of "irreparable harm", by issuing that order, was not to allow for violation of Irish law because it was convenient for and would further the agenda of this Board to perpetrate a fraud (entirely fraudulent, manufactured "election" and annual general meeting in violation of numerous statutes surrounding the lawful conduct of shareholder meetings). The "irreparable harm", with the possibility of an extraordinary general meeting that might result in your dismissal, when you were already supposed to hold that meeting before you even concocted your reorganization plans, would have been stakeholders uncovering everything illegal you were and are likely further hiding, including your concealed insider trading you disclosed 5 months after the fact, and ongoing breaches of Irish law, which you have fraudulently withheld from the bankruptcy court. The intent of the order was to stop a shareholder meeting from occurring at all because of the "irreparable harm" you claimed disposition/replacement of board members would cause (that is, under your fraudulent representation that such oppression of democracy was legal under Irish law, which you did not disclose was entirely prohibited under the Companies Act of 2014, § 212, even during insolvency proceedings, as also further supported by the requirement of the August 13, 2021, annual general meeting under the provision of the Companies Act of 2014, § 175) - not a cue for this Board to violate the restricted activities of their own restraining order (that they just claimed would cause such "irreparable harm", if engaged in) by running a fraudulent shareholder meeting and "election" (as you did on August 13, 2021) to attempt a just-as-fraudulent front of compliance with that Companies Act of 2014, § 175. Again, you obtained your requests through fraud by omission; plain and simple. Had you fulfilled your duty to disclose, through full and frank disclosure of all facts and relevant obligations under the laws of your country of incorporation, you would never have obtained your order. Deception and fraud by omission to get an illegal act to the finish line does not make the act legal.
You would have never obtained BHG's "consent" under duress (consent to an illegal act does not make the act legal) if you had not fraudulently omitted that the Company's request was illegal to begin with under Irish law. If someone is creative enough to get the goods home after stealing them without getting arrested (like your creative use of getting "consent" to an illegal act from the victim after fraudulently omitting the illegality of the act from a foreign court), that does not absolve the person of the crime. You, again, preyed on the fact that the foreign court and entity/person (BHG and myself, personally) for which you were attempting to illegally violate (oppression of shareholder rights, in direct violation of the Companies Act of 2014, § 212) were unaware that the act of shareholder oppression was illegal, and preying on the fact that you were able to obtain the result you wanted, no matter how illegal it was, through fraudulent omission, as you continued through with violating the law.
Let me also briefly compare your allegations in your "adversary" lawsuit against BHG (so puzzling how you label your shareholders "adversaries" as you still seek their approval in a shareholder meeting on your re-election and compensation), to this Board's absolute proxy fraud. First, you claimed that BHG was supposed to file a proxy statement, when we - after further research - believed that we were able to rely upon an exemption, due to the foreign status of the Company and conflicting laws between the United States and Ireland. We did not further research the situation after abandoning the idea of any proxy contest at all, but the entire situation was, at worst, a "good faith" violation, if it was at all, as even the U.S. Securities and Exchange Commission lawyer told BHG and its counsel (we also have that conversation recorded). This Company also had no tangible damage as a result of the possible "good faith" violation. It is also the right of this shareholder base to insert its opinion and exercise their rights, unrestrictedly, under the Companies Act of 2014, § 212. Shareholders exercising their voice and rights due to this Board's engagement of an unapproved plan to reorganize in violation of the Companies Act of 2014, § 1111, is not damage to this Company, but damage to the shareholders for which you violated the rights and protection of under that Companies Act of 2014, § 1111, statute. This Board, on the other hand, filed a proxy statement7 for its August 13, 2021, Annual General Meeting and entirely tampered "election" where every single one of you were voted out, in which (within that proxy statement) this Board indisputably committed fraud by omission and false statements, which I detail shortly. That is not a misstep, and outright willful fraud. Far from anything that could be deemed a "good faith" mistake. You also sneakily filed that proxy statement without disclosure to the bankruptcy court, after you already requested (and obtained through your other fraudulent statements and omission) every shareholder act that is required for a shareholder meeting and according election to be made legitimate, be restricted and prohibited through a restraining order. In your July 2, 2021, proxy statement regarding the August 13, 2021, Annual General Meeting, you committed actual fraud by omission when you did not mention even once that you were in possession of an actual restraining order to preclude your shareholders from exercising any of their rights (voting, nomination of directors, submission of shareholder proposals, etc.) that you were "soliciting" for response to, when you could then hold them in contempt of court if they responded to that "solicitation" for submission of shareholder proposals, director nominations, etc. You also committed fraud by omission not disclosing that the order would manufacture the outcome of and tamper your election. You further committed fraud by false statements that director nominations were being accepted, when you already precluded that act of "nominating", "directly or indirectly", in your already-active restraining order, leaving it an absolutely fraudulent "solicitation" for shareholders to exercise their rights under the Companies Act of 2014 and Articles of Association, leaving out that, if shareholders did exercise those absolute rights, you possessed a restraining order to hold them in contempt of court. You also, even further, committed fraud, by fraudulently "soliciting" for shareholder proposals, while you - again - were in possession of a restraining order to hold shareholders in contempt of court if shareholders "propose[d] any matters to be acted upon by Mallinckrodt shareholders" (from the shareholder restraining order, § 1(c)). That is securities fraud, plain and simple, on top of the already-existing electoral fraud and fraud by omission and false statements (to be covered further soon) before a federal bankruptcy court.
Then, after BHG continued exposing the electoral fraud at hand by the powers of this Board and management via letters included in 13D filings, the Company sent a self-impeaching, private letter on August 2, 2021 (enclosed), to BHG's Delaware legal counsel. In that letter, you made an ever-impeaching statement:
"The exercise of voting rights remains subject to the Companies Act 2014 of Ireland and the Memorandum and Articles of Association of Mallinckrodt plc."
In that single sentence, you admitted multiple items:
1. Your shareholders had an absolute right to vote under those referenced documents (the Companies Act of 2014 and this Company's Articles of Association), yet you already precluded any act, "directly or indirectly", to "elect", "appoint", "remove", or "replace" any director of the Company - any voting would violate those restricted/prohibited actions. So, you admitted in that private letter to BHG, by telling BHG that voting is a protected right, that you were absolutely infringing on a right that was absolutely protected under the Companies Act of 2014 and the Company's Articles of Association, then - instead of repealing the order - instructed BHG (a single shareholder), privately, that it was our right to violate the restraining order you obtained through fraud, when you are still publicly telling every other shareholder that those supposedly-stripped, admittedly-protected shareholder rights are illegal to exercise. Also, you only piecemealed one of our many illegally stripped, admittedly-protected rights back to us (only our right to vote), while you were already illegally infringing on not only that protected right (given, you did not also instruct all other shareholders to violate your issued restraining order by voting), but all the other rights (the right to submit director nominations and shareholder proposals), which you left the restraining order in place to continue illegally infringing on. Not that it would have mattered if you vacated the restraining order at that time anyhow, as it was already past the deadlines to exercise those other protected rights, where your "irreparable harm" to this shareholder base was already cemented with regards to that sham of an "election" process as part of an entirely unlawful (statutorily required) annual general meeting and "election". So, when you clearly realized your order was too illegal for comfort and felt compelled to try to cover up your mess, you did not vacate the restraining order (though, it would have - again - been already too late), but instead sent a private letter to a single shareholder out of the thousands you were admittedly, illegally infringing upon the rights of as part of the injunction, § 6, and instructed us to violate the restraining order by voting. Voting, unequivocally, would constitute an action, "directly or indirectly", to "elect", "appoint", "remove", or "replace" any director of the Company.
7 https://www.sec.gov/Archives/edgar/data/1567892/000119312521207066/0001193125-21-207066-index.htm
2. You admitted that you are subject and bound to the Companies Act of 2014 and the Company's Articles of Association. Where in that Companies Act of 2014 do you see an exemption to its § 212 that you may rely upon (you cannot create an exemption out of thin air because you think it would further your agenda to violate that regulation)? Violating the law to achieve an objective is still illegal when there is no stated, explicit, available exemption to rely on, and your further action of knowing you were required to - at minimum - hold a meeting of the shareholders at least once every 15 months proved your illegal action of attempting to end this Company's democracy and shareholder rights. You also do not have an exemption to the absolute right of shareholders to call an EGM, as proven by the explicit provision that provides for the right of shareholders to an EGM, even if not included in the Company's constitution (Companies Act of 2014, § 178(1)(b)), especially when an EGM is required statutorily to be called when a Company is on the verge of insolvency (well before actual insolvency), as statutorily mandated by the Companies Act of 2014, § 1111, which you were - earlier in this letter - notified that you are in breach of (which results in a category 3 offense, carrying up to 6 months in prison and fines). So, with that right to an EGM, explicitly protected by the Companies Act of 2014, which this Company already admitted it is bound to abide by, how do you think you have any right to override the right to an EGM, when it is statutorily mandated right (even if not stipulated in a Company's constitution), and especially when it is specifically mandated to call an EGM (prior to making any decisions) to determine the shareholder-condoned route of resolution when a company is on the verge of insolvency (Companies Act of 2014, § 1111), and you are in breach of and still defaulting on that statutory obligation of an EGM as it is? Also, again, I remind you that not only are voting rights protected, but also our rights to "place items on the agenda of the meeting" (a right protected specifically by the Companies Act of 2014, § 1104), whether a shareholder proposal or director nominee to be voted on (both rights also protected under the Company's Articles of Association, also admitted by this Board as you were fraudulently "soliciting" such admissions in the proxy statement, as a booby-trap to hold shareholders in contempt of court if they took you up on your "offer" to exercise those admittedly protected shareholder rights).
As one more instance of proxy fraud, how about we point out that, in your July 2, 2021, proxy statement, you represented your compensation plan was comparable with the peer group companies listed? Not one of those listed "comparable" peer group enterprises has an all-cash compensation plan. Not one. And two of those companies are also affected by opioid-related litigation. Neither of those companies, facing the same headwinds as this Company, have an all-cash compensation plan, and still have an appropriate mix of equity- and cash-based compensation to ensure alignment with equity holder interests. This Board committed fraud in their representation of those companies listed in the peer group analysis having comparable compensation plans. Nowhere did this Board disclose that not one Company in that group had an all-cash Compensation plan - you fraudulently omitted that, and misrepresented a peer group analysis, plain and simple. You were beyond incomparable to that peer group - there was no comparison to be had. I can also tell you that, had you actually complied with your obligations under the Companies Act of 2014, § 1111, and put forth your present plan to shareholders to cancel existing equity interests with no factual justification of valuation, having held no open market auctions for assets to ensure valuation accuracy, having held no open market auction for equity to ensure such a stark "worthlessness" hypothesis, having never engaged possible insurance policies to cover liabilities (with no explanation as to why in equity committee hearings), while you conduct this Company in violation of numerous Irish statutes to appear no different than Ponzi scheme operators (soon detailed and matched with Irish statutes equating to more prison time), with insiders also writing fat checks to themselves as "bonuses" just a month before you pull out the rug from under all of those whom you have a fiduciary duty to (if you are not aware, that means putting their interests first), as you tell them you will - with execution of your "plans" - point to an empty-bag (an entirely self-interested move), you know for a fact you would have all been fired, on the spot, by your shareholders, as part of that statutorily required Companies Act of 2014, § 1111, EGM (which now subjects you to a category 3 offense), just as you were entirely ousted by shareholders on August 13, 2021. This Company is not your personal slush fund (your proclaimed fiduciary duty to shareholders and creditors during equity committee hearings could not be more of a joke), and it is deplorable that you had the audacity to write checks to yourself before you thrusted this Company onto a course of undisclosed plans (entirely different than your April 2020-announced "Project Balboa" surgical bankruptcy plans) without consulting your shareholders once (as admitted in equity committee hearings), in admitted breach of the Companies Act of 2014, § 1111, which - again - subjects all complicit directors to a category 3 offense carrying up to 6 months in prison and fines. Your endless misconduct and fraud by omission and deception is appalling.
I will add, it is further fraud ("reckless trading", under Irish law) that this Board did not simply come clean to all stakeholders (shareholders and creditors) that there was supposedly (by your admission of such known "hopeless insolvency") insolvent conditions, by holding an EGM under the statutorily-mandated provision of the Companies Act of 2014, § 1111, given that this Company allowed for the continued consumption of services/goods from vendors that they knew would soon be offered pennies on the dollar for their invoices submitted for services/goods consumed by the Company during such supposedly known "hopeless insolvency", on the fraudulent representation by this Board and management that the Company would be able to make good on payment for those goods/services consumed during such supposedly known insolvency. Further fraud that, while not criminal under U.S. law (why? I do not know…), it is a criminal offense under Irish law to engage in fraudulent, "reckless trading", by failing to immediately commence proceedings upon such supposedly believed insolvency and continuing to represent, to investors, vendors, and creditors, otherwise. As in other cases, that is grounds for disqualification from future directorships under Irish law and personal liability for those fraudulent representations to those you damaged over the course of such "reckless trading". And forget the excuse that it was not an improper delay because you needed time to prepare chapter 11 filings - you took months upon months negotiating behind your shareholders' backs through your violation of the Companies Act of 2014, § 1111 (already illegal and subjecting you to prison time), when you could have simply represented the truth of supposed insolvency, not further defrauding vendors and creditors in the process of your investigations without announcing such supposedly known insolvency, then negotiated after entering insolvency proceedings, without defrauding vendors and creditors further through reckless trading in the process. But, that would have required you upholding your statutorily-mandated obligation to an EGM of shareholders upon such supposed knowledge of insolvency, and maybe you would have not had such an upper-hand to negotiate value for yourselves while you point multiple stakeholders (far beyond shareholders) who you defrauded in numerous ways, to their empty bags. Had you complied with your statutory obligation under the Companies Act of 2014, § 1111, by making your first step the calling of an EGM to discuss the next steps with shareholders, none of this would have happened. But, you did not… Surprise, surprise.
Let us also discuss this Company's false statements before the bankruptcy court, made immediately after BHG outlaid the actually true information. This Board stood by, without saying a word, after Hugh Murtagh, a lawyer at the Company's retained counsel, Latham & Watkins, falsely stated during the hearing on the restraining order requested by the Company to end the democracy of this Company by stripping the rights of shareholders, in violation of the Companies Act of 2014, § 212, that the Company was not listed on any regulated exchange of any member state of the European Union. That is, even after BHG, just moments before, specifically stated and outlined before the court that the Company was traded on the Frankfurt Stock Exchange under ticker "MCD", and even went so far as to state when Germany became a member of the European Union (quite overkill). In case this Board is unaware where it is traded, as much as it claims it does not know the rights of its shareholders (even having one of the top 10 law firms in Ireland retained to be at your fingertips for consultation), I will include a copy of the Mallinckrodt Plc. stock profile from Yahoo Finance, with regards to its listing on Germany's Frankfurt Stock Exchange under ticker "MCD"8. Whether you believed you were on or off the record, you made a false statement before a federal judge (I do not believe that Mr. Murtagh did not fact check BHG's claim of being traded under ticker "MCD" under the Frankfurt Stock Exchange, if he questioned the validity of BHG's statement, nor should he have spoken if he did not know), plain and simple, to obtain what was an already-illegal request (the restraining order), which - in the end - was obtained on other fraudulent omissions while you were at it (such as the fraudulent omission that it was illegal under the Companies Act of 2014, § 212, or that you would soon be required to allow shareholders to exercise those enjoined rights under your statutory requirement to hold the August 13, 2021, annual general meeting). You, the Board, in numerous ways, stood in silence (and still stand in silence), as your lawyers made false statements before the bankruptcy court, and have never corrected them since, as your shareholders have continued laying numerous violations in your laps month after month. This shareholder base, and all other stakeholders (BHG is seeking to protect the interests of all stakeholders you have victimized through creditor preference violations, endless bouts of fraud, and otherwise), deserve the truth, and you commit fraud by omission and false statements at nearly every junction where it furthers your agenda. I find it absolutely outrageous that you include a provision that BHG should be barred from making false statements (when you could not even name an example in your lawsuit), when the course of this case has been based on the lies, fraudulent omissions, and fraudulent statements of this Company (and, by no correction, the Board), both in the bankruptcy court and outside the bankruptcy court (even in financial statements and securities filings), let alone then instruct shareholders, after obtaining your illegal injunctive order, to go ahead and violate it (again, why did you request it then?). No one can take anything you say seriously, nor believe a word of it. I will further add that Latham & Watkins is complicit in fraud upon the court, in the way that they confessed that they are willfully turning a blind eye to all of the illegal violations of shareholder rights, essentially confessing to their own refusal to investigate ("we have made no investigation into, and make no comment or admission in respect of"), as stated in the letter from Latham & Watkins (the private August 2, 2021, letter to BHG). Latham & Watkins, "an officer of the court", "directed to the 'judicial machinery' itself", "as intentionally false, willfully blind to the truth, or [and] in reckless disregard for the truth", "a positive averment or concealment when one is under a duty to disclose", "that deceives the court", in order to obtain a desired result on a foundation of fraud, and to allow this Company to continue to remain in possession of an order that was illegally obtained under fraudulent statements and omissions of this Company and Board's statutory obligations under the Companies Act of 2014 and Articles of Association. This Company still turns a blind eye (willfully disregarding their violations) to that information, so that they may deceive the court further than they already endlessly have.
8 Yahoo Finance profile for Company's stock listed on Germany's Frankfurt Stock Exchange: https://finance.yahoo.com/quote/MCD.F/
This Company also, by its admission, committed accounting fraud via violation of the requirements for contingent liability recognition set forth under FASB ASC topic 450-20-25-29:
450-20-25-2 An estimated loss from a loss contingency shall be accrued by a charge to income if both of the following conditions are met:
a. Information available before the financial statements are issued or are available to be issued (as discussed in Section 855-10-25) indicates that it is probable that an asset had been impaired or a liability had been incurred at the date of the financial statements. Date of the financial statements means the end of the most recent accounting period for which financial statements are being presented. It is implicit in this condition that it must be probable that one or more future events will occur confirming the fact of the loss.
b. The amount of loss can be reasonably estimated.
In analysis of that cited FASB ASC topic:
For part (a): This Company, management and Board, actually thinks any stakeholder at this table, the Public Company Accounting Oversight Board (PCAOB), the U.S. Securities and Exchange Commission, or the bankruptcy court would believe that, at the time of filing your August 4, 2020, 10-Q filing10 with the U.S. Securities and Exchange Commission, you were not of the position already that shareholder's equity did not exist, when you were already preparing legal documents that would proclaim such a position that no equity exists through "hopeless insolvency"? You then very surely "probably" believed that a liability had been incurred (if your story is true), at (the very) least to the tune of $969.5 million11, if you were so sure that no equity existed to the point that you were crafting legal filings to proclaim so starkly through supposed "hopeless insolvency". It was more than "probable that one or more future events [would] occur confirming the fact of the loss", such as maybe a chapter 11 petition that would disclose such concealed liabilities and zero equity that you then-fraudulently concealed from the balance sheet at the time you were preparing those legal filings telling an entirely different story than you were to the investing public pre-petition? The "event" that was more than "probable" was your late disclosure of fraudulently concealed, more than "probable" (under such a confident claim of "hopeless insolvency") liabilities that you already supposedly more than knew about, and were already basing chapter 11 negotiations and disclosures on behind closed doors. That, the certification of two different stories to two different people, at the same time, is fraud. And if you want to make the claim that your balance sheet differed from reality, when you (supposedly) so surely knew the liabilities of this Company were at least $969.5 million more than you stated (fraudulently concealing them from your securities filings as you told the other story in impending chapter 11 filings), then you are not helping your story.
9 See page 8: https://asc.fasb.org/imageRoot/73/6954873.pdf
10 https://www.sec.gov/ix?doc=/Archives/edgar/data/0001567892/000156789220000052/mnk-20200626.htm
11 See "Total Shareholders' Equity", page 4: https://www.sec.gov/ix?doc=/Archives/edgar/data/0001567892/000156789220000052/mnk-20200626.
For part (b): If you, at the time of preparing to proclaim (through chapter 11 filings) such surety of "hopeless insolvency" and no equity possibly existing at all (which, again, you have no factual proof of and only speculated through spit-balled numbers as a result of arbitrarily whacking percentages off of asset values and speculatively extrapolating liabilities into the "trillions", when you claimed you had no liability in the matters all before then), it is beyond "reasonable estimation" that you fraudulently concealed liabilities of at least $969.5 million (again, the number you then fraudulently certified as existing shareholder's equity in the August 4, 2021, 10-Q filing). You had an absolute obligation to certify only zero equity value if you were of such absolute belief to be negotiating and preparing legal filings on such a foundational, supposedly absolute belief of "hopeless insolvency". Plain and simple, you were declaring two (radically) different numbers at the exact same time to two different parties; one number you were publicly declaring, and the supposedly true number, you concealed, to be later confessed as the real story you want people to now believe. That is fraud, just the same as certifying a different number to the tax authorities (to reduce your taxes) and another number to your lenders (to obtain larger loans). The "event" was far beyond "probable", given it was entirely "contingent" on an event (your impending chapter 11 filing) that this Board not only knew was coming, but was entirely in control of, yet you still fraudulently represented $969.5 million in shareholder's equity that you were so supposedly sure did not exist in closed-door filings, by absolutely defying the accounting requirements for contingent liability recognition set forth under FASB ASC topic 450-20-25-2.
This Board and management then absolutely, fraudulently, concealed at least $969.5 million in liabilities (again, if you want to continue your claim of such sure "hopeless insolvency" is true), having met both requirements for contingent liability recognition under FASB ASC topic 450-20-25-2, unequivocally. If this Board and management is not aware, fraudulent concealment of liabilities greater than €20.00 (far less than $969.5 million) is a category 2 offense (carrying up to 5 years in prison and a fine of up to €50,000) under the Companies Act of 2014, § 717(a)12. And if this Company wants to backpedal on those supposed liabilities, "fictitious loss" claims are also a category 2 offense under the Companies Act of 2014, § 719(3)13. And if you claim that your financial statements are not fictitious, then you just admitted to more bankruptcy fraud by false statements that no equity supposedly exists.
Further, to show how even the slightest analysis of accounting proves your story of "liabilities" is entirely fraudulent one way or another, no matter which story you now choose to pursue (out of the multiple stories you have been telling): If you were to claim that no equity exists, you would (again, under that cited FASB ASC topic regarding contingent liability recognition) have been required to charge a liability (good luck picking where to book the liability with no supporting, factual justification, that would give any such entry legal merit, and where it would not constitute artificial manipulation) to drive equity to at least (at the very least) zero on the balance sheet (in knowledge of your position of such supposed certainty that no equity exists at all), then - just after emerging from these reorganization plans (as set forth in the present RSA) - you would have to immediately book entries to reverse those charges that you booked to drive equity to zero, to reinstate equity values to reflect the actual liabilities/settlements incurred as part of the already-supported RSA terms. What justification do you have for driving equity to zero value (that is your claim, right?), to immediately reinstate equity back to pre-petition levels, merely because your unsubstantiated booked entries to artificially demonstrated liabilities did not reflect the already-supported settlements on the table (it is impossible for you to claim that your extrapolation of liabilities into the "trillions" is more "probable" under FASB regulation than the already-supported settlements on the table under the RSA)? Again, good luck explaining how speculated liabilities are more probable and justifiable to book than the already-supported settlement terms (the contingent liabilities on the table), when you are then admitting that equity exists by your present balance sheet. You are then not allowed to capriciously throw in the towel to wipe out equity that you then admit exists, handing that rightful remaining value to creditors (and the post-reorganization insider MIP plan, very self-interestedly), just because you have lost your interest and have no incentive (in fact, the opposite) to negotiate this Company's liabilities as a vested equity holder would. Throwing in the towel negotiating is not "hopeless insolvency". You claimed in equity committee hearings that, if you allowed equity holders to retain that equity on the balance sheet, that claimants would demand more value. Of course, they will demand more value, if they know you are willing to capriciously hand all remaining value to them just to appease their effective shakedown of value that belongs to the stakeholders whom you have actually have a fiduciary duty to. You do not have a fiduciary duty to mere claimants - only to those who, at the least, have a legal judgement. With mere claimants, it is your absolute duty to negotiate with them, in the best interest of those whom you actually have a fiduciary duty to. You have lost your interest in negotiating, and capriciously wiping out equity interests because you wish to throw in (or, maybe, out) the negotiating towel does not prove insolvency under Irish examinership standards. After all though, you were not much of a vested stakeholder even pre-petition, with quarters upon quarters pre-petition of incompliance with the compensation plan rules surrounding minimum equity ownership requirements that were drafted and set forth for approval by yourselves (you cannot even follow the rules you institute yourselves, let alone Irish law). Though, if you still want to continue with your claim of "trillions" in liabilities (therefore, admitting to the accounting fraud just ever-so-detailed), how can we believe your balance sheet at all at this point, if you could not come to such basic accounting conclusions yourself, that only require basic ethics of disclosure, and far from analysis of the very FASB ASC standards that legally require such disclosure? If you manipulated your balance sheet to drive equity to zero (pre-petition or now) with no justification (as you would be required to by virtue of that cited FASB ASC topic on contingent liability recognition), in knowledge that liabilities would be settled for less than your groundless speculation merely to drive the stated shareholder's equity to zero (merely to artificially demonstrate that no equity exists, to fraudulently justify wiping out your shareholders), your balance sheet pre-petition and post-petition would then look like a "U" because you artificially manipulated your stated liabilities, without substantiation, to fraudulently substantiate wiping out shareholders in accounting fraud/manipulation when your contingent liabilities agreed to as part of an RSA never entirely wiped-out equity value to begin with. Good luck explaining to the tax authorities, Securities and Exchange Commission, and PCAOB, why you would have then fraudulently taken unsubstantiated charges to your income (again, you have no justification for your speculation of "trillions" in liabilities being more probable than the already agreed-to terms of your liability settlements) under accrual accounting when they were not substantiated by the settlements you have already stated your creditors support… None of what you are doing conforms to the accounting standards set forth by FASB and under GAAP rules, completely constituting fraud no matter which way you look at your multiple stories. If this is the "standard" of accounting at this Company, it is very "probable" that the Irish Tax Commissioner, U.S. Internal Revenue Service, and PCAOB, will be taking a long look at this Company's accounting records with such supposed inconsistency with accounting standards you are bound to abide by under FASB ASC and GAAP rules, if your confessions of "hopeless insolvency", alongside such then-apparent accounting blunders, therefore, are true.
12 http://www.irishstatutebook.ie/eli/2014/act/38/section/717/enacted/en/html
13 http://www.irishstatutebook.ie/eli/2014/act/38/section/719/enacted/en/html
I will also state that BHG sympathizes (and shares anger) with the parties that have supposedly discovered this management and Board "siphoning" (their words, exactly) assets off of specific entities in alleged fraudulent conveyances. Those alleged fraudulent conveyances are an exact example why shareholders have sought replacement fiduciaries (and, in fact, dismissed this entire Board in a landslide vote at the August 13, 2021, annual general meeting, despite this Board's restraining order to commit electoral fraud via coercion and tamper voting results - clearly it did not work too well). With proof by those parties of fraudulent conveyances of assets, that would also result in another category 2 offense for this Company's fiduciaries, pursuant to the Companies Act of 2014, § 72114. Another up to 5 years in prison and up to €50,000 in fines.
As another violation of Irish law, the Companies Act of 2014, § 717(b)15, states that "fraudulently remov[ing] any part of the property of the company to the value of €20.00 or more" "within 12 months preceding winding up or any time thereafter" results in a category 2 offense (another up to 5 years in prison and up to €50,000 in fines). This Board's self-awarded "bonuses" disclosed on September 1, 202016, (less than 2 months before pulling the rug from under stakeholders with such fraudulently concealed "hopeless insolvency" - far nearer to the proclaimed insolvency than the full 12-month lookback period) were fraudulently taken without approval as part of the statutorily required EGM to be held under the Companies Act of 2014, § 1111, before any decisions were to be made as part of supposedly impending insolvency (far past the point of breaching below the threshold of half of the Company's paid-up share capital), in direct violation of this Board and management's fiduciary duties to both shareholders and creditors that they are now pointing to an empty bag. Stakeholders (creditors and shareholders) may have an even better claim (we will allow the High Court of Ireland and Irish O.D.C.E. to decide which statute the act more so violates) under the Companies Act of 2014, § 72217, since this Board and management were carrying on business, with known insolvency (you were, indeed, preparing documents to profess something entirely different than you were certifying in financial statements, having failed to alert stakeholders of your knowledge of insolvency through financial statements and a statutorily-mandated EGM under the Companies Act of 2014, § 1111), fraudulently omitting those supposedly known liabilities from the financial statements of the Company, then skimmed hard assets for insiders off of the financial accounts of the Company, in direct violation of your fiduciary duties to shareholders and creditors, before announcing no money was left for numerous stakeholders. You wonder why I equated your acts to a Ponzi scheme before… Both a breach of duty, fraudulently removing assets from the Company through fraudulent omission and concealment of known, supposedly absolute insolvency, with - again - no statutorily-mandated EGM having been held under the Companies Act of 2014, § 1111. Under that Companies Act of 2014, § 722, statute, that is a category 1 offense, carrying up to 10 years in prison and €500,000 in fines. You both defrauded your stakeholders with concealed supposedly true losses, then skimmed assets off the financial accounts of the Company to further breach and defraud your stakeholders, plain and simple, trading on undisclosed information in an act of insider trading thereafter, too, as if it could not get any worse.
14 http://www.irishstatutebook.ie/eli/2014/act/38/section/721/enacted/en/html
15 http://www.irishstatutebook.ie/eli/2014/act/38/section/717/enacted/en/html
16 https://www.sec.gov/ix?doc=/Archives/edgar/data/0001567892/000156789220000054/mnk-20200901.htm
17 http://www.irishstatutebook.ie/eli/2014/act/38/section/722/enacted/en/html
Speaking of that mentioned insider trading by this Board and management, this would be a good juncture to talk about that. I will add, you already admitted the act (although, you did a terrible job of trying to bury the admission in securities filings). You fraudulently omitted, at the time of the equity committee hearings (when you were attempting to dissuade the appointment of an equity committee, on your foundational claim that interests of the Company's directors and officers were still aligned with that of shareholders), the decision at this Board's secret November 3, 2020, meeting, where you entirely waived the ongoing equity ownership requirements that the Board and all executives were already not in compliance with, and for quarter upon quarter pre-petition. As admitted in Form 4 filings18 with the U.S. Securities and Exchange Commission, trades taking place from November 6, 2020, to November 16, 2020, this Board and management, without filing an 8-K for such a material event before trading on that decision to entirely abandon alignment with shareholder interests and allow for free, sudden divesture of insider equity interests, without limitation, then dumped hundreds of thousands of shares onto counterparties/investors that were not aware of that decision only known by those insiders selling. You do not think those counterparties not in possession of that inside information would have thought twice about buying the stock if you were so dead set on extinguishing the shares that you would waive the very compensation plan rules that maintain your material alignment with shareholder interests and keep this Board incentivized to maximize value through the entirety of the capital structure, all the way up through existing equity interests? You also do not think that buyers would not have pulled their bids if you announced that very material information before you unloaded your shares? But then you would not have obtained as much in proceeds for your divestures with that proper disclosure… You then did not disclose that information in equity committing hearings, not in the initial 10-K filing on March 10, 202119, either, but instead fraudulently omitting disclosure (you were asked numerous times why those sales were allowed to take place, and never came clean) until a 10-K amendment filing on April 19, 202120, 5 months after the event occurred and you already had traded on the information without disclosure first. It is quite clear you were compelled to disclosure, after BHG's remarks in court just days after your initial 10-K filing, regarding this Board and management's sudden, broad stock sales in further violation of the already-breached ongoing equity ownership requirements, but you had already illegally traded on the information by the time you disclosed, again, 5 months later. Had you disclosed that very material information at the equity committee hearings, your case for being aligned with shareholder interests would have been perceived materially differently, yet you fraudulently withheld and omitted the information both from the bankruptcy court and from investors, as you dumped your stock onto counterparties, without warning, far before you "disclosure" (buried in a filing, months later - quite the "disclosure"…).
This Board engaged in further fraudulent actions and breach of the very documents you professed to be entirely bound to abide by (the Companies Act of 2014 and Articles of Association) on the date of the already-fraudulent August 13, 2021, annual general meeting and election, after shareholders voted out and dismissed all directors, despite the absolute electoral fraud via legal coercion of voters at the powers of the Board. The Company's Articles of Association (already admitted by the Company in their self-impeaching August 2, 2021, letter to be bound by), § 81, very clearly stipulates the protocol to be followed when there is the "failure of any directors to be re-elected":
18 Form 4 filings for insiders of Mallinckrodt Plc. may be viewed at: https://www.sec.gov/edgar/browse/?CIK=1567892&owner=exclude
19 https://www.sec.gov/Archives/edgar/data/1567892/000156789221000011/0001567892-21-000011-index.htm
20 https://www.sec.gov/Archives/edgar/data/1567892/000156789221000016/0001567892-21-000016-index.htm
"If, at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum due to the failure of any Directors to be re-elected, then in those circumstances, the two Directors which receive the highest number of votes in favour of re-election shall be re-elected and shall remain Directors until such time as additional Directors have been appointed to replace them as Directors."
In the Company's proxy statement for the August 13, 2021, annual general meeting, filed on July 2, 2021, this Board (having approved the proxy statement) also affirms understanding of the meaning of the Articles of Association, § 81, even more exactly, in your own words:
"If an election results in either only one or no directors receiving the required majority vote, either the nominee or each of the two nominees receiving the greatest number of votes in favor of his or her election shall, in accordance with our Articles of Association, hold office until his or her successor(s) is elected."
Let us - for a moment - point out, that the act of "appointing" and "nominating" directors is still prohibited in the restraining order against shareholders, which is also an absolutely covered right under the admittedly-bound Articles of Association that the just-previous proxy statement quote is from, along with the Companies Act of 2014, § 1104, and other relevant sections. You, again, beyond holding a shareholder meeting, violated your own restraining order, yet again, by attempting to fraudulently "appoint" (reappoint) directors that were just dismissed, in direct breach of your fiduciary duty to heed to the certified voting results of your constituency. Beyond that, those replacement directors must be "elected" into office by shareholders, just as you were voted out of office by shareholders through an "election", as you just affirmed in that just-cited quote from your proxy statement. Interim directors, Joann A. Reed and Carlos V. Paya, M.D., Ph.D., not only autocratically attempted to self-instate themselves as long-term directors again after being ousted (in complete defiance of their fiduciary duty and the certified voting results21), but also continued infringing on shareholder rights to "nominate" and "elect" "replacement" "successors" due to their dismissal, and also fraudulently reinstated their also-just-dismissed electoral fraud accomplices (former directors), without any election at all, when those "nominated" were required to be "elected" into office by the only holders of votes in this democracy - the shareholders (certainly, not the share-less directors that were just told by shareholders we do not trust them to remain in office through such landslide voting results). Just as you were voted out (moments before) by shareholders through the "election" on August 13, 2021, elections take place by the voting constituency of a democracy - not an oligarchic or communistic self-appointment of leaders by those who were already voted out. Your holding of an annual general meeting was your admission democracy may not cease at this Company under Irish law, and can you imagine if a just-ousted President of the United States simply reinstated him/herself upon announcement of their loss of an election for re-appointment, along with their also-dismissed Vice President? You have engaged in absolutely endless bouts of democratic fraud. The results that determined you were "elected" to be voted out and dismissed by your voting constituency (shareholders), were certified by Broadridge, who you would have just as equally defrauded through omission as to your possession of a restraining order to attempt manufacturing and manipulating the outcome of your election through electoral fraud via coercion. Your results were "certified" by Broadridge, and you still refused to concede to the results because your electoral fraud was clearly not powerful enough to stop your shareholders from exercising their rights you have been infringing on for months, when they bravely, entirely dismissed you at the "election" on August 13, 2021.
It is without question to say that this Board understood the protocol of the Articles of Association, § 81, when you confirmed in the proxy statement that - given no directors received a majority vote to retain their positions - you affirmed you were dismissed, to be "succeeded" by a nominee "elected" by shareholders. We clearly do not trust your judgment to begin with, so who are you to autocratically re-instate yourselves and your fellow also-just-dismissed electoral fraud accomplices back to the Board, in absolute defiance of the voting results that were just certified by Broadridge, where every single one of you were voted out. You were, and are still, illegally infringing on shareholder rights to nominate directors (an absolute right, as you admitted, in the Company's Articles of Association), just as you admitted in the same proxy statement. Director nominees (though, barred under the restraining order) were to replace you after being "elected" into office by the only holders of votes in this Company's democracy - your shareholders. Not to be added alongside you without an "election" taking place at all. You are not the voters in this democracy - the voters/shareholders who voted you out, are the voters as part of any "election" in this democracy. This Board also confirmed their absolute understanding that those incumbent directors who received a majority of votes against their re-appointment would "no longer be members of the Board" after they failed to receive a majority of votes in favor of their reappointment to office (yet you, again, fraudulently re-added yourselves and your other fellow ex-directors just moments after their dismissal), on page 11 of the proxy statement:
21 https://www.sec.gov/Archives/edgar/data/1567892/000119312521246144/0001193125-21-246144-index.htm
"Incumbent directors who do not receive a majority of the votes cast at the Annual General Meeting are not re-elected to the Board, and immediately following the Annual General Meeting, will no longer be members of the Board."
Joann A. Reed and Carlos V. Paya, M.D., Ph.D. were (and are) mere, interim, placeholder directors ("no longer [to] be members of the Board") until "replacements" are "elected" through a meeting and "election" process that is actually compliant with the numerous statutes of the Act (and our Articles of Association) that were violated as part of the entirely incompliant August 13, 2021, AGM, and your failure to concede to those results that ensued. You also acknowledge yourselves that shareholder nominations to appoint new directors are an indisputable right of shareholders under our corporate charter, in your proxy statement:
"As provided in its charter, the Governance and Compliance Committee will consider nominations submitted by shareholders."
Again, I will point out that the just-previous quote was securities fraud, in the form of proxy fraud. You were not accepting director nomination submissions when you were in possession of a restraining order to hold shareholders in contempt of court if they responded to your solicitation and submitted a nomination - fraud at its finest. In the proxy fraud case of U.S. Securities and Exchange Commission v. RBC Capital Markets, LLC, RBC did not even outright lie like this Board did in its July 2, 2021, proxy statement, and they still were charged with proxy fraud. Your proxy statement was an absolutely fraudulent booby-trap that you represented as a legitimate "solicitation" for exercise of shareholder rights, and fraudulently omitted the very restraining order that would preclude any shareholder from being able to respond to that solicitation. And yet, in continued violation of Irish law and, in particular, the relevant obligations of this Board under the Companies Act of 2014, § 212 (even after admitting this Company is bound by the provisions of the Companies Act of 2014 and Articles of Association), this Board continues to knowingly violate the rights of shareholders, including their ability to call a shareholder meeting (there is no difference between the extraordinary general meeting that shareholders were proposing to call and the annual general meeting that the Board called, except that the "annual general meeting" the Board called was entirely fraudulent and in direct breach of this Board's obligations as part of the statutorily mandated lawful conduct of shareholder meetings under the Companies Act of 2014, §§ 212, 1100, 1101, 1104, 1106, 1107, 1109, and 1110). This Board continues to remain in possession of the restraining order that violates the admitted absolute rights of shareholders, after already having committed numerous instances of securities, bankruptcy, accounting, and electoral fraud.
Despite your admission of rights that remain subject to the Companies Act of 2014 and the Company's Articles of Association (clearly, you did a bit of investigating, to feel compelled enough to admit which documents protected the rights of shareholders, and which you were bound to abide by), you despicably stated in your August 2, 2021, letter to BHG:
"We have made no investigation into, and make no comment or admission in respect of, the title or rights Mr. Parker, The Buxton Helmsley Group and/or parties acting in concert with them assert or may assert in respect of shares in Mallinckrodt plc or any right or interest in respect of such shares. Your clients should seek appropriate advice in respect of the exercise of their rights."
BHG has indeed retained Irish legal counsel (one of the top ten law firms in Ireland, since March, in fact), which has affirmed our position that shareholder oppression is illegal under the Companies Act of 2014, § 212, you have no right to obstruct a financial intermediary's ability to uphold its clients' instructions of exercising their rights as shareholders, pursuant to the Companies Act of 2014, § 1110, and we continue to lay those violations in your laps. You clearly have investigated shareholder rights, having acknowledged that voting remains a right of shareholders, and this Board still feigns false ignorance (in an attempt to fraudulently gaslight further) as you - in the sentence just before - admit that you already investigated the acts that you claimed you have not investigated (what a mind-twister that just was), and continue to prod forward on your illegal acts through that fatuous double-talk. And now, you have admitted to criminal activity including insider trading, through your attempt to creatively bury it in securities filings with the U.S. Securities and Exchange Commission. Again, I would very much bet that numerous of the counterparties whom you left in the dark regarding that inside information that you remained in proprietary possession of as a result of fraudulently abstaining from disclosure until 5 months after you already traded on the information, may not have engaged in the purchase of your shares that you dumped on them, if they had been disclosed that information via an 8-K, at the very minimum, before insiders dumped their shares, without warning, on those counterparties unaware that the Board abandoned the very policy in place to ensure alignment with the shareholder interests they were purchasing.
Further, I will add that this Company, through its Board and management, has not equitably modified (has not modified at all) its restructuring plan to take into account numerous facts, including the very material fact of added revenue and asset value (and, therefore, equity value) as a result of the June approval of StrataGraft®. Even if your financial analysis pre-StrataGraft® was correct (which BHG does not believe for two seconds, given that you have provided no facts to back up your mere hypotheses, and your story is worlds apart from what you were proclaiming to investors pre-petition), you undoubtedly have added extra equity value as a result of the approval of StrataGraft®, yet you are attempting to stuff it into the pockets of those bondholders and recipients of insider-allocated equity via the management incentive plan when you already admitted that equity recipients were "over-secured" during equity committee hearings (though, again, puzzlingly and hypocritically claim are also "impaired", when it furthers your agenda), as it was, even before the added value of StrataGraft®. Compared to what would take place in Chapter 7 proceedings, as a mere scenario, for example, that extra value as a result of the approval of StrataGraft® would equitably flow further up the capital structure to those entirely or partially impaired, no one would be "over-secured" at the expense of other stakeholders entirely or partially impaired (admitting you have no idea what you are even handing stakeholders in the reorganization), nor would post-reorganization insiders be able to self-interestedly pocket proportionate extra value as part of the intended 10% post-reorganization MIP, in further direct violation of their fiduciary duties to shareholders and creditors. If this Board actually followed Irish law, as held In re Systems Services Building Group, Ltd. [2020], holding open market auctions to prove out value hypotheses and to ensure that assets are not dealt at an undervalue (especially when those assets are being dealt to an entity that post-reorganization insiders will receive an interest in - a clear conflict of interest), you would never end up with any stakeholder being "over-secured" at the expense of other stakeholders. Plain and simple, this Board has an equal fiduciary duty to every stakeholder. You do not get to engage in further preferential treatment of those stakeholders which were the beneficiaries of your creditor preference violations under Irish law through your prejudicial, private exchange offers, to screw retail bondholders (creatively, now referred to as "legacy" bondholders) while you enriched your institutional bondholders through those prejudicially-solicited private exchange offers (who were swapped into notes that now conveniently are set to receive their share of 100% of the reorganized entity's equity and second-lien take-back notes) that smaller, retail noteholders did not have the same opportunity to save their investment interests through, given they did not receive such private, sweetheart deal offers, and were left holding hot potatoes until they hit the floor.
Though not in the subject line, I would also like to debunk your absolutely ridiculous claim that shareholders are looking to pocket money that is not theirs. If existing shareholders are truly out of the money, as you claim we are, but you have provided no factual proof of, only speculation through an entirely different story than you were telling before you thrusted this Company onto a path not approved as part of a statutorily required EGM under the Companies Act of 2014, § 1111, and only lied endlessly through the process (do you see why we doubt anything you say and why you were voted out?), then shareholders are fine receiving nothing. But when you attempt to stuff money into the pockets of post-reorganization insiders via the MIP plan and those beneficiaries of your creditor preference violations, that you already admitted to being "over-secured" (I must say again, as I am endlessly puzzled, that you also claim those "over-secured" are "impaired") even before the approval of StrataGraft®, you prove that you are not attempting an equitable outcome of this case. You further prove a lack of upholding your equal fiduciary duty to every stakeholder when you commit further creditor preference and prejudice violations, when you treat the Acthar Plaintiffs much less favorably than you do the opioid plaintiffs, when both are mere claims. Why should one claim be given more preferential (creditor preference violation) treatment than another? BHG recognizes your absolutely prejudicial treatment of nearly every stakeholder at this table, and you continue to knowingly violate the laws of Ireland, as we continue to cite the cases and statutes which you are running entirely counter to, and lay them in your laps continually, as you attempt to keep "sticking your head in the sand" through your refusal to "investigate", even after you prove you did investigate just before through double-talk. BHG has only ever spoken up to ensure an equitable outcome for all - not just shareholders. It is sheer lunacy (and proves your entire lack of understanding of finance and capital structuring) that you claim as though value will flow to shareholders when it should not. If the value is not there, it is simply not there. You cannot get blood out of a turnip, just the same as is not possible in the scenario of a chapter 7 liquidation. Plain and simple. But you can, without factually-justified, speculated opinions of insolvency and valuation (like this Board's), inadvertently and inequitably hand more value (your admission of "over-securing") to certain stakeholders, which is what this shareholder base believes is occurring (and you have admitted through your "over-securing"), given no factual proof of your valuation claims, only speculation, your accounting endlessly pointing to fraud every which way you look at it, and your admission that you are indeed handing extra value to certain stakeholders (again, "over-securing") at the expense of other stakeholders whom you have an equal fiduciary duty to, while you also hypocritically - again - claim out the other side of your mouth that those "over-secured" are "impaired". You cannot be "impaired" and "over-secured" at the same time - those are antonyms, and proves shareholders' exact opinion that you have no clue what value you are handing anyone, and breaching your equal fiduciary duty to every single creditor and shareholder at this table. And the reason a bankruptcy court exists to begin with, is for parties to prove out value and ensure only an equitable outcome, yet you have provided no factual proof and only speculation of your financial hypotheses, which you cannot even back up with your accounting. Shareholders and bondholders, however, have only been discriminated against, as their fiduciaries have continued to defraud them, the United States Bankruptcy Court, the U.S. Securities and Exchange Commission, and Ireland, in numerous ways. You have no incentive, and every incentive not to, realize true, factually supported value of assets (and liabilities, through good-faith negotiations not fraught with creditor preference violations) through exploring every avenue that you neglected to prior to thrusting this Company into chapter 11 plans that you never once disclosed before doing so (entirely different from "Project Balboa") and without consulting with your shareholder base to determine "measures [that] should be taken to deal with the situation", in complete violation of the Companies Act of 2014, § 1111. Even when you add hundreds of millions in revenue and, therefore, most definitely, equity value, through the approval of StrataGraft®, for instance, you stuff that extra value into the pocket of post-reorganization insiders and those already admitted to be over-secured, while you still proceed with the intent that those "out-of-the-money" before the approval of that drug should not receive any consideration for that extra value added to this Company's balance sheet. Even if your financial analysis, pre-petition, that this reorganization plan was based on, was true (which BHG, again, disputes endlessly, as you have provided no factual proof, provided no unconflicted third-party valuation to confirm your value hypotheses, held no open-market auctions of assets or equity to prove your value hypotheses in good faith, just as any vested shareholder would have, telling an entirely different story all before you came up with a new story that ever-so-ironically would include post-reorganization insiders being gifted with a 10% MIP plan, when they owned virtually no equity pre-petition), there is extra value as a result of that drug's approval, and you have not equitably adjusted recoveries for that extra value. BHG is not in a position to declare where that extra value should go, but perhaps it should go to the bondholders that provided funded debt, have absolutely cemented claims against this Company (whom you actually have a fiduciary duty to), before you hand it to those who have mere unliquidated claims against the Company, and continue pointing your funded debtholders with a concrete claim against the capital structure to an empty bag. I am not saying that those with unadjudicated claims do not deserve value, as that is something that should be determined, but you are proving your absolute inability to follow the protocol of even something as simple as our Articles of Association, with relation to the voting results on August 13, 2021, let alone your absolute inability to conduct a reorganization that does not commit numerous creditor preference violations (even before the reorganization starts), which no party would agree to or approve of except those whom you admitted are "over-secured" through your preferential, prejudicial, inequitable treatment (yet, when its convenient to claim no money is left for other stakeholders, you then hypocritically label those "over-secured" as "impaired"). But, as you continue claiming no money for those stakeholders, is it not just too comical how you still claim there is enough value to allocate 10% of the reorganized equity to the self-negotiated MIP plan? Perhaps, if you were not in default on your obligation under the Companies Act of 2014, § 1111, shareholders with a vested interest may have elected new fiduciaries who would actually uphold their fiduciary duty before awarding value to themselves (drop the argument of insiders not possibly remaining post-reorganization, as everyone at this table knows that the proposed MIP exists as much as it does because all present insiders are praying to hop on that gravy train). One can also very easily conclude that your inequitable payouts and creditor preference violations are likely informal bribes to stuff under the rug illegal acts far beyond your insider trading. Maybe, such as the RICO violations related to charity co-pay routing that was just brought to light on the docket a couple weeks ago? [Dkt. No. 3729] There is a reason you are acting so disreputably and inequitably, with no factual justification for any of your actions, as you continue to feign ignorance as to the numerous violations of law and duty that you are continuing to commit, as your shareholders are literally laying the statutes in your lap, month after month, while you continue defrauding the bankruptcy court and stakeholders in this Company in the process.
I am going to begin to close that, no matter the restructuring plan you put through, it is already held in the Irish High Court case of In re Colonia Insurance (Ireland) Ltd. [2005], scheme of arrangements involving the following elements are immediately precluded from being sanctioned/approved as part of examinership proceedings. Therefore, any plan you put forth is dead on arrival, given the following immediate disqualifiers (and, if you continue to spend this Company's money on a plan you know is dead on arrival already, in willful continued breach of the Companies Act of 2014, § 1111, beyond subjecting yourself to possibly years in prison via the numerous category offenses detailed herein and associated fines under Irish law, this Board is opening themselves up to further personal liability for that absolute destruction of stakeholder value on a foundation of disqualifying criteria that you are in full knowledge of will preclude your scheme from being sanctioned/approved by the High Court of Ireland):
1. Statutory requirements must have been complied with. Let's first start, that you are months upon months (likely, over a year) into your known violation of the Companies Act of 2014, § 1111, which - again - carries up to 6 months in prison and fines for all complicit Board members. You were statutorily required to hold an EGM before you made any decisions to how to deal with this Company's liabilities before you thrust it into any possible insolvency proceedings - plain and simple. Precluded sanctioning already. Also, with your unlawful annual general meeting and election on August 13, 2021, which is one of the main reasons you have gotten this far (more primarily, on your absolute breach of the Companies Act of 2014, § 1111), one of the only reasons you will get to the finish line, if the United States Bankruptcy Court allows confirmation of your plan while starkly illegal behavior is taking place as a result of your fraudulent omissions, statements, and activity, both in securities filings, in your accounting records (supposedly, if this new story of yours is true), and as part of the bankruptcy court proceedings, you violated approximately eight statutes right there alone with the unlawful annual general meeting itself (again, just to name a few violations, the Companies Act of 2014, §§ 212, 1100, 1101, 1104, 1106, 1107, 1109, and 1110). Even if the bankruptcy court was unaware of the violations, it is still a violation, and only because you fraudulently omitted that your restraining order against shareholders, and entering this Company into any insolvency proceedings without consultation of shareholders (via that statutorily required extraordinary general meeting) to allow the owners of this Company (directors and a management owning a fraction of the shares they are required to as part of this Company's active compensation plan) to decide how they would deal with their headwinds to ensure equitable treatment of all stakeholders (and that those directors who would guide the Company through such proceedings were trusted to maximize value all the way up through those last in line to receive a payout), was illegal to begin with. Let alone, beyond those issues, you also did not uphold the standards set in numerous Irish High Court cases, including In re Systems Services Building Group, Ltd. [2020], In re Winning Ways Ltd. [2020] (where, for your acts, those directors were disqualified from directorship), and other cases. You have only gotten this far, and will only get to the Irish High Court, on a foundation of acts illegal under Irish law, willful continued breaches, and defrauding stakeholders, as you continue to attempt your absolute vacation from Irish law through your creative and dishonorable use of a foreign court. And, if you get there, let me remind you again, your knowledge of your breach of the Companies Act of 2014, § 1111, is - again - a category 3 offense, for which results in up to 6 months in prison and fines for those complicit Board members. You are on beyond absolute notice, in court filings, securities filings, electronic mail, and postal mail.
2. No issues of coercion may arise (as part of how a scheme of arrangement is put forth). You committed illegal coercion of shareholders (cut the bogus about your hollow allegations against BHG to use it as a scapegoat for enjoining this entire shareholder base's rights, when you had no private cause of action to rely on, to begin with), both through your restraining order, which is ongoing illegal coercion, that absolutely perpetrated your electoral fraud as a result of that coercion, and this case as a whole, for that matter. Again, the only reason you will continue forward from this point on, or ever reach the High Court of Ireland, is due to your illegal coercion and evasion of Irish law (starting at your breached obligations under the Companies Act of 2014, § 1111). Had you not illegally coerced those whom you had an equal fiduciary duty to from exercising their rights, which you admitted were protected under the Companies Act of 2014 and this Company's Articles of Association¸ the first document explicitly prohibiting the oppression of those rights, with no exceptions, you would have been dismissed and replaced on August 13, 2021, and shareholders would have been restored advocates that actually know how to legally and equitably go about dealing with the headwinds of this Company in a way that would absolutely ensure value maximization for all stakeholders, and with factual proof as to why they are going about resolving headwinds as they are. That is, had you not tampered the election process with your illegal, coercive restraining order to begin with.
3. The classes of creditors must be properly constituted. You could not have a more half-cocked constitution of creditor classes. First, you creatively shifted all of your creditor preference violation beneficiaries in your prejudicial, private debt swaps to a class of its own, compared to your "legacy" noteholders that you did not offer such private, sweetheart deals, and proceeded to arrange them into a class ~1/10th the size of your creditor preference violation beneficiaries (whether you want to claim that arrangement was intentional or not, you prejudiced which bondholders you offered the opportunity to preserve their investment), to make approval of your reorganization plan substantially easier and so you get to say that "the majority of creditors support our plan" (not a direct quote, but it's coming). Of course, that "majority" will support the plan when you creatively arrange them into outsized classes after they are the beneficiaries of creditor preference violations and are "over-secured" at the expense of all other non-supporting stakeholders that you have an equal fiduciary duty to. You also prejudiced the other mere claims against this Company, arranging them into categories and giving more preferential treatment to certain claims over others. That is, while you attempt to hand value to those mere claims before repaying funded debtholders with absolutely concrete claims first.
4. "The scheme of arrangement is such that an intelligent and honest man, a member of the class concerned, acting in respect of his interest might reasonably approve it." Do you think funded debtholders (those retail investors you creatively named "legacy" noteholders, after you screwed them over through your prejudicial, private exchange offers) not receiving a penny would intelligently and honestly approve this plan, as you give value to those with a mere claim before them (leaving that class to be such a retail-investor-dominant class that are unable to afford any legal representation)? Do you think any class set not to receive a penny, or any that you claim are impaired (but have not already hypocritically admitted are "over-secured"), would approve this plan when the extra asset value as part of StrataGraft®'s approval is not equitably flowing up the capital structure? Do you think you would even be to the point of being able to merely ask for approval if you had not violated all the numerous Irish statutes that BHG has been laying in your lap for months, especially your known violation of the Companies Act of 2014, § 1111? Do you think the Acthar and opioid plaintiffs would not like to receive equal treatment for their claims (that is, those who are being harmed by such prejudicial, inequitable treatment)? But that would require you abstaining from such creditor preference violations… Do you think any truly impaired (not one that you, out the other side of your mouth, also admit is "over-secured") stakeholder would agree to the present reorganization plan, when you had no justification for not engaging the surgical bankruptcy that was disclosed to shareholders in April 2020 ("Project Balboa", whereby, only the select subsidiaries with liabilities would be enter into chapter 11 protection, and parent company equity interests would remain unaffected)? Lastly, do you think any impaired class would approve any plan put forth by this (dismissed) Board and management when you have already committed proxy fraud, insider trading, violated those numerous Irish statutes BHG has been laying in your laps for months, have only gotten as far as you have due to your illegal acts and fraudulent omissions/statements (both in securities filings and in the bankruptcy court), and have not one ounce of proof for your valuation claims (and, if they are even slightly true, constitute accounting fraud)? Good luck finding one class member that would approve this plan; that is, other than those who were the beneficiaries of your illegal acts through such informal bribes to simply approve the plan at the expense of all the other stakeholders whom you have an equal fiduciary duty to.
For all directors that were fraudulently re-added to the Board, by also-dismissed, interim, placeholder (to be "replaced" through "election") directors, when they were "dismissed" to "no longer be members of the Board" (your words, from the proxy statement), I will also add that unlawfully acting as a director is a category 2 offense under Irish law (yet another up to 10 years in prison and up to €500,000). That could easily also constitute and an additional category 2 offense for Joann A. Reed and Carlos V. Paya, M.D. Ph.D. for allowing such falsification of corporate records and securities filings, pursuant to the Companies Act of 2014, §§ 877 and 878, along with any officers complicit in such falsification of corporate records as to lawful directors. One could also construe those two statutes to be additionally applicable to those in charge of signing off on financial statements, with regards to the fraudulently concealed liabilities if this Board and management wants to stick to their story.
I will point out that, through the course of BHG's correspondence with the Board as part of this chapter 11 case's endless train of violations of the law, fraud, and called-out obvious breaches of duty (in so many ways), it is almost a surety that this Company has widened its D&O policy coverage, given the now-optional nature of liability releases to be provided by shareholders to directors and management of this Company and being made aware of such serious violations of law, fraud, and breaches of fiduciary duty, that you continue to violate as you willfully "stick your head in the sand", to eventually pin such reckless behavior on your D&O insurance carrier. It would only fall in line with all of your other acts of deception that you, at the time of any possible requesting such expanded coverage of those policies, never turned over all of and fully disclosed BHG's correspondence with this Board to your insurers, which - as if this Board can afford another instance of fraud tacked onto your already expansive list - would be insurance fraud by omission. You are well aware that BHG's letters, and the information discussed therein, are a material risk to your insurers (and their reinsurers, for that matter) and would require consideration as to the premium rates required to appropriately take into account such risk. It also would be absolutely inappropriate to decide what constitutes a material risk yourself, without letting your insurance carrier decide the merit of BHG's claims and whether they believe those claims presents a material risk of loss or not. I, however, tell the actuary with that task of coming up with any possible risk premium number for the acts of this Board and management that a risk officer or senior underwriter would sign off on with confidence in making a profit on any such policy, "best of luck". It is unimaginable the risk premium that would be required to cover the almost assured loss because of this Board and management's demonstrated-to-be willful conduct.
Should this plan be confirmed in light of such numerous instances of fraud and illegal acts by this Board and management (undoubtably then being "procured by fraud"), BHG urges those parties with information on the illegal acts and fraud detailed herein, fraudulent conveyances that have been alleged during hearings by parties, etc., to retain Irish counsel and join all parties in firmly objecting to this Company's application for entry into Irish examinership, on those issues that must be investigated to assure maximum value distribution to all stakeholders. Recovery of stakeholders should not be determined by how much this Board and management is able to stuff their illegal acts under the rug, and it is quite evident by the lack of cooperation with discovery requests of this Company with numerous parties that assurance of full and truthful disclosure is nonexistent. "Good-faith negotiations" (with all parties) are a requirement to entering the examinership process, for which this Board and management has no room to claim good-faith negotiations were had with, again, lack of (and provenly false) disclosures (even in securities filings), absolutely barring any possible good-faith negotiations from being had, along with prejudicing and excluding numerous parties from negotiations from the start.
I will end that, again, if the U.S. Bankruptcy Court decides to allow you to continue to violate the Companies Act of 2014, § 1111 (BHG will not obstruct the decisions made during U.S. proceedings, if this Company's chapter 11 plans are confirmed in knowledge of the endless violations of law and instances of fraud listed herein, already constituting highly-sufficient grounds for revocation of any possible order of confirmation), this Board is on notice that applying to Irish examinership proceedings, while on firm notice of that active violation of the Companies Act of 2014, § 1111, would be your unequivocal "permit[ting] [of] that failure to continue", and willful step to further breach, when it comes to compliance with your long-defaulted on obligations under that statute. That, again, means this Board then "shall be guilty of a category 3 offense" under Irish law, on top of all other category offenses detailed herein. BHG's Irish counsel will be raising all contents of this letter to the Irish High Court and filing all correspondence with the Board as documented evidence of this Board's endless, continued, willful fraud, and misconduct. Ignorance of the law in light of such violations and fraudulent actions, especially when put on such notice by BHG and other parties, is not a legitimate defense for this (former) Board. This (former) Board would be wise to deviate from any nonsensical advice from counsel such as that plausible deniability will help them avert prison time or solve their problems; you have no plausible deniability (such a claim would also be an admission of willful incompetence and negligence in such a trusted position), you know exactly what you have done, and - again - that was never a defense to begin with.
Very Truly Yours,
/s/ Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
Mallinckrodt Plc. Listing on the Frankfurt Stock Exchange, under Ticker "MCD.F":
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Klein LLC
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klein@kleinllc.com
Re: Consent Order Granting Injunction in Adv. Pro. No. 21-50242 (JTD) (the "Consent Order")
Dear Ms. Klein:
We write on behalf of the debtors in the chapter 11 cases of Mallinckrodt plc and certain affiliates pending in the Bankruptcy Court for the District of Delaware, chapter 11 case number 20-12522 and related cases.
It has come to our attention that your clients Alexander Parker and The Buxton Helmsley Group have asserted that the Consent Order referred to above prohibits them and parties acting in concert with them from exercising such voting rights as they may have at the Annual General Meeting of Mallinckrodt plc that will take place on August 13 (the "AGM").
Without prejudice to all other rights of the Debtors under the Consent Order, please be advised that the Debtors do not believe that the Consent Order precludes Mr. Parker or The Buxton Helmsley Group from exercising voting rights at the AGM in respect of shares that they themselves own. Please so advise your clients.
For the avoidance of doubt, the exercise of voting rights remains subject to the Companies Act 2014 of Ireland and the Memorandum and Articles of Association of Mallinckrodt plc, including in respect of record dates and documentary requirements for such exercise. We have made no investigation into, and make no comment or admission in respect of, the title or rights Mr. Parker, The Buxton Helmsley Group and/or parties acting in concert with them assert or may assert in respect of shares in Mallinckrodt plc or any right or interest in respect of such shares. Your clients should seek appropriate advice in respect of the exercise of their rights.
August 2, 2021
Page 2
Mr. Parker has made a number of other unfounded or mistaken assertions about the Debtors and their compliance with applicable law. For the avoidance of doubt, please be advised that the Debtors disagree with those assertions.
Very truly yours,
George A. Davis
Of Latham & Watkins LLP
New York Headquarters | Mr. Alexander E. Parker | ||
1185 Avenue of the Americas, Floor 3 |
Senior Managing Director |
||
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com | ||
T. +1 (212) 951-1530 | |||
F. +1 (212) 641-4349 |
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
board.directors@mnk.com; info@odce.ie; marian_lynch@odce.ie; xana_mccarthy@odce.ie; suzanne_gunne@odce.ie; ian_drennan@odce.ie;
August 17, 2021
Former Directors - All Members | Ms. Joann Reed, Interim Director |
Mallinckrodt Plc. | Mr. Carlos V. Paya, M.D., Ph. D., Interim Director |
53 Frontage Road, Shelbourne Building | Mr. Angus Russell, Former Chairman |
Hampton, N.J. 08827 | Mr. J. Martin Carroll, Former Director |
Mr. Paul R. Carter, Former Director | |
Mr. David Norton, Former Director | |
Ms. Anne C. Whitaker, Former Director | |
Mr. Mark Trudeau, Former Director | |
Mr. Kneeland Youngblood, Former Director | |
Mr. David Carlucci, Former Director | |
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
16 Parnell Square | Ms. Xana McCarthy, Investigator |
Dublin 1 | Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland | Mr. Ian Drennan, Director of Corporate Enforcement |
Re: | Unlawful August 13, 2021, Annual General Meeting, Notice of Now-Active Breach of the Companies Act of 2014, § 175, Refusal of Board to Concede to Election Results Dismissing All Directors, and Fraudulent Re-Addition of Just-Dismissed Directors by Also-Dismissed, Interim, Placeholder Directors (Breach of Protocol Prescribed in Articles of Association, § 81, and proxy statement, by Joann A. Reed and Carlos V. Paya, M.D.) |
Ladies and Gentlemen of the (Former) Board (the "Board"):
The Buxton Helmsley Group, Inc. ("BHG") addresses this letter to all just-dismissed directors of Mallinckrodt Plc. (the "Company"), who very clearly have a real inability to concede to, accept, and follow the voting results that ensued at the August 13, 2021, Annual General Meeting ("AGM"). That is, even despite your absolute electoral fraud to attempt manipulating those results in a way that would prevent new board members from being instituted and present board members from being dismissed.
When every single one of you received a majority of votes that removed you from office at the August 13, 2021, AGM, that was shareholders telling you "Every one of you are fired", on the spot, plain and simple. That is a binding vote, and not something that you have any power to override, even if you abhor reality as much as your shareholders and Irish law. On August 2, 2021, your legal counsel cited - in a private letter to BHG - that the Mallinckrodt Plc. Articles of Association and Companies Act of 2014 are two documents that the Board is bound to abide by. The Mallinckrodt Plc. Articles of Association, § 81, stipulates the protocol to be followed when there is the "failure of any directors to be re-elected":
"If, at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum due to the failure of any Directors to be re-elected, then in those circumstances, the two Directors which receive the highest number of votes in favour of re-election shall be re-elected and shall remain Directors until such time as additional Directors have been appointed to replace them as Directors."
In the proxy statement (page 11), you (having approved the proxy statement) also affirm, more exactly, in your own words:
"If an election results in either only one or no directors receiving the required majority vote, either the nominee or each of the two nominees receiving the greatest number of votes in favor of his or her election shall, in accordance with our Articles of Association, hold office until his or her successor(s) is elected."
It is without question to say that you understand the protocol of the Articles of Association, § 81, when you confirmed in the proxy statement that - given no directors received a majority vote to retain their positions - you affirmed you were dismissed, to be succeeded by a nominee "elected" by shareholders, since we clearly do not trust your judgment to begin with. You are all voted out of office, very simply, to be replaced with an elected successor, as much as you do not want to face the facts. Joann A. Reed and Carlos V. Paya, M.D., then further breached their duties as dismissed, interim, placeholder directors, fraudulently re-adding all other fellow dismissed directors back to the board, completely evading the voting results that those ex-directors directors, just moments before, were also - again - dismissed, along with themselves (Joann A. Reed and Carlos V. Paya, M.D., as dismissed, interim, placeholder directors), to be - again - succeeded/replaced by an elected nominee. An "election" requires shareholders voting, just as you were just-now voted out. It is also again, a requirement of our Articles of Association (that pesky little document you said you were obligated to follow on August 2, 2021) that shareholders are able to nominate directors - you do not get to autocratically name nominees yourselves while shareholders remain muzzled in violation of the Act, § 212. You also affirm that those incumbent directors would no longer be a part of the board after they failed to receive a majority of votes in favor of their reappointment to office (yet you fraudulently re-added them just moments after their dismissal), on page 11 of the proxy statement:
"Incumbent directors who do not receive a majority of the votes cast at the Annual General Meeting are not re-elected to the Board, and immediately following the Annual General Meeting, will no longer be members of the Board."
That cited section of the Articles of Association, the document you already stated that you must follow (Articles of Association, § 81), very clearly states that you are to be replaced because you have been dismissed, and are "no longer members of the board" (those are your words from the proxy statement). Joann A. Reed and Carlos V. Paya, M.D. were (and are) mere, placeholder directors until replacements are "elected" through a meeting and election that actually is compliant with the numerous statutes of the Act (and our Articles of Association) that were violated as part of the incompliant August 13, 2021, AGM, and your failure to concede to the results. You also acknowledge that shareholder nominations to appoint new directors were a right of shareholders under our corporate charter, in your proxy statement:
"As provided in its charter, the Governance and Compliance Committee will consider nominations submitted by shareholders."
Yet, you falsely stated in the proxy statement for the August 13, 2021, AGM that those nominations were being accepted (lie after lie by this Board and management), very much knowing you already requested and were in possession of an active restraining order to preclude and coerce your voters/shareholders via legal threats (definitely constituting electoral fraud, even according to the broad consensus of Wikipedia, under the official electoral fraud classification of "voter intimidation"). Directly from your restraining order (precluding and coercing all shareholders via the restraining order, § 6), § 1(e) precludes "any action seeking to nominate, appoint … any directors or officers of any Debtor". Plain and simple, that legally precludes and prohibits the action of submitting a director nomination, in absolute violation of our Articles of Association (you just affirmed that obligation to allow nominations yourself in that last quote from the proxy statement) and the Companies Act of 2014 - both documents which you, in writing, professed and stated you had no option but to adhere to. Yet, you continued to (and continue to) knowingly violate those obligations as fiduciaries.
Further, you are now in ongoing breach of the Act, § 175 (the Board's requirement to hold a lawful, compliant with the Act and its relevant provisions, AGM, no further than 15 months from the last), given your holding of a violation-ridden AGM, and a coinciding voting process absolutely manipulated with electoral fraud by this Board. Voter intimidation via restraining orders against those voting, to coerce, threaten, and prevent them from exercising their rights according to the documents you already admitted you have no right to deviate from, threatening to hold shareholders in contempt of court if they exercise their rights, is - again - "electoral fraud". Then, three-quarters of the way through the voting cycle, when you clearly realized you were illegally infringing on your shareholder rights, you did not repeal the restraining order against your shareholders, but only sent a private letter to BHG's counsel on August 2, 2021, hypocritically informing BHG that voting is the right of shareholders according to the Articles of Association and the Act, yet you already legally precluded and coerced shareholders in a restraining order to inhibit the occurrence of voting to begin with. That letter also came months past the deadline for shareholders to exercise rights other than voting (specifically, submission of director nominations and shareholder proposals) as part of the Articles of Association and Companies Act of 2014, which you already admitted you have no right to infringe on. You fatally interfered (and continue to interfere) with the full rights of shareholders, after you admitted you had no right to do so. If BHG (or any shareholder) was able to nominate directors to be placed on the ballot, such as myself, there would have been more than two directors who would have been appointed upon a vote, you would not have been able to fraudulently continue to hold board seats hostage after you were all dismissed, then re-add all other disenfranchised, already dismissed, voted out, ousted, ex-Board members, after they were dismissed just moments before (to "no longer be members of the Board", according to your words in the proxy statement), in absolute breach of your fiduciary duty (Carlos Paya, M.D. and Joann Reed did not lose that fiduciary duty when serving as dismissed, interim Board members until their "successor(s)" are elected by shareholders). The outcome of the meeting was manufactured by this Board, there was electoral fraud at hand at the powers of the Board (in violation of the Act, § 212), and the meeting held was incompliant with the Act (in particular, its relevant obligations under §§ 212, 1100, 1101, 1104, 1106, 1107, 1109, and 1110). This Company cannot hold a meeting incompliant with the Articles of Association and Companies Act of 2014 statutory obligations surrounding the conduct required as part of AGMs, then claim they satisfied their obligation to hold an AGM under their obligation as part of the Act, § 175. Incompliant AGMs do not count. And even with your incompliant meeting, you still clearly did not succeed in manipulating your election results, as you still were voted out. And now, you refuse to accept the voting results, refuse to concede to your dismissal, refuse to allow for the nomination and election of "successor(s)"/"replacements" (that your shareholders nominate - clearly, your shareholders are not interested in another election on those accomplices to your election fraud, or anyone that is associated with any of you), you fraudulently re-add those also-dismissed, and are - as of August 13, 2021 - acting as unlawful, illegal, already-dismissed directors, plain and simple. It is also, without question, further fraud, if interim directors continue paying also-dismissed, ex-directors as a result of fraudulent re-addition to the Board by the interim Board members who were obligated to allow for "successor(s)" to be elected by their shareholders (that requires not infringing on the Articles of Association, to actually allow for nomination of new directors to be elected). If you were not already illegally oppressing the right to an extraordinary general meeting (also an absolute right of shareholders under the Act, § 178, even if omitted from a company's constitution, as explicitly stated under that statute), shareholders would call an EGM to nominate and appoint directors that we wish to be at the helm of this Company, given we have already dismissed you all and clearly wish for other directors to be at the helm of this Company. But, guess what? We cannot, as you continue infringing on that right of the Act that you - again, as I do not know how many times I must say it - already admitted you have no right to deviate from, and professed you must remain compliant with. It is despicable and disgraceful that you think it is acceptable to hold an tampered and legally incompliant AGM and "election" to just-as-fraudulently reappoint yourselves to the board (with disregard to the voting results, since you were not able to successfully manipulate those voting results as much as you attempted to through your electoral fraud), but you bar your shareholders from holding an actually legitimate general meeting, only because it would put a risk to your positions, with you not being able to manufacture the outcome of the meeting and fraudulently protect your positions through tampering and restriction of the meeting agenda items, the voting process, etc., through direct encroaching on the shareholders rights that you already professed you had no right to impede on (being they are part of the Articles of Association and Companies Act of 2014). Directors who did not receive a majority vote to reappoint them are dismissed by shareholders, and - as you said yourself in the proxy statement - "will no longer be members of the board". That includes the interim, placeholder directors as well, who were/are to be "replaced". As part of your oligarchic regime (more, dictatorial now), you are saying you will all now remain a part of the Board, even after every single one of you was dismissed and you already vowed that, given you did not receive a majority vote to reappoint you to office and renew your directorship terms, all of you "will no longer be members of the board".
Very simply, this shareholder base is ensnared in one of the greatest corporate scandals and corruption schemes in the history of business (and, especially, in the history of Irish companies). I believed that statement when I said it before, but I unequivocally believe it now, and it is very clear that shareholders are on the same page, even despite your attempt to fraudulently skew the voting results via coercion as part of legal threats. You have now violated about every rule in the book of the exact documents that you have already admitted you must comply with, shareholders have been the victim of electoral fraud at the powers of the directors, fraudulent re-additions of directors (by also-dismissed directors), if ex-directors fraudulently re-added continue cashing paychecks as directors, also more fraud, then you held an entirely unlawful AGM and according "election", all Board members are consciously/willfully violating the Act, § 175… How far must I go on? Or, I should say, what would you also like to add to the sea of illegalities? The famous Walter Scott quote fits all too perfectly for the conduct of this Board: “Oh, what a tangled web we weave, when first we practice to deceive.”
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
Page 4 of 4
New York Headquarters | Mr. Alexander E. Parker | ||
1185 Avenue of the Americas, Floor 3 | Senior Managing Director | ||
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com | ||
T. +1 (212) 951-1530 | |||
F. +1 (212) 641-4349 |
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
richard.daly@broadridge.com; chris.perry@broadridge.com; tim.gokey@broadridge.com; shareholder@broadridge.com; board.directors@mnk.com; info@odce.ie; marian_lynch@odce.ie; xana_mccarthy@odce.ie; suzanne_gunne@odce.ie; ian_drennan@odce.ie;
August 5, 2021 | |
Board of Directors - All Members | Mr. Angus Russell, Chairman |
Mallinckrodt Plc. | Mr. Mark Trudeau, Director |
53 Frontage Road, Shelbourne Building | Mr. David Carlucci, Director |
Hampton, N.J. 08827 | Mr. J. Martin Carroll, Director |
Mr. Paul R. Carter, Director | |
Mr. David Norton, Director | |
Ms. Anne C. Whitaker, Director | |
Ms. Joann Reed, Director | |
Mr. Kneeland Youngblood, Director | |
Mr. Carlos V. Paya, M.D., Ph. D., Director | |
Broadridge, Inc. | Mr. Richard Daly, Executive Chairman |
1155 Long Island Avenue | Mr. Chris Perry, President |
Edgewood, N.Y. 11717 | Mr. Tim Gokey, Chief Executive Officer |
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
16 Parnell Square | Ms. Xana McCarthy, Investigator |
Dublin 1 | Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland | Mr. Ian Drennan, Director of Corporate Enforcement |
Re: August 2, 2021, Letter Attempting to Clarify Shareholder Oppression Order - Mallinckrodt Plc.
Ladies and Gentlemen of the Board (the "Board"):
The Buxton Helmsley Group, Inc. ("BHG") is in receipt of your August 2, 2021, letter, by way of BHG's Delaware counsel. Thank you for your belated response, nearly a month after we sent our July 7, 2021, letter, attempting to now back-pedal on your shareholder oppression order, being you clearly realized you oppressed us far too much for your election to be at all legitimate.
Page 1 of 3
You cannot go into an "election" telling your shareholders voting is prohibited (through an actual restraining order issued by a court), then attempt to reverse course three-quarters of the way through the "election" cycle because you realized you over-oppressed your constituency. Your order oppressing this shareholder base's rights, § 1(e), clearly states "any action seeking to remove … any directors or officers of any Debtor" is prohibited. That includes voting, unequivocally. You also said "any action" to "elect" "any directors or officers of the Debtor" (the order, § 1(e)). It is then very crystal clear that voting was precluded. BHG attempted to pare down your order at the time you were threatening BHG to accept the order or endure the vexatious litigation you initiated, but your legal counsel refused to pare down that order (stated it was vague and broad on purpose), which I am sure you wish they had now. The irony of how such pernicious intentions backfire so organically is nearly laughable (though, violations of the law are not a laughing matter). You do not get to (conveniently) now, days before the "election" date, try to make an exception because you realized you over-oppressed your shareholders. You have been on notice for months upon months, after BHG having already referenced numerous times in letters to the Board, the Companies Act of 2014, § 212, explicitly prohibits shareholder oppression "the powers of the directors of [a] company being exercised in a manner oppressive to … any members", under any circumstances. As also referenced in the August 2, 2021, letter sent to the Board, shareholder rights are clearly also explicitly preserved during even insolvency proceedings, as statutorily mandated by the Companies Act of 2014, § 680. Beyond that, this Board actually thinks any shareholder is going to trust the word of our fiduciaries (especially after shareholders are already labeled as "adversaries") that they will not retaliate further, when the retaliation against shareholders so far was already prohibited by, and in violation of, the Mallinckrodt Guide to Business Conduct? Shareholders long ago lost trust in our fiduciaries, and are now fearful of them due to your absolute coercion and illegal oppression. You clearly do not even follow your rules that are set in stone and that you took an actual oath to, so why would we trust you that you will "follow your word" in follow-on correspondence? You have left your shareholder base entirely frightened and confused, fatally ending this democracy long ago, after your oppression of every right of this shareholder base. If you think your private letter to BHG resolves the fear and confusion of this entire shareholder base (confusion as to how all of our rights could be stripped of us, given our protection under Irish law, but not confused at all about knowing that all of our statutory rights have been stripped), that is preposterous. There is no recourse at this point, even if you attempted to restore shareholder rights, as you cannot enter an "election" cycle with having already precluded shareholder proposals and director nominations (both, absolute rights of this shareholder base under the Act, § 1104). It is impossible to be compliant with the Act, § 175, when you already are ongoingly violating and obstructing the Act, § 212. Your "have your cake and eat it, too" attitude with your attempt of forcing a carve-out once you realize the order is too illegal for your comfort, in attempt to restore the legitimacy of your election, is more than a little late. The order was illegal to begin with under the Companies Act of 2014, § 212, yet you have you continued to perpetuate it, interfering with your own election and rendering it entirely invalid. And, again, if the order "only applied" to those shareholders "acting in concert" (giving this Board the ability to cherry-pick shareholders whom are classified as "acting in concert", whether "directly" or "indirectly", yet coercing/including the entire shareholder base as being possibly included in that group of shareholders being targeted with retaliation only because they are dissident from this Board), that is further illegal under the Companies Act of 2014, § 1100, absolutely prohibiting prejudicial treatment of shareholders. You told the court that the order was so vague on purpose, to be a "catch-all" order. You even so self-destructively went so far as to make it even more vague by adding the condition of actions being "direct" or "indirectly" in violation, so that you had every opportunity to retaliate against shareholders for practically any possible "action", when you already explicitly precluded voting, director nomination submissions, any shareholder proposals, and virtually everything else under the sun. Plausible deniability when you stated your intentions already, and they now do not suit you, is not an option. As the famous quote from Laurel and Hardy goes, "well, here's another fine mess you have gotten us into". That is what the Board members in support of this absolute sham should be saying to each other. BHG finds it hard to believe that absolutely all of you condone such illegal and corrupt behavior, and that none of you have made it clear you do not stand by such corruptness by attempting to save face with this shareholder base.
In that August 2, 2021, letter to BHG, your legal counsel also singlehandedly impeached this Board with their statement that "for the avoidance of doubt, the exercise of voting rights remains subject to the Companies Act 2014 of Ireland and the Memorandum and Articles of Association of Mallinckrodt plc". You just confessed your injunctive order, given the Companies Act of 2014 (the "Act"), § 212, illegally oppressed this shareholder base through its textual prohibition of "any actions" to "elect" or "remove" directors (your oppressive order is so very crystal clear). Do you not realize that Act and our articles of association (which you just admitted you have no right to deviate from) also protect the absolute rights of shareholders to submit shareholder proposals (the Act, § 1104) and submit director nominations (a right of the Mallinckrodt Plc. articles of association, and also the Act, § 1104, being such a director nomination is a matter of business to be placed on the agenda of a meeting for being voted on by shareholders). Those protected rights go far beyond voting. You precluded those nominations and "matters to be acted upon by Mallinckrodt shareholders" under your then-illegal injunctive order, rendering this meeting entirely invalid.
Page 2 of 3
You then also went so far as disallowing the facilitation of shareholder rights being exercised through financial intermediaries (an absolute requirement under the Act, § 1110, that you entirely obstructed), by precluding BHG, among other financial intermediaries (technically, even any of our prime brokerage firms that BHG clears and custodies assets through), of our ability to exercise the rights of our clients as they instruct us to, including the submission of shareholder proposals and director nominations - both rights protected under the Mallinckrodt Plc. articles of association and the Companies Act of 2014, which - again - you just admitted you have no right to deviate from. For instance, a shareholder that was a client of BHG, was required (under the Act, § 1110) to be able to instruct BHG to exercise their shareholder rights through BHG submitting a director nomination (such as myself) or a shareholder proposal (for example, dismissing all directors for cause due to violations of the Companies Act of 2014, our articles of association, and the Mallinckrodt Plc. Guide to Business Conduct, due to its prohibition of retaliation against shareholders raising integrity concerns/issues) on their behalf, yet you precluded that exercise of shareholder rights by financial intermediaries in a way that would allow you to hold BHG (or any other financial intermediary) in contempt of court, if they exercised those shareholder rights of clients, on behalf of those clients - a direct obstruction of the Act, § 1110. Further rendering your election invalid, any shares that are not cast by shareholders because they know they are precluded from voting or are afraid to do so due to your oppression, as a standard practice by most brokerages, will be artificially voted in line with the Board's self-interested advice on the shareholder ballots to re-elect all Board members.
Thank you for the admissions of the documents that you must abide by when it comes to the operations of this Company - perhaps, you should start actually abiding by them, but you are a little late.
We (really, you) also should analyze this statement of your counsel, in their August 2, 2021, letter to BHG:
"We have made no investigation into, and make no comment or admission in respect of, the title or rights Mr. Parker, The Buxton Helmsley Group and/or parties acting in concert with them assert or may assert in respect of shares in Mallinckrodt plc or any right or interest in respect of such shares."
You mean to tell me that (even having retained the top law firm in Ireland, Arthur Cox) you do not know the rights of your own shareholders, as directors of this company (the company you are legally responsible for running in compliance with Irish law)? And you wonder why I tell you to pick whether you lack competency or ethics… You just proved your absolute calculated denial, negligence, and/or corruptness, and that you are "sticking your head in the sand" for your convenience, when your shareholders are literally laying the statutes you are violating in your lap. Your willful intent to violate Irish law and our corporate charter is clear, when you just admitted you have no right to do so.
I will also point out how ludicrous you sound when you attempt to tell this shareholder base that calling a shareholder meeting to vote you all out would cause "irreparable harm", legally enjoin us from doing so for that reason, then turn around and tell this shareholder base "we are going to hold a meeting now," then shareholders speak up that the election is a sham because you have precluded our rights to even vote, then you say "oh no, it is your legal right to vote us out". What kind of con do you think you are pulling over the eyes of your shareholders, the United States Bankruptcy Court, and - more importantly - the Government of Ireland?
So, nice try of reversing course, but it is impossible to rectify your admitted illegal infringement on shareholder rights, and especially when it comes to shareholder proposals and director nominations, when the ballots are already out. Your ballots, and this meeting as a whole, are therefore entirely fatally tampered and manufactured as a result of your now-admitted illegal oppression of shareholder rights, rendering them entirely invalid. You were a little late in realizing your actions were illegal, to say the least. You are now irrefutably illegally in your positions, as of August 13, 2021, you will be in violation of the Act, § 175, and you will be illegally acting as directors, as your tenures will have expired and you will not have been lawfully re-elected. It is pretty hard (impossible) to be lawfully and legitimately re-elected when you have precluded the voting from occurring to begin with (among everything else you have illegally precluded). Phantom votes (by brokerages) in line with the Board's self-interested recommendations due to shares not being voted, as a result of your preclusion of the act of voting, are not a re-election. I do not believe that Broadridge will subscribe to such a pipe dream.
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
Page 3 of 3
New York Headquarters | Mr. Alexander E. Parker | |
1185 Avenue of the Americas, Floor 3 | Senior Managing Director | |
New York, N.Y. 10036 |
E. alexander.parker@buxtonhelmsley.com | |
T. +1 (212) 951-1530 | ||
F. +1 (212) 641-4349 |
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
richard.daly@broadridge.com; chris.perry@broadridge.com; tim.gokey@broadridge.com; shareholder@broadridge.com;
board.directors@mnk.com; info@odce.ie; marian_lynch@odce.ie; xana_mccarthy@odce.ie; suzanne_gunne@odce.ie;
ian_drennan@odce.ie;
August 2, 2021
Board of Directors - All Members | Mr. Angus Russell, Chairman |
Mallinckrodt Plc. | Mr. Mark Trudeau, Director |
53 Frontage Road, Shelbourne Building | Mr. David Carlucci, Director |
Hampton, N.J. 08827 | Mr. J. Martin Carroll, Director |
Mr. Paul R. Carter, Director | |
Mr. David Norton, Director | |
Ms. Anne C. Whitaker, Director | |
Ms. Joann Reed, Director | |
Mr. Kneeland Youngblood, Director | |
Mr. Carlos V. Paya, M.D., Ph. D., Director | |
Broadridge, Inc. | Mr. Richard Daly, Executive Chairman |
1155 Long Island Avenue | Mr. Chris Perry, President |
Edgewood, N.Y. 11717 | Mr. Tim Gokey, Chief Executive Officer |
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
16 Parnell Square | Ms. Xana McCarthy, Investigator |
Dublin 1 | Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland | Mr. Ian Drennan, Director of Corporate Enforcement |
Re: Failure of Response to Critical Integrity Issues/Concerns Raised to Board of Directors - Mallinckrodt Plc.
Ladies and Gentlemen of the Board:
This letter is being addressed to the Mallinckrodt Plc. (the "Company") board of directors (the "Board"), due to your failure to respond entirely (despite our courtesy attempt of closed-door communications) to the June 1, 2021, and July 7, 2021, letters to the Board from The Buxton Helmsley Group, Inc. ("BHG"). In that most recent July 7 letter, we raised the ultimate of possible integrity concerns/issues, entirely relating to your most recent stunt that takes your violations of Irish law and breaches of fiduciary duty to unimaginable levels: The upcoming August 13, 2021, Annual General Meeting and according "election", which you are attempting to certify as a legitimate, democratic renewal of your directorships under the most fallacious, illegal, and immoral pretenses possible. Toward the end of this letter, I have also thrown in an additional ten violations of Irish law and the Companies Act of 2014 (the "Act"). The more BHG and its counsel reviews your conduct alongside that Act's statutes, we find that the known violations are the utter tip of the iceberg - it is beyond flabbergasting what you believe you are going to get away with.
Before I even begin, I am going to, as I also did when I privately delivered BHG's July 7, 2021, letter to the Board, remind you of the Mallinckrodt Plc. Guide to Business Conduct. You so interestingly took the opportunity to point out that corporate governance document in your July 2, 2021, proxy statement filing. That Guide to Business Conduct was drafted by this Company's directors and is the framework of ethical business conduct which you took an oath to comply with upon acceptance of your directorship positions.
Specifically, and ironically, you took the time to highlight that the
Mallinckrodt Plc. Guide to Business Conduct:
"Prohibits any employee from retaliating against anyone for
raising or helping to resolve an integrity question."
BHG reminds you of this clearly ongoing policy of the Company, being you took the time to cite it, but already have violated it with your lawsuit against shareholders after they raised massive integrity issues/concerns that you never addressed, nor even responded to (except with your retaliation against shareholders raising integrity issues/concerns in the form of your lawsuit, which was the absolute first time BHG "heard" from our fiduciaries). In light of nothing but utter silence from our fiduciaries at the time of such critically unsettling integrity issues/concerns being raised, this shareholder base was left with no other recourse but to pursue our rights under the Act, with the possible calling of an extraordinary general meeting to dismiss you for cause and replace you. Rather than that causing you to change course and react in accordance with your fiduciary duties by addressing and resolving such numerous and massive integrity concerns/issues that you had ignored thus far (whether you addressed/resolved those concerns through written communication or via the telephonic conference that we were forced to formally demand through a 13-D filing), instead you responded by slapping a lawsuit on BHG to muzzle your entire shareholder base, in complete violation of the Act, § 212 (that statute, absolutely prohibiting minority shareholder oppression, without exception). That violation of actual Irish law (and not just our Guide to Business Conduct) was a much more serious offense than your retaliatory lawsuit against those raising integrity concerns was already. Then, as if it could not get worse, the Company further demonstrated their intentions by making a false statement before the U.S. Bankruptcy Court, gaslighting The Honorable John T. Dorsey and all present, falsely stating that this Company was not traded on any regulated exchange in a European Union member state, when BHG had just before explicitly pointed out to Judge Dorsey that the Company's stock traded under ticker "MCD" on the Frankfurt Stock Exchange. After giving the exact ticker on the exact stock exchange, BHG went even so far thereafter to define when Germany became a member state of the European Union, yet you still made a contrived and false statement on the record of the court that this Company was not traded on any regulated exchange in the European Union, falsely portraying that this shareholder base did not have the right to call an extraordinary general meeting under the Act, §§ 178, 1099, and 1101 (§ 1101, lowering the necessary quorum for an EGM to 5% of outstanding shares, since this Company is an Irish-incorporated PLC and its shares are traded on a regulated exchange in a European Union member state, which is Germany's Frankfurt Stock Exchange). And if you want to claim that you and your counsel did not even know where your shares are traded, that is the exact reason why so many at this reorganization table believe that those on the side of the Company in this reorganization are either completely incompetent or unethical (I will give you the liberty of picking which word, as one of them most definitely applies). And if you were not aware of where your shares are traded, then you are still dishonestly going along with an erroneous statement because it is convenient thereafter for your motives (you have not corrected course after all of BHG's letters to the Board, so we must assume your course is intentional), which is equally as shameful. I will lastly note that your actions can never be in line with your fiduciary duties when you label those whom you have a fiduciary duty to as an "adversary" (as you did in your "adversary complaint" filed against BHG). How perplexing… As held In Re Systems Services Building Group, Ltd. [2020], a directors' fiduciary duties to the entirety of a Company's capital structure survives even absolute insolvency (even throughout reorganization/liquidation proceedings). Whether you are fond of your shareholder base or not, the High Court of Ireland has not authorized you to strike us from the record, so you are entirely violating your fiduciary duties to your shareholders, whether you think you owe them to us or not. With BHG having been personally contacted by a sizable portion of your shareholder base (much larger than the quorum required to call an EGM), I can tell you that your shareholders are far from fond of you all, but the difference is that we own this Company that you have absolutely hijacked it in complete violation of the Act, § 212. Whether you think your way of course is ethical or not, it is up to this shareholder base to deal with our business as we wish (as proven by the Act, § 680, requiring uninterrupted shareholder meetings and votes, even during an insolvent Irish company's liquidation proceedings, to ensure that directors are completely upholding their duties to the entire capital structure of even an insolvent company, including shareholders).
Since you do not take our letters seriously when we give you the benefit of not airing out such integrity concerns publicly, BHG's past three letters are being included in a (simultaneous to this letter) 13-D filing with the U.S. Securities and Exchange Commission, so that those whom you have a fiduciary duty to and the investing public can see the ultimate integrity issues that you have not resolved, nor merely even attempted to address. This letter and those disclosed as part of the simultaneous 13-D filing very clearly include no actions intended or proposed to be taken during U.S. restructuring proceedings and, in fact, reaffirm that shareholders are allowed to take no actions at all, as is also very clear with your restraining order governing the actions of your entire shareholder base. BHG would not feel comfortable accepting your board seats, even if you offered them today - you are here to stay until you can explain yourselves before the High Court of Ireland, and we are making sure of it. As much as you want to gag your shareholder base though, we are indeed allowed to speak, as long as it is not false statements that we are making (just because our opinion does not match yours does not make it misleading), and we have a right to air out all violations of this Company to this shareholder base so that they are educated on all of the acts, violations, and absolute breaches of duty this Board and management are trying to sweep under the rug. Even if the U.S. Court is not enforcing Irish law right now, that does not give you an excuse, nor a right, to continue to knowingly violate it, and act as though it does not exist. Your violations and breaches are seemingly and alarmingly heightening by the day. This letter (and those letters included in the 13-D filing simultaneous to this letter) merely (and, rightfully) inform shareholders of the numerous integrity issues/concerns that BHG has raised, that this Board has not even attempted to resolve, and has provided no justification for as fiduciaries of this Company. Again, your claim of insolvency does not relieve you of your fiduciary duty to every part of the capital structure under Irish law, including shareholders (no matter how much you wish they did not exist). You do not lose that duty (an unchanged duty) until the Irish High Court sanctions your "scheme" and authorizes you to strike your shareholders from the record. Your mere, unsupported response of "we disagree with the assertions made therein" to BHG's May 20, 2021, letter to the Board, raising already-massive integrity issues/concerns before this "election" was scheduled, could not be more tasteless, inappropriate, and incongruous with your duties (as we note in our June 1, 2021, for all shareholders to see). Those few words are the response you have for ten full pages (just that first letter) of unreservedly alarming integrity issues/concerns raised, with no justification? Then, you did not even take the time to merely respond with anything at all to the letters from June 1, 2021, and July 7, 2021 (not even an acknowledgement)? By including this letter, and those past three letters (again, the last two of which you never even acknowledged receipt of), in a public 13-D filing, you have no excuse as to not having received them or otherwise. If you want to claim that it was inappropriate to publicly distribute these letters, then take your fiduciary duty seriously when you are given the courtesy of receiving such disconcerting letters behind closed doors.
As noted in the July 7, 2021, letter from BHG to the Board, you did not disclose to the U.S. Bankruptcy Court (at the time of the hearings on your requested restraining order against your shareholder base) that, when you wished "to enjoin the shareholder meeting" (directly your words, from your "adversary" complaint against your own shareholders whom you have a fiduciary duty to) possibly being called by BHG because such a possible shareholder meeting would cause such "irreparable harm", you would then then turn around and attempt running such an inherently fraudulent/tampered meeting and "election", where your shareholders are prohibited from voting against directors (directly from the restraining order, an "action seeking to remove … any directors or officers of any Debtor"), barred from submitting any director nominations as alternatives to existing directors, barred from submitting absolutely any shareholder proposals (directly from the injunction, prohibiting "any steps to … schedule … or to propose any matters to be acted upon by Mallinckrodt shareholders"). The U.S. Bankruptcy Court barred the meeting you wished to enjoin from occurring, so that a meeting would not occur at all, because you, our Board, and the Company, again, claimed any such possible meeting allowing your shareholders' voices to be heard would cause such "irreparable harm"; that was not to allow you to run an unquestionably fake and tampered election. To be clear, as also noted in the July 7, 2021, letter from BHG to the Board, we are telling you that you need to sit in your seats to face the High Court of Ireland after all you have done behind Ireland's back (BHG wants no chance that you will have an excuse to leave your positions through being "voted out"), but you are not going to stay in those seats on this attempted false premise that you properly held a meeting for your democratic re-election, as that is factually false, and beyond a lie (the Irish High Court can determine whether or not you have crossed into the realm of fraud). While your term as a director is therefore no longer rightfully renewed and I do not understand quite how you are going to explain to the High Court of Ireland how you can still be in your positions without a proper, valid, genuinely democratic re-election (free of violations of the Act, § 212), you must have some explanation for everything else you are doing, so I am sure you can cook up another irrational rationalization of violating Irish law for this violation of the Act, § 175, too. There was supposed to be no meeting at all because, as you - again - stated, it would cause "irreparable harm" - that was not a cue, nor an authorization, to run a fraudulent and manufactured one. Your attempt to maintain a false front of compliance with the Act, § 175 (statutorily requiring annual general meetings of the directors be held no further than 15 months from the previous), is your inherent admission that you have no right (under Irish law, as an Ireland-incorporated company, which seems to continually slip your mind, as you obviously continue to believe you are on some vacation from the laws of your home country) to strip the voice/rights of your shareholders, or use a foreign court to side-step those statutory obligations under the Act relating to shareholder rights, annual general meetings, and extraordinary general meetings, including the circumstances under which they are statutorily required to be held (in the case of an annual general meeting, no more than 15 months after the previous annual general meeting, and in the case of an extraordinary general meeting, upon the requisition of shareholders representing the proper quorum under the Act, §§ 178, 1099, and 1101). It is impossible to be compliant with the Act, § 175, while having already stripped the rights of your shareholders in complete violation of the Act, § 212, with a literal restraining order. The U.S. Bankruptcy Court, again, nowhere in that order, authorized this Board to hold an inherently fraudulent election after you wished to enjoin a shareholder meeting from occurring altogether (then thought you would attempt running a manufactured one), endeavoring a then-fraudulent certification of a then-tampered/false "election" and its "results". The manufactured "election" you are saying Broadridge should certify is the same as if the management and Board scavenged the ballot box and threw out the votes of their dissident shareholders before they could be counted, or (on a larger scale) just as if the President of the United States ordered all individuals who attempted to submit votes against him/her or any other potential nominees on their ballot be jailed. What a corrupt scheme you are attempting, and I know that Broadridge and its shareholders will not wish to be a part of it after this letter, which contains only everything that you should have disclosed already. Broadridge, just like the auditor of a public company, is certifying the absolute legitimacy of reported results, free of tampering (in one case, financial results, and - in another case - voting/poll results). If Broadridge were to say this election is certifiable because the number of votes "against" and "for" merely numerically are what they counted (then, deeming those numbers certifiable, legitimate election results), that would be the equivalent of Arthur Andersen certifying the financial statements of Enron merely because - at face value - the management-submitted balance sheet's assets, minus liabilities, equaled the line stating shareholder's equity. I do not think anyone would dispute that such a perfunctory criterion of face value substantiation for what constitutes certifiable, "legitimate results" fared quite poorly for Arthur Andersen. Being so, I do not believe Broadridge will choose such a mirror perilous definition of "certifiable results" to appease this Board and management putting forth such a charade (the High Court of Ireland can decide if this is attempted fraud). That would - again - be the precise equivalent of Arthur Andersen taking the position that they merely make sure that, again, the assets minus liabilities, on the balance sheet, equal the shareholder's equity line. That would also be the equivalent of, before the internet-age, an inspector of elections (as part of an in-person only shareholder meeting, with no electronic voting access) stating that they will certify the legitimacy of election results when no shareholder puts a hand up (no votes cast) after shareholders are polled for those "against" present directors, yet the inspector is fully aware that every shareholder had a gun to their head at the time when the board of directors "polled" for the votes of their dissident shareholders. These examples sound like some sort of comical parody and joke, but that is what you, the Board, have made of this Company. Such iniquitous pretenses render any possible results uncertifiable, even before results can begin being tabulated, due to the irrefutable interference and tampering by this Board and management before votes could even possibly be slipped into the "ballot box" (before ballots were even delivered to your constituency, actually). You, the Board, interfered with the legitimacy of your own election, and dishonestly did not disclose it (not even in your proxy statement to the investing public, and therefore also the United States Securities and Exchange Commission, so I highly doubt you did to Broadridge either). If you made proper disclosures, you would not have even gotten this far with planning to run such a sham of an "election", so it is not the fault of your shareholders for having to disclose and bring to light such material facts because you chose to disreputably stuff them under the rug yourselves. It would not be the "fault" of BHG for disclosing the facts that you had an absolute duty to, if you had just done what you were legally obligated to from the get-go, so hang up the fatuous blame-shifting.
As I note in my July 7, 2021, letter, I highly doubt you disclosed to Broadridge (your chosen inspector of elections), at the time you engaged them for certification of the legitimacy of your re-election as directors of this Company, that you had an active restraining order dictatorially prohibiting your shareholders from voting against directors (again, "any action seeking to remove … any directors or officers of any Debtor"), and allowing you to hold them in literal contempt of court if they do. If you had disclosed that to Broadridge, knowing the ethical standards of Broadridge myself, they would have never taken on the engagement to begin with. Beyond the prohibition of voting against directors, you also (very incurably and fatally) tampered and manufactured the results of your attempted "election" (rendering the ballot invalid, from the start, fatally, and irreversibly, even if you lifted the restraining order today, given its missing possible proposals and nominations that were already precluded, in violation of Irish law and our corporate charter) by:
You are nefariously and illegitimately attempting to renew your directorships at the upcoming August 13, 2021, Annual General Meeting, while you:
1. Have a formal restraining order prohibiting your entire dissident shareholder base from casting votes against you (in direct violation of the Act, § 212, unequivocally prohibiting shareholder oppression), and allowing the Board to hold shareholders in actual contempt of court, if a shareholder should vote against directors (directly from the injunctive order, an "action seeking to remove … any directors or officers of any Debtor").
2. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you neglect to disclose the, without question, material fact of a restraining order existing and restricting the actions of your entire shareholder base, and how it will fatally tamper, manipulate, and manufacture your election results, before shareholders even get delivery of their voting ballots.
3. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you inherently admit active and incurable violation of multiple articles of this Company's corporate charter (specifically, this shareholder base's absolute right to submit director nominations, submit shareholder proposals, and otherwise, which we were, to the hilt, coerced and legally precluded by this Board from doing, in direct violation of the corporate charter you took an oath to uphold, and in direct violation of the Act, § 212).
4. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you do not disclose your active oppression of shareholder rights (I know you will never, verbatim, admit a violation of the Act, § 212, citing that statute, but you have undeniably restricted the rights of your shareholders, which is absolute, undeniable restriction of rights of your shareholders that must be disclosed, no matter if that oppression of rights was "consented" to under duress or not) with your restraining order against your entire shareholder base. You do not disclose how that oppression fatally alters the democracy (and, therefore, legitimacy) of the annual general meeting and any business matters voted on (directors voted on, etc.).
5. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you do not disclose the active and unrectified violation of the Company's Guide to Business Conduct, where you are ongoingly retaliating against all shareholders (with your active restraining order restricting the activities/rights of your entire shareholder base) after they raised previous integrity concerns/issues, instead of resolving those integrity concerns/issues, as is your fiduciary duty. Your hollow allegations in your "adversary complaint" against BHG, used as a distorted excuse and front to push your hidden agenda of oppressing this entire shareholder base, would never even possibly exist, if you would have merely addressed and resolved the critical integrity issues/concerns raised by shareholders, instead of letting such critical issues/concerns go unanswered until the point that your constituency saw no other choice but to explore their absolute rights under Irish law to dismiss and replace you. The fact you let the situation go so far as you did where such allegations were even possible, is your fault - far from the fault of your shareholder base. Of course, BHG knew you would fail to list your active retaliation against shareholders (in violation of Irish law, the Act, and the Company's Guide to Business Conduct), but it is your duty to properly disclose all circumstances and facts for which shareholders should base whether you are worthy of being possibly re-elected, and that certainly would change the decisions of many voters, since you cannot even follow the rules you took an oath to uphold, many of which were drafted and vouched for by current directors themselves. As stated before, with BHG being forced to disclose these very material facts here that the Board omitted and were fully aware of and should have already on your own, if you want to claim that BHG bringing them to light is an issue, you are blame-shifting and gaslighting yet again when this entire situation was entirely avoidable if you made proper disclosures on your own, merely upheld your fiduciary duties, and maintained compliance with Irish law.
6. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you do not disclose that you have beyond coerced your entire shareholder base to prevent their submission of any director nominations, and - in fact - went so far as to obtain a formal restraining order to forcefully preclude your shareholders from submitting director nominations (directly from the restraining order, prohibiting "any action seeking to … nominate, appoint … any directors or officers of any Debtor"), so that you may hold them in contempt of court if they do attempt the submission of director nominations. By virtue of § 6 of the injunction, you make it clear that any shareholder (far beyond BHG) violating the active restraining order, upon an attempt to include a nomination, would result in the Company being able to hold them in contempt of court, with your reliance on that § 6 of the injunction (otherwise you would not have included that part of the order). You also do not disclose that director nominations have been virtually thrown out and are not on the ballot because you would not even consider them and were outright denying their submission so that you could ensure the present Board remains the only directors listed on the ballot, in complete violation of the Act, § 212. You then outright lie in the proxy statement filing and demonstrate absolute guilt in breaching our corporate charter (that you took an oath to uphold and comply with at all times) when you state on page 23 of the proxy filing that "as provided in its charter, the Governance and Compliance Committee will consider nominations submitted by shareholders". Are you joking? You also do not disclose the effects of your effective tampering of the ballot (the directors available to be voted) and how it will fatally restrict/manufacture the results of the election to prevent any new Board members from being instituted. You also do not disclose how, without the restraining order, the outcome of the annual general meeting, election, and business matters being voted on could be materially different.
7. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you do not disclose that shareholder proposals are missing (because any possible proposal submission would allow the Company to hold the submitter to be held in contempt of court, per § 6 of the restraining order), that shareholders were coerced to prevent submission of any shareholder proposals, and that you went so far as to obtain a restraining order to allow you, our fiduciaries, to hold shareholders in contempt of court if they attempted the submission of a shareholder proposal (the same as the issue with shareholders being barred from nominating additional directors). You do not disclose that the outcome of the general meeting undeniably could result in a very materially different outcome for the Company, if shareholders were not oppressed and restricted from being allowed to submit shareholder proposals (for instance, directors could not only be dismissed, but also dismissed for cause, if such a proposal was allowed to be put forth as BHG wished to). You also do not disclose that shareholders would, due to the injunctive order against your entire shareholder base, be subject to violation of the restraining order, § 1(c), if they were to bring proposals to the floor at the actual annual general meeting, autocratically completely silencing your entire shareholder base (any shareholder could potentially be labeled by the Board as "acting in concert", as worded in your injunctive order), in absolute violation of the Act, § 1104 (providing that shareholders/members have the right to place items on the agenda of an annual general meeting of the members/shareholders). And if you want to make the bogus claim that it was just those in the 13-D group established by BHG who were barred from submitting proposals and/or nominations, then you are admitting violation of the Act, § 1100 (categorically prohibiting anything but equal treatment of members/shareholders of a traded PLC).
8. Within your proxy statement filing for the August 13, 2021, Annual General Meeting, you do not disclose that not one Board member or executive officer (not one single person out of all of you) were in compliance with this Company's ongoing minimum equity ownership "requirements" as of even the Chapter 11 petition filing date (and most all of you, many months before that), which was nearly a month before you decided to "waive" those equity retention requirements. You also sporadically, falsely, use "guideline" as a substitute for the word "requirement" in the proxy statement filing, when they were never optional or anything near a soft "guideline". You do not disclose those active violations before you waived the requirements, and - again - that would change the mind of many voters as to whether you can be trusted in your positions or not, when you cannot even follow the rules that were vouched for by those in your position. That is a major, material deficiency of the proxy statement and omission of fact. You have been made aware of this major deficiency and omission in BHG's July 7, 2021, letter to the Board, yet you still have not cured this major disclosure deficiency (although, also unsure as to how you even could), because you know it would very much change the opinions of shareholders as to whether or not they would vote for you. As further noted in BHG's July 7, 2021, letter to the Board, your failure to disclose your active violation of ongoing equity retention requirements (every single director and executive officer), well before those stock ownership requirements were conveniently "waived" by the Board, preys on the fact that your shareholder base is now dominantly non-institutional (given, your transition from the NYSE to the OTC markets), and therefore that most all of your current shareholders that read your proxy statement and receive a voting ballot do not even know what a Form 4 filed with the U.S. Securities and Exchange Commission is, let alone how to read one. Underhanded, is a very fitting word for your proxy statement (this whole situation, really), to say the least.
Notwithstanding the above numbered list, you may refer to the full laundry list of integrity concerns/issues also discussed within the July 7, 2021, letter from BHG to the Board, along with the past two letters before that (for the convenience of all, included in the 13-D filing simultaneous to this letter).
Before I get to a list of additional violations of the Act identified just since our July 7, 2021, letter, I will very pithily tell you to drop the absolute load of boloney that your illegal attempt to oppress your shareholders and strip them of their rights was "consented" to. Your mere request (the initial request) to obtain an injunctive order against shareholders to oppress their rights and interests is illegal under Irish law on its own (per the Act, § 212, "powers of the directors of the company … being exercised … in a manner oppressive to … any of the members") - it is the equivalent of attempted assault, which is a crime in itself, even if you were not successful in the full crime of assault. An act is also not "consent" when the party "consenting" is being coerced by fiduciaries and under absolute duress. Your successful coercion does not make your illegal act legal - what a convoluted pipe dream, if that is your rationale. I will also add, the initial restraining order was met with a 45-minute oral argument by BHG as to why the restraining order requested in violation of the Act, § 212, should not have been instituted (far from the "consent" you misleadingly claim), outlaying the Board and management of this Company's numerous violations of Irish law, our corporate governance rules, mirror breaches of duty for which directors were held personally liable in Irish High Court cases, etc., as to why shareholders were exercising their rights for very meritful reasons. After the "temporary" restraining order was forced on BHG, despite its 45-minute argument before the court as to why it should not be issued (again, far from consent, and - in fact - the complete opposite), then, leading up to the trial for making that "temporary" restraining order permanent, your legal counsel threatened BHG through our legal counsel that you would drag out depositions and trials based on allegations that included alleged violation of statutes for which no private cause of action even exists (you cannot create a private cause of action to rely on out of thin air), which means your main goal with that litigation (with no legal grounds to sue as a private entity, given no private cause of action to rely on) was to harass BHG and myself with those claims for which you had no right to file suit over as a private entity, also in complete violation of your fiduciary duties (and, again your Guide to Business Conduct). Then, due to the coercion of the Company toward BHG, BHG then "consented" to a restraining order remaining in place due to threats made to BHG by the Company, in complete retaliation for BHG's exercising of their rights under Irish law when fiduciaries are not fulfilling their duties (not even merely attempting to address integrity issues/concerns being raised). The restraining order was far from consented to being actually instituted (again, a 45-minute oral argument as to why it should not have been instituted), but was only "consented" to remain in place due to the duress at hand as a result of the Company's threats, as BHG also knew the restraining order would anyways remain in place, even if a full trial was conducted, given that the U.S. court very seemingly did not care if the Company was violating Irish law, so there was no purpose in BHG spending countless thousands to defend why the restraining order was not meritful, if the U.S. court already was of the position that they apparently did not care about Irish law. With your 13-D allegations (which there is absolutely no private cause of action for you to rely on, again, making them absolute harassment), you criticize this shareholder base for how well they assembled to regain control of this Company because our fiduciary directors were not acting in the best interest of the entirety of the capital structure (again, as held to be required even through absolute insolvency In Re Systems Services Building Group, Ltd. [2020]), similar to a robbery victim being criticized by their attacker for having "assaulted" them through their physical defense of themselves as a means of allowing an opportunity to run from the attacker - that is a disgraceful and beyond appalling aspect of the situation to focus on as part of your perspective relative to it. Those claims against BHG were - again - a mere scapegoat and façade for your hidden agenda of getting a muzzle on your shareholders, far beyond BHG (crystal clear from § 6 of the injunctive order). Beyond that, this entire shareholder base did not "consent" (as you misleadingly tout that term to the public, to my legal counsel, and in letters to BHG) to that cram-down gag order. BHG had the choice of "accepting" it while under duress, for the High Court of Ireland to intervene when possible, or face your threatened continued litigation based on statutes for which no private cause of action even exists (therefore, making it vexatious litigation), and the previous option was the lesser evil - BHG and this shareholder base was going to be oppressed by this Board either way. So, while I know your argument to the High Court of Ireland will be that your gag order was not "oppression" because you got "consent" from my firm under duress, your lawyers are very competent, so I would believe they are aware that duress rids the validity of "consent". And no matter if you received "consent" or not, oppression of minority shareholders is still in violation of the Act, § 212 - unless we proposed our own gag order, it is illegal. The mere fact that you even requested a gag order is already an attempted violation of your duties and the Act, § 212 - I certainly did not request an order to enjoin my own rights and never would have proposed it, obviously. The High Court of Ireland will see this situation for what it is - I am very confident in that. This entire shareholder base has a claim against all directors and this management for your oppression of every shareholder under your fiduciary duty. While you also will likely try to claim that the active injunctive order only lists BHG, and therefore was not meant to oppress every shareholder, it is very clear through § 6 of your injunctive order, that it applies to all shareholders - that is coercion and oppression of every shareholder. The spirit of the injunctive order, very clearly, was to cover any shareholder that could possibly violate those statutory and constitutional rights which you forcefully stripped from your shareholder base. That is abundantly clear. While you also might try claiming that only BHG is prohibited from voting against directors, that is false, as if another shareholder (any shareholder in this shareholder base) were to submit a shareholder proposal to dismiss all directors for cause, they would be subject to violation (and consequential effect) of the injunctive order, § 1(d), and possible contempt of court under § 6 of the order, so your injunctive order covers them as well - you do not get to pick the bits and pieces that apply to individual shareholders in an attempt to make yourselves look better (prejudicial treatment across shareholders is, again, a violation of the Act, § 1100). It is utterly clear that your "consent" argument is entirely fallacious and misleading, as the order's initial institution was argued orally by BHG for 45 minutes before its unconsented institution, in violation of the Act, § 212, every other shareholder in this shareholder base had no part in the "consent" (that "consent" under duress was to merely allow the unconsented to and contested/objected to order to remain, after your coercion of BHG) you continually attempt to allude to, and it was only "consented" to under the coercion and duress of your vexatious litigation against your shareholders for raising the major integrity concerns/issues you failed as fiduciaries to resolve, in complete violation of the Mallinckrodt Plc. Guide to Business Conduct anti-retaliation policy and your ever-existing fiduciary duties to the entire capital structure under Irish law.
Since the July 7, 2021, letter, we have also become aware of additional violations and obstructions of the Act by this Board and Company, which BHG also wishes to put you on firm notice of:
1. This Board has obstructed the provision of the Act, § 179 (providing that members/shareholders of this Company have the absolute right to apply to the Irish High Court for a court-ordered extraordinary general meeting), expressly due to their ongoing oppression of this entire shareholder base's rights under the Act, in direct relation to your congruent violation of the Act, § 212, whereby you impede on the ability of every shareholder to apply with the High Court of Ireland for relief of their illegal oppression. It is a legal right of this shareholder base under Irish law (the Act, § 179) that they are able to freely apply with the High Court of Ireland for relief of oppression, and you have - without question - interfered with their ability to freely exercise that right (absolute oppression of that right).
2. Obstruction of the Act, § 178 (requiring directors to convene an extraordinary general meeting upon the requisition of a proper quorum of members/shareholders, which is 5% of members in the case of a Traded PLC, with reliance on the Act, §§ 1099 and 1101, since the Company is, again, traded on the Frankfurt Stock Exchange under ticker "MCD"), provided the provision of the Act, § 178(2), which explicitly provides that individual Irish companies have no right to override that statutory right of Company members/shareholders under the Act, § 178, and that the Act, § 178, remains a right of Company members/shareholders, even if not included in a Company's constitution. You have entirely obstructed the Act, § 178, when that § 178(2) explicitly states you are one hundred percent prohibited from doing so. The Act, § 680 (requiring a liquidator convene general meetings of the members/shareholders continue uninterrupted and at least once per year throughout those liquidation proceedings), directly supports our argument that insolvency proceedings are a time during which shareholders/members unrestrictedly retain their innate rights under the Act (to ensure to that value is incentivized to flow as high up the capital structure as possible throughout such insolvency proceedings) and that member/shareholder meetings must continue as normal, without interruption, giving no right to directors, liquidators, examiners, etc. that they may interfere with member/shareholder meetings and/or obstruct shareholder rights (in violation of the Act, § 212). In fact, the Act, § 680, not only requires shareholder meetings to be held throughout insolvency proceedings, but requires them to be, minimally, held even closer together. During the normal course of business (outside of an insolvency liquidation setting), under the Act, § 175, meetings are to be held no further than 15 months apart, while the Act, § 680, requires them to be held no further than 12 months apart, actually statutorily enhancing shareholder rights during insolvency. The Act, § 680, is absolute proof that shareholder rights are ongoing at all times, even throughout insolvency, until a Company's shares are struck from the record and a Company no longer legally exists. Nowhere in the Act does a provision provide a Company to interfere with member/shareholder rights, § 212 exactly prohibits that, and § 680 directly supports our position. Examinership proceedings also include meetings of the members/shareholders, which you already conceded to including in your Chapter 11 disclosure statement, for which also directly supports our position that, even in a time where a Company believes it is insolvent, member/shareholder meetings still continue normally throughout such insolvency proceedings, members/shareholders do not lose their voice/rights even upon the Irish High Court agreeing a company is insolvent (through the Company being admitted into the examinership or liquidation process), nor are directors allowed to oppress the rights/voice of their members/shareholders which have so entrusted them as fiduciaries not to obstruct any provisions of the Act, including § 212.
3. In violation of the Act, § 1100 (prohibiting anything but equal treatment of members/shareholders of a "traded PLC"), this Board has prejudicially treated BHG (and put their sights on any shareholder/member acting in "concert", so therefore automatically the entire 13-D group, which BHG had included various shareholders within to indicate broad shareholder base demand for an extraordinary general meeting to be called) since its lawsuit against BHG, also in complete violation of the Company's Guide to Business Conduct, wholly prohibiting retaliation against those raising integrity concerns/issues to the Board. Further, this Board is broadly prejudicing their entire member/shareholder base based on individual shareholder-by-shareholder actions, expressly indicating in the restraining order covering the entire shareholder base that any shareholder which does not support the Board, its initiatives, and wishes to exercise their shareholder rights under the Act in a way that does not support the present Board's initiatives, will be prejudicially retaliated against, all the way up to being possibly held in literal contempt of court. You, our Board, are clearly and maliciously using a foreign court for a vacation from Irish law, and as a means to prevent your constituency from reporting your numerous violations.
4. In relative relation to number 2 of this list (your obstruction of the Act, § 178), your absolute obstruction of the Act, § 1101, providing that members of a traded PLC (again, I think you need to get a grip on where your stock is listed, as it is traded on the Frankfurt Stock Exchange under ticker "MCD", which Germany has been a member state of the European Union since its founding) have the absolute right to call an extraordinary general meeting upon the requisition of members/shareholders representing 5% of such a company's outstanding common stock shares.
5. In obstruction of the Act, § 1104 (providing that shareholders/members have the absolute right to place items on the agenda of an annual general meeting of the members/shareholders), you have prohibited your shareholders from placing shareholder proposals on the agenda of the upcoming August 13, 2021, fatally rendering your annual general meeting invalid due to its violations of the Act. And if you want to try to make the claim that you are only prohibiting certain types of proposals from certain members/shareholders of the Company, then you are directly conceding to your violation of the Act, § 1100.
6. In obstruction of the Act, § 1106 (providing that members/shareholders have the absolute right to speak at an annual general meeting), you have muzzled your shareholders from freely speaking and bringing forth proposals to the floor, with your restraining order restricting the actions of your entire shareholder base, including restricting the speech of your shareholders/members in the way of verbally bringing proposals forth to the floor of the annual general meeting, in - again - complete violation of the Act, § 212.
7. In obstruction of the Act, § 1107 (the right of shareholders/members to freely speak and ask questions at a general meeting of the Company), your restraining order against shareholders directly interferes with the ability for members/shareholders to freely ask questions at a general meeting, for fear of violating one of the intentionally vague prohibitions of the restraining order. And again, if you attempt to claim that you are only restricting the actions of BHG and the 13-D group (those acting in "concert"), then you are prejudicially treating BHG and the 13-D group, and therefore expressly conceding to violation of the Act, § 1100.
8. In obstruction of the Act, § 1109 (providing the shareholders the absolute right to vote by correspondence), you have delivered shareholders/members ballots, which you will then claim allows your shareholders to vote, but - like your attempt to maintain a false front of compliance with the Act, § 175 (where you are attempting to run a completely invalid, tampered annual general meeting because you know you are required to no further than 15 months from the last general meeting), you provided us a ballot, but then have an active restraining order prohibiting us from voting the ballot as we wish, making the ballot (and, therefore, this entire "election") an absolute hoax. You give us a ballot, then tell us in the restraining order that we are prohibited from voting as we wish against directors, which is then an absolute falsehood then that we are able to vote by correspondence - plain and simple. We are also not even allowed to freely vote in person without violating the conditions of your restraining order (again, "any action seeking to remove … any directors or officers of any Debtor", which that would certainly qualify), so it goes far beyond the violation of not being able to vote by correspondence. You also have delivered an entirely invalid ballot, given that it is missing shareholder proposals that you are fully aware your shareholder base wished to bring forth (specifically, dismissing all directors for cause), yet you made those proposals illegal to submit, along with the director nominations that you are fully aware your shareholder base wished to submit, in complete violation of the Act, § 212, and our corporate charter. How fascinating…
9. In violation of the Act, § 1110, the Company is required to give shareholders a "full" account of the results of a vote. How can you say that the "results" of your absolutely manufactured "election" are the "full" account of votes, when you effectively scavenged the ballot box and tossed out the ballots of dissident shareholders through your prohibition of them even being cast? How can you also say that those are the "full" results when you have essentially left off, and not allowed for voting on, director nominations that you fully precluded from even being submitted, in complete violation of our corporate charter? You, essentially, also threw out the ballots that included votes for any directors that were not presently on the Board. What an absolute mockery of Irish law - I do not think they will find any humor in such perversion.
10. Further, as part of the Act, § 1110, you are one hundred percent required as a Company to facilitate the exercise of shareholder rights by financial intermediaries (for which, BHG unquestionably qualifies as a registered investment advisory firm). How can you say you are facilitating the exercise of shareholder rights through intermediaries, as required under the Act, when you have - in fact - precluded those basic actions of exercising those rights to begin with, with your restraining order against this entire shareholder base? Good luck explaining that one. You are violating that statute (yet another one), by attempting to preclude BHG, as a financial institution/intermediary, from facilitating the exercising of shareholder rights at the instruction of its clients, with your restraining order already in violation of the Act, § 212. As illegal as it is for you to have instituted your injunctive order, given the Act, § 212, BHG is not advising clients how to vote their shares, but - given that we have been delivered a ballot - we are entirely required to contact clients to inform them that we have received a voting ballot that represents the voting power of their shares in the overall share count available for voting exercise on our master ballot for the entire firm of BHG, for which we are - again - legally, yet illegally, precluded from advising on how to vote, are legally required to tell them that they are technically precluded from voting, but if the client of BHG instructs us to still vote their shares a certain way, BHG is legally required to follow our clients' instructions, without deviation - that is not a choice on our end, and an absolute fiduciary duty. BHG (and I, as a representative of the firm) has absolutely no control over whether a client votes their shares, how clients of the firm vote their shares of the Company, and if a client instructs BHG that they wish to vote their shares with instructions as to how they wish those votes to be cast (given, BHG cannot express an opinion on voting options), BHG - as a fiduciary - must heed to the client's instructions and wishes. It is an absolute duty of BHG to follow the orders/instructions of clients. If this Company and Board is of the position that BHG should act in absolute deviation of the instructions received by its clients, you are directly asking BHG to break its fiduciary duty as much as you all have, and - that - I refuse to do. BHG is not taking any risk of losing our operating standing because you wish to evade the laws of your country of incorporation, your own fiduciary duties, oppress/coerce your shareholders, and otherwise - that is your problem. I can tell you that certain clients have already stated they will not be voting their shares, in fear of further retaliation by this Board, further supporting the absolute illegitimacy of this "election", which I have no doubt will be nullified due to the irrefutable coercion of this entire shareholder base, not to mention the equally irrefutable previous and active violations of the Act, § 212 (not to mention the numerous other statutes), with regards to unrestricted voting, obstruction of this shareholder base's absolute right under Irish law (and this Company's constitution) to submit director nominations, and this shareholder base's absolute right under Irish law (and this Company's constitution) to submit shareholder proposals. I will conclude this numbered item with, verbatim from the U.S. Securities and Exchange Commission's circular on an investment advisor's fiduciary duty and responsibility related to voting authority of client security interests (link in footnote), "an investment adviser [should] form a reasonable belief that its voting determinations are in the best interest of the client, it should conduct an investigation reasonably designed to ensure that the voting determination is not based on materially inaccurate or incomplete information." 1 BHG has conducted our investigation of the Board's approved and submitted proxy statement materials and has very easily concluded that you not only have deceived your shareholder base, but outright lied in that disclosure filing (such as, the Board-approved statement that director nominations were being considered). Upon this investigation conclusion, BHG also (per the precise obligations in that cited circular) responsibly informed the Board, Broadridge, and Ireland's Office of the Director of Corporate Enforcement, on July 7, 2021, of the numerous alarming deficiencies of disclosure within the proxy statement distributed alongside these "election" ballots, the absolute lies in that proxy statement (again, such as that director nominations were being considered), and - above all - this Board never mentioning/disclosing once the restraining order that bars your shareholder base from participating in this "election" (participation that is this shareholder/member base's absolute right under the Act) and how your restraining order oppressing/stripping your member/shareholder base's rights fatally tampered and manufactured the results of this "election" before it even started. BHG has received numerous calls from shareholders confused about this "election" and their rights, given the restraining order and its entirely fatal effects. No one knows what they can and cannot do anymore, which is our very firm basis for belief that the High Court of Ireland will nullify this "election" (and, hopefully, grant our request for your disqualification, given such illegal and immoral behavior that absolutely illustrates the ethical standards of this Board and their "wish" to uphold Irish law).
_________________________________________
1 See Fiduciary Interpretation, 84 FR 33669, at 33674 (also, page 4: https://www.sec.gov/rules/interp/2019/ia-5325.pdf). See also Proxy Voting by Investment Advisers, Release No. IA-2106 (Jan. 31, 2003), 68 FR 6585 (Feb. 7, 2003) ("Proxy Voting Release"), at 6586 (explaining that an adviser's duty of care with respect to proxy voting requires, among other things, an adviser with proxy voting authority to monitor corporate events.)
Before closing, I will also put on the record with this letter that, without prejudice, BHG is not going to file an objection to confirmation of your plan, as it is clear the U.S. court wishes to push through this plan, despite its numerous illegalities and inequities under Irish law. You can consider the content of BHG's letters, our very firm, unresolved grounds of objection to the plan. A "scheme of arrangement" illegally derived and the result of coercion, is automatically precluded from approval/sanctioning, as firmly held in the Irish High Court case of In Re Colonia Insurance Ireland Ltd. [2005]. Even if your valuation opinion as part of your "scheme" was correct (which you have no factual proof of), your plan is absolutely invalid on even just the single basis that StrataGraft®, which undoubtedly added material value to the asset side of the balance sheet of this company would - in a liquidation - cause stakeholders receiving partial to no recovery, to receive an enhanced recovery than initially proposed (given, that this plan is based on the pre-StrataGraft® financial conditions of this Company). In a liquidation, that extra value from StrataGraft® would have flowed further up the capital structure than when you began the liquidation, when your plan does not reflect that added value. You also just secured more revenue from that drug than you disclosed losing due to the decision on the CMS/Acthar issue, so you do not have any grounds for "hopeless insolvency" due to revenue loss either. Further, you already admitted that those set to receive equity are "over-secured" at the expense of other stakeholders receiving partial or no recovery, which nullifies your plan yet again, admitting that stakeholders would fare better under an actually equitable plan. You cannot simply toss someone extra value and then tell the other person whose expense that extra was given, "sucks to be you". If you actually held proper valuations and auctions for assets/equity, you would know what it is worth so that you would actually be giving the proper amount to every stakeholder, with no "over securing" at the expense of other stakeholders - you owe an equal an equal duty to all stakeholders. You also cannot take a number on a balance sheet, whack off an arbitrary amount of it (just enough to portray insolvency, and then a little extra), and say that is what the asset would garner in a liquidation - that is an utter joke and the exact reason Ireland set the precedent they did in Systems Services Building Group, Ltd. [2020], to prevent assets being dealt (whether through a reorganization or liquidation) at an undervalue, to absolutely prove out value, and to ensure that every stakeholder receives every penny possible for their investment in the company (whether bonds, stock, or otherwise). If this your best attempt at running a company, my god, none of you belong at any company. And even if you modify the amount of equity being allocated to the parties it is to try to nullify your impeaching "over secured" statement, you still have no proof that the new amount is even the correct amount because you do not even know what that equity is worth (cannot possibly, given no open market auctions to prove out value of even the balance sheet, as required by the previously cited case of Systems Services Building Group, Ltd. [2020]). You did not hold open market auctions for equity to prove your theory of "worthlessness" and assure maximum value distribution to shareholders, you did not hold an open market auction of assets to prove your ludicrous, unsupported valuation opinion placed on assets such as our unapproved drug pipeline… Your intent could not be painted on the wall any clearer with your actions, lack of care, and utter contempt toward those whom you are supposed to take utmost care of as part of your ever existing fiduciary duty. Also, let me take a guess: In the imminent 10-Q filing, you will mark down the assets a little more to try to prove out your "hopeless insolvency" song and dance (with no justification, as you tout how great the company is doing in your just-filed proxy statement, all of its wonderful drugs in the pipeline being made progress on, just after StrataGraft® is approved, and so many other wonderful things that far from justify any asset write-downs) - it is almost as if the next chapters of this story are already written.
As also stated at the end of the letter dated July 7, 2021, this letter (and the three letters previous to this) will be filed with the High Court of Ireland as evidence when the Company opens a case to attempt entering the Irish examinership process and/or approval of this Board's completely invalid and illegally derived "scheme of arrangement". Until then, we will allow you to enjoy the rest of your vacation from Irish law during these U.S. proceedings that you so wish to push through on and will abide by your restraining order against shareholders, but you are not going to, in your proxy statement, to Broadridge, the investing public, and the Government of Ireland, falsely portray and deceive that this is some certifiable, legitimate renewal of your directorships as part of an ongoing, uninterrupted, and legitimate democracy, as it is not. This whole situation is the biggest slap in the face to everyone at this table, and especially the Government of Ireland. Unless the High Court of Ireland throws out the entire Companies Act of 2014 (for as many statutes as you have absolutely violated and obstructed) and wishes to nullify the precedent of such ethical standards set by those High Court cases cited by BHG, your "scheme" is dead on arrival. Sanctioning this plan would result in setting an additional, unequivocal precedent that, if you are a big enough of a company, you are exempt from the Companies Act and - if shareholders are not aware of a board plotting against those it has a fiduciary duty to hijack the company from its stakeholders (not just shareholders) - they have the right to run off with it. Your further attempt to falsely portray (and put forth for certification) that this is some democratic process is entirely fictitious, dishonest, and reprehensible (we will let the Irish High Court determine if it - in its entirety - crosses into the realm of fraud). You, the Board, singlehandedly ended the democracy of this Company months ago, so do not mislead that such democracy still exists after your unequivocally fatal destruction of it and domineering transition to your present de facto oligarchic regime.
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
New York Headquarters | Mr. Alexander E. Parker | ||
1185 Avenue of the Americas, Floor 3 | Senior Managing Director | ||
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com | ||
T. +1 (212) 951-1530 | |||
F. +1 (212) 641-4349 |
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
richard.daly@broadridge.com; chris.perry@broadridge.com; tim.gokey@broadridge.com; shareholder@broadridge.com;
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July 7, 2021
Broadridge, Inc. | Mr. Richard Daly, Executive Chairman |
1155 Long Island Avenue | Mr. Chris Perry, President |
Edgewood, N.Y. 11717 | Mr. Tim Gokey, Chief Executive Officer |
Board of Directors - All Members | Mr. Angus Russell, Chairman |
Mallinckrodt Plc. | Mr. Mark Trudeau, Director |
53 Frontage Road, Shelbourne Building | Mr. David Carlucci, Director |
Hampton, N.J. 08827 | Mr. J. Martin Carroll, Director |
Mr. Paul R. Carter, Director | |
Mr. David Norton, Director | |
Ms. Anne C. Whitaker, Director | |
Ms. Joann Reed, Director | |
Mr. Kneeland Youngblood, Director | |
Mr. Carlos V. Paya, M.D., Ph. D., Director | |
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
16 Parnell Square | Ms. Xana McCarthy, Investigator |
Dublin 1 | Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland | Mr. Ian Drennan, Director of Corporate Enforcement |
Re: Notice of Election Rigging by Directors and Management - Mallinckrodt Plc. (2021 Annual General Meeting)
Broadridge, and Ladies and Gentlemen of the Board:
This letter is primarily being addressed to Broadridge, due to their retention as the trusted inspector of elections for the Mallinckrodt Plc. (the "Company") 2021 Annual General Meeting. This letter is also being sent to Ireland's Office of Director of Corporate Enforcement, to add to their continued, growing investigation case file on the Company. In short, I am absolutely appalled and revolted that you, the board of directors (the "Board") of this Company, would even attempt certification of this election, its proposals, and its possible results as anything even near certifiable or a fair and genuine democratic process initiated by this Board.
While I know you, the Board, are only holding this meeting because you know you are obliged to under the Companies Act of 2014 (the "Act"), § 175 (statutorily mandating annual general meetings be held no further than 15 months apart, with the scheduled August 13, 2021 shareholder meeting being exactly 15 months since the last), I very much doubt that you told Broadridge, at the time you engaged them to hold such an important title as inspector of elections, that you filed for and were granted an actual restraining order (yes, Broadridge, a formal restraining order issued by a court) to allow yourselves (fiduciaries of this Company) to hold all of your dissident shareholders (you lumped the entire dissident shareholder base under the enclosed injunction, as can be seen in the highlighted part of Exhibit A, § 6) in literal contempt of court if they attempt to displace/remove yourselves, submit shareholder proposals to nominate new directors, submit shareholder proposals to remove/dismiss any of you, submit any other matters to be acted on by shareholders, etc.
You, the Board, did not disclose to the court that, after you would attempt to block (and successfully blocked) your entire shareholder base from calling a shareholder meeting (directly your words, "to enjoin the shareholder meeting") because it would cause such "irreparable harm" (again, your words, not mine), that you would then turn around and attempt to hold such a tampered democratic election (much sarcasm) under such iniquitous pretenses and attempt to certify its results as legitimate, once you already made it illegal for your shareholders to displace directors (vote against them), nominate alternatives, etc., rigging the meeting and its election results before it even began. Never have I seen a case where a court has allowed a company to block a shareholder meeting, then allow them to run a rigged election (where shareholders are only legally allowed to vote for directors, and not against them, or otherwise be held in contempt of court) and allow them to falsely certify the election as legitimate re-election of directors. To say your scheme is a sham, is an understatement.
You think you have a certifiable election when you make it illegal for your entire dissenting shareholder base to displace you, with an ultimate possible consequence of having them thrown in jail (as a possible result of being held in contempt of court) if they do? You, our Board, obtained the enclosed/referenced injunctive order in a foreign court (a U.S. court, not versed in Irish law) because it was completely illegal in your country of incorporation (the Act, § 212 explicitly prohibits and deems minority shareholder oppression by the directors to be illegal, with no exception). In Re Colonia Insurance (Ireland) Ltd [2005] 1 IR 497, the High Court of Ireland also explicitly prohibits coercion of stakeholders as part of the origination of and bringing forth a "scheme of arrangement" for potential sanctioning by the High Court of Ireland, making any element of coercion a criterion for immediate disqualification of any such proposed "scheme", yet you continue to spend millions per month on a reorganization attempt you know is already entirely invalid, and then attempt what would be an entirely invalid election to renew your directorships as well... You coerced far beyond The Buxton Helmsley Group, Inc. (hereinafter, "BHG") with your injunctive order, so do not make another desperate claim that your injunctive order was to stop only BHG's actions to "frustrate" your reorganization process that is fraught with violations of Irish law. The fact that you settled on the injunction shows that your claims against BHG were a mere façade of your actual intentions/motives with your "adversary" suit initiated to restrain your entire shareholder base (far beyond BHG). You used BHG as a scapegoat to put forth a hidden agenda. Your goal of coercing and literally restraining all opposing shareholders could not be clearer with your enclosed, purposely vague injunctive order, and especially when you see Section 6 of that injunctive order (again, included as Exhibit A). Your injunctive order against your dissident shareholders covers genuine, lawful acts by the directors, but BHG has the right to speak up about such a dishonest attempt by the Company, its directors, and management, to knowingly attempt the certification of such a completely rigged election. If you hold some sham of an election at this point, do not mislead people that it is some legitimate democratic process, as it is not.
Off the bat, given the restraining order included as Exhibit A, your proposed voting ballot is automatically invalid, since you precluded your shareholders (far beyond just BHG) from including absolutely any proposals (from Exhibit A, § 1(c), prohibiting proposition of "any matters to be acted upon by Mallinckrodt shareholders"). The ballot is completely invalid and uncertifiable, from the start. Then, if you took a vote of the shareholders on the proposals that you did include, it is then further without question that your voting results are (again) uncertifiable, given you have led shareholders to now believe it is illegal to vote against you through your injunctive order coercing your constituency (Exhibit A, § 1(e), prohibiting "any action seeking to remove, replace, nominate, appoint, elect or interfere with the election of any directors or officers of any Debtor"), threatening to ultimately, possibly send any violating shareholders to - again - the actual "clink" (a possible consequence of someone being held in contempt of court). You have incurably influenced your election through irreversible coercion to ensure you retain your positions and have entirely disrupted the democratic processes as such. To represent your attempted "democratic process" of an election now as genuine is absolutely, entirely fallacious. Your influence and coercion is entirely fatal to the legitimacy of any election. As I identify in my last letter to the Board, while you characterized your injunctive order as a "consent" order, "consent" under coercion is not "consent" (again, refer to my example of a streetside robbery) - you are the misleading ones when you represent "consent" under duress as such. Beyond that "consent" issue, you lumped the entire shareholder base under the injunction, yet no other shareholders "consented" to the injunction, yet you have filed with a court that all dissident shareholders (acting in "concert") are covered under the injunction, and so that is now what your shareholders believe (that is, those who even know about the injunction, as shareholders were not properly served a copy of it). It is now too late to make any modification of the order or to attempt clarity, as you have already endlessly confused, frightened, and mislead your shareholder base. You do not think that your shareholders now believe that if they were to somehow vote you out, that you would not initiate litigation against those "adversaries" (how you classified BHG in your "adversary complaint") that voted against you?
I will add, if BHG's established 13D group, and those who are like-minded, but not a part of that official group (yet, acting in "concert", so therefore governed under the enclosed injunctive order), were able to put forth clearer resolutions to be acted upon (given, that the shareholder base of the Company, now an OTC security, is not institutional dominantly, and therefore less sophisticated), you undeniably could get a completely different result. You also could undeniably get a completely different result if those shareholders in BHG's established 13D group, and those who are like-minded, but not a part of that official group (yet, acting in "concert", so therefore governed under the enclosed injunctive order) were not precluded from including a proposal to not only dismiss directors one-by-one, but all directors for cause with immediate replacement as of the time of the shareholder meeting (as BHG originally intended). You have purposely altered/precluded resolutions from being brought forth, and therefore have restricted the voice of your shareholders to undeniably limit the possible results of your "election" in your favor (the fact that shareholders could not submit a proposal to dismiss all directors for cause is proof).
You are in no position to hold absolutely any certified election at all, given your coercion of those whom you have a fiduciary duty to, and active restraining orders against them to ensure you remain in your positions. Even if you lift that injunctive order today, your annual general meeting is invalid, given your restraining order prohibited your entire constituency from including numerous types of proposals, that could have provided clearer avenues to achieving the goals of this shareholder base (if, that is, we were able to voice ourselves, which we have been muzzled from doing). Even if you, our Board, removed the restraining order, and resubmitted a proposed ballot with shareholder proposals you previously precluded from being submitted by shareholders, you still have a completely uncertifiable election, given your already-committed coercion of your constituency, which there is no way to certify will not have skewed voting results thereafter as a result of the fear you have instilled into and the forceful manipulation of those you have a fiduciary duty to. While not being able to hold an annual general meeting will render you in complete violation of the Act, §175, that is no one's fault but your own. Your attempt to hold this annual general meeting with a vote of the shareholders is your further admission that you have no right to strip the rights and voice of your shareholders throughout this reorganization you are attempting, yet you already have with your injunctive order. Again, you have stripped the rights of shareholders far beyond BHG with your injunctive order, so do not claim for one second it was because of your absolutely desperate allegations against BHG for speaking up about your numerous violations of Irish law and our corporate governance rules, and BHG being forced to take matters into their own hands because this Board refused to speak with their shareholders (even before filing your Chapter 11 petition, BHG had communicated with the Board, and received no response). You, our Board, are attempting to enter an election cycle as if you are the leaders of China or North Korea, and I think if you ask the High Court of Ireland or the Office of Director of Corporate Enforcement in Ireland (again, who is already investigating you), you do not have the right to turn this company into such a virtual oligarchy.
Let me be clear that, while you cannot hold an annual general meeting because it would be completely invalid and uncertifiable at this point due to your already committed, incurable violations of Irish law, I am not telling you, the Board, to leave. In fact, BHG and its clients are of the position (now, that you have been so hostile with your shareholders) that we think it would be best you stay in place, as we believe you need to defend your actions before the High Court of Ireland as to what you have done in the United States behind Ireland's back. BHG refuses to make any attempt to displace you (including, voting against directors) before you get your chance to face the "music" that you "composed" at your own free will with your endless, and growing, violations of law and your fiduciary duties. As much as we know the injunctive order in place against shareholders is illegal under the Act, § 212 (prohibiting the oppression of minority shareholder interests/rights, with no exception), we are going to respect the order and abide by it by not voting you out. You have, however, coerced BHG into not speaking with other shareholders (it would be too risky, given the injunction) to inform them that they are not legally allowed to vote against directors, so you kind of shot yourself in the foot there (a way BHG could have helped you stay in place, actually).
BHG sees no other possible option but for the Company to file a motion with the U.S. District of Delaware Bankruptcy Court, to give it some excuse to further flout Irish law (now, the Act, § 175, though there is no exemption/exception, just like the Act's § 212, prohibiting minority shareholder oppression), but we simply cannot rest silent without speaking up (though, after this letter, we have said all that we need to for the remainder of this Chapter 11 case) about this Company's attempt to certify the authenticity of a knowingly deceptive/untrue election, as though its results (and, from the start, its ballot) were not intimately interfered with and manipulated as a result of the Company's already previous flouting of the Act, § 212, and that any results would be certifiable as some genuine, freely democratic process initiated by this Board. It is legally impossible to maintain compliance with the Act, § 175 (requiring democratic annual meetings/elections being held no further than 15 months apart, with no exception), when you already have such incurable violations of the Act, § 212 (explicitly prohibiting the oppression of minority shareholder interests/rights, with no exception). The only reason any of your claims in your "adversary complaint" against BHG even exist, are because of your defiance to merely even speak with your shareholder base, whom you never lose your fiduciary duty to (see Systems Building Services Group Limited [2020], where the High Court of Ireland ruled that directors' fiduciary duties to all stakeholders in the capital structure survive even absolute insolvency).
As a few critical points for the Board (and Broadridge) to be aware of as great issue within your proxy statement filing on Friday, July 2, 2021 (the "Proxy Filing"):
1. You, the Board, admitted guilt in violating our ongoing equity retention requirements, by stating in the Proxy Filing that "on November 3, 2020, the Board of Directors waived compliance with the stock ownership guidelines for the duration of the Chapter 11 Cases." First, you misrepresent those corporate governance rules cited in that sentence from the proxy statement you just filed as a "guideline", when they are not a guideline, but a firm "requirement" in the compensation plan rules you agreed to adhere to. You affirm they are a requirement in the previous sentence, yet you use "guideline" in the next sentence. Those two words are far from the same, and completely contradictory (with completely different meanings), in an attempt to further cover up your mess. You want to talk about an inaccurate and misleading proxy statement? You also do not disclose that not one director or officer was compliant with those ongoing equity retention "requirements" as of the time of Chapter 11 filing (October 12, 2020, which is nearly a month before you "waived" your obligations), and far before that for nearly all of you. You did all the work in proving that violation yourselves, with an explicit, textual admission. Just when I do not think you could dig your hole deeper, you do it yet again. Shareholders would, further, likely think quite differently of you if they had the whole story, that not one of you were in compliance with those "requirements" well before you "waived" them for your personal convenience (very few non-institutional investors know what a Form 4 is, let alone how to read one, and you all are preying on that).
2. You do not disclose in the Proxy Filing that numerous types of shareholder proposals were precluded from being included as a result of the injunctive order against your entire dissident shareholder base (you made it clear you would have served any shareholder with that order if they attempted to include a proposal, such as dismissing all directors for cause, to replace them at the shareholder meeting, with your reliance on Exhibit A, § 6). You, further, do not even disclose the injunctive order itself, that it even exists, and its possible effects on the outcome of any election being had.
3. You state on page 23 of the Proxy Filing that "as provided in its charter, the Governance and Compliance Committee will consider nominations submitted by shareholders". Are you joking? You made it very clear you would not be accepting any proposals of nominations by any shareholder in the injunctive order (see Exhibit A, § 1(e), prohibiting "any action seeking to remove, replace, nominate, appoint, elect or interfere with the election of any directors or officers of any Debtor"), and would (with your injunctive order) hold shareholders in actual contempt of court if they submit nominations. You, therefore, admit guilt in breaching our corporate charter.
4. On page 26 of the Proxy Filing, you state that "the Mallinckrodt Guide to Business Conduct prohibits any employee from retaliating against anyone for raising or helping to resolve an integrity question". Again, are you joking? You literally sued BHG for raising integrity questions, that you not only did not resolve, but refused to (and still refuse) to answer. Not only did you sue BHG, but you labeled us an "adversary" for raising such issues/questions, when you are our elected fiduciaries that are legally obligated to report to us. You do not disclose in the Proxy Filing that you breached your "Guide to Business Conduct" by suing those raising integrity questions. Now, we are raising a major concern of integrity of this election (the ultimate pillar of the integrity of a democracy), yet - let me guess - you will retaliate again, in total violation of the "Guide to Business Conduct" you cited in the proxy statement? I am not voting against your directors because I am not allowed to (no matter how illegal it is to bar me from doing so, under Irish law), but I can speak up that this election cannot be falsely certified as legitimate, as it is not.
5. On page 66 of the Proxy Filing, the Company states that "we are not aware of any reason why any of the nominees will not be able to serve if elected". Do I need to ask, again, are you joking? Perhaps, they will not be able to serve, because you are attempting to run an inherently rigged, and therefore invalid, election. Further, maybe they will not be able to serve because they will be disqualified as a result of oppressing their entire minority shareholder base in complete violation of the Act, § 212 (prohibiting "powers of the directors … being exercised in a manner oppressive to … any of the members)? And there are numerous other reasons. But, guess what… you do not disclose them.
This letter will be filed with the High Court of Ireland as evidence when the company opens a case there to attempt entering the Irish examinership process and/or approval of their completely invalid and illegal "scheme of arrangement".
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
New York Headquarters | Mr. Alexander E. Parker | ||
1185 Avenue of the Americas, Floor 3 | Senior Managing Director | ||
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com | ||
T. +1 (212) 951-1530 | |||
F. +1 (212) 951-1530 |
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
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ian_drennan@odce.ie;
June 1, 2021
Mr. Mark Casey, Chief Legal Officer | Mr. Angus Russell, Chairman |
Board of Directors - All Members | Mr. Mark Trudeau, Director |
Mallinckrodt Plc. | Mr. David Carlucci, Director |
53 Frontage Road, Shelbourne Building | Mr. J. Martin Carroll, Director |
Hampton, NJ 08827 | Mr. Paul R. Carter, Director |
Mr. David Norton, Director | |
Ms. Anne C. Whitaker, Director | |
Ms. Joann Reed, Director | |
Mr. Kneeland Youngblood, Director | |
Mr. Carlos V. Paya, M.D., Ph. D., Director | |
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
16 Parnell Square | Ms. Xana McCarthy, Investigator |
Dublin 1 | Ms. Suzanne Gunne, Enforcement Lawyer |
D01 W5C2, Ireland | Mr. Ian Drennan, Director of Corporate Enforcement |
Re: Mallinckrodt Plc. Reorganization - Notice of Shareholder Oppression in Violation of Companies Act of 2014, § 212
Mr. Casey, and Ladies and Gentlemen of the Board:
The Buxton Helmsley Group Inc. (the "Firm") is in receipt of your May 25, 2021 letter. That letter is enclosed herein, for reference by the Office of the Director of Corporate Enforcement, so it may be added to their growing case file on Mallinckrodt Plc. (the "Company"). On behalf of the Firm, we find it outrageous, your "disagreement" with no basis or explanation (beyond hollow). You have an obligation as a fiduciary to justify your actions to your stakeholders, even if you abhor them. When you have no explanation for your actions, you do all the work in proving your intentions are/were not honorable. Regarding your disagreement and parallel lack of explanation, we remind you of your obligations under the Companies Act of 2014 ("CA14"), for which the Company consented to and is duly bound as an entity incorporated in Ireland. It is not your prerogative to take the tax breaks and disregard the rest of the regulations you are not particularly fond of at the moment.
Let me also make something very, very clear. This Company chose, by its own free will and gumption, to incorporate in Ireland, with no external pressures/threats to do so. That is consent. With regards to my "consent" you referred to in your enclosed letter, it is not consent when I am threatened and coerced by the Company to "consent" to an illegal action being attempted on me by the Company. When you tell your stakeholders that you will drag out malicious, groundless litigation against them if they do not agree to "consent" to a specific, illegal action being attempted on them (through coercion), that is not "consent". Your framing of my "consent" could not be more misleading. When someone demands a man turn over his wallet in a street-side robbery, his "consenting" to turn over his wallet under coercion does not make the robbery legal because they "consented" to the crime. I was told not to be misleading or make false statements in my injunctive order, so let us not be hypocritical here. Just because you got an injunctive order (statutorily prohibited in your country of incorporation) through a foreign court that is clearly unaware of Irish law, in no way does that make the action legal. I will add that Buxton's clients and the rest of the shareholder base (for as broad as you wished to restrain/oppress your stakeholders through the wording of your injunctive order) did not in any way "consent". Your order was also in complete violation of the basic United States constitutional right to a fair trial and opportunity to defend one's actions - you cannot simply serve my legal order on another completely different individual/entity without them being given a fair trial (and formal notice of an injunctive order that they are to abide by). Your order was illegal in absolutely every aspect. This Company's ill-intentioned use of a foreign court to push through a "scheme" and legal orders that you know would not be allowed in your country of incorporation (and use of the automatic stay to prevent them from seeking intervention from Ireland) is very telling of this Company's intentions and ethical standards. Also, there was not one action said to be taken in my letter. I, in fact, explicitly said I would not take any action during United States proceedings, abiding by the injunctive order crammed down my throat, "consented" to after the Company's threats of what they would do if I did not essentially surrender.
This Board and management are on firm notice of their ongoing violation of CA14, § 212 (coercion/oppression of your stakeholders), in an attempt to perpetuate your prejudicial "scheme" (prejudicial to both shareholders and creditors, cherry-picking those you wish to pay out, with prejudice existing even in the bounds of same inherent classes of creditors). Your "scheme" will have had acceptance clearly "obtained by improper means" (CA14, § 543(1)(b)) once you get to the High Court of Ireland (already has crossed into that territory, incurably). This Board and management's current plans, and the process by which they are attempting to bring them forth as a proposed "scheme of arrangement", already violates four out of five of the criteria requirements set forth by Mr. Justice Kelly in Re Colonia Insurance (Ireland) Ltd [2005] 1 IR 497 (also recently referenced in Re Ballantyne Re plc. [2019], with one criterion disqualifying all plans resulting from stakeholder "coercion").
You have a completely unconfirmable plan, both in form and by process, and - again - you are on firm notice of it, continuing in full awareness.
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
Page 2 of 2
New York Headquarters | Mr. Alexander E. Parker | ||
1185 Avenue of the Americas, Floor 3 | Senior Managing Director | ||
New York, N.Y. 10036 | E. alexander.parker@buxtonhelmsley.com | ||
T. +1 (212) 951-1530 | |||
F. +1 (212) 951-1530 |
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
board.directors@mnk.com; info@odce.ie; marian_lynch@odce.ie; xana_mccarthy@odce.ie; suzanne_gunne@odce.ie;
ian_drennan@odce.ie;
May 20, 2021
Board of Directors - All Members | Mr. Angus Russell, Chairman |
Mallinckrodt Plc. | Mr. Mark Trudeau, Director |
675 McDonnell Blvd. | Mr. David Carlucci, Director |
St. Louis, MO 63042 | Mr. J. Martin Carroll, Director |
United States of America | Mr. Paul R. Carter, Director |
Mr. David Norton, Director | |
Mr. Carlos V. Paya, M.D., Ph. D., Director | |
Ms. Joann Reed, Director | |
Ms. Anne C. Whitaker, Director | |
Office of the Director of Corporate Enforcement | Ms. Marian Lynch |
Government of Ireland | Ms. Xana McCarthy, Investigator |
16 Parnell Square | Ms. Suzanne Gunne, Enforcement Lawyer |
Dublin 1 |
Mr. Ian Drennan, Director of Corporate Enforcement |
D01 W5C2 | |
Ireland |
Re: Mallinckrodt Plc. Reorganization - Notice of Shareholder Oppression in Violation of Companies Act of 2014, § 212
Ladies and Gentlemen:
The Buxton Helmsley Group, Inc. ("Buxton") is a registered investment adviser. As you are aware through our last 13-D filing with the U.S. Securities and Exchange Commission (the "Commission"), Buxton and a group of like-minded investors retain a 5.6% interest in Mallinckrodt plc (the "Company").
The reason why this letter is being addressed to you all, the Board of Directors (the "Board"), is to further document your continued, willful (and now, with your injunctive restrictions that strip Buxton's shareholder rights, additional) violations of Irish law and breaches of fiduciary duty. If, somehow, you want to claim that you do not know what you are doing (and that it is both illegal and in breach of your duties), we are going to make everything crystal clear in this letter for you. This will also ensure that those insurers behind your director and officer liability policies will not pay out if you should later seek to obtain coverage from those policies - you have not an ounce of plausible deniability towards your actions after this letter. Even if you attempt to include a release of liability in your disclosure statement as part of the United States reorganization proceedings, such a release is not enforceable without sign off from the High Court of Ireland (with respect to Ireland-incorporated entities of the debtors), and there is also no such thing as a liability release from illegal acts. Lest you think it is just Buxton who has identified all your illegal acts and breaches of duty, might I remind you to refer to the laundry list of (recently filed) objections to your initial proposed disclosure statement, where Buxton even so much agreed with even creditors' opinions of your acts that we objected in the form of a joinder to theirs. You can also refer to other items such as docket number 2234 (one of numerous examples), where even creditors are advocating for (as a result of such apparent gross breaches to) equity holders, when they have no economic incentive nor obligation to. All of your stakeholders are looking out for each other, and we clearly do not say the same about the Board's upholding of their (intended to be) disinterested duties to us. You have had endless chances to avoid personal claims/suits and have only dug your hole of personal liability exposure deeper and deeper, voluntarily:
"The Reporting Persons reserve the right, consistent with applicable law, to (i) acquire additional Shares and/or other equity, debt, notes, instruments or other securities (collectively, "Securities") of the Issuer (or its affiliates) in the open market or otherwise; (ii) dispose of any or all of their Securities in the open market or otherwise; and (iii) engage in any hedging or similar transactions with respect to the Securities. The Reporting Persons may engage in discussions with management or the Board of Directors of the Issuer concerning the business, operations, management, and future plans of the Issuer. Depending on various factors, including the Reporting Persons' financial position and investment strategy, the price of the Shares, conditions in the securities markets, and general economic and industry conditions, the Reporting Persons may in the future take such actions they deem appropriate, including, without limitation, seeking Board representation, submitting shareholder proposals, calling for a special shareholder meeting, or calling for changes in the board of directors or management of the Issuer."
Directly from the Companies Act of 2014, § 212:
212. (1) Any member of a company who complains that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised-
(a) in a manner oppressive to him or her or any of the members (including himself or herself), or
(b) in disregard of his or her or their interests as members,
May apply to the court for an order under this section.
Let me ask you: Do you think that your stripping Buxton and the entire 13-D group of its rights to call an Extraordinary General Meeting, submit shareholder proposals, etc., are "the powers of the directors of the Company being exercised in a manner oppressive to … the members"? How much do you think you are regarding your members' interests when you force a muzzle on them? I think you can conclude the same answer as the High Court of Ireland will.
You are now also aware, through this letter, that the "scheme of arrangement" you are attempting to put forth in the High Court of Ireland will have then been "obtained by improper means" (Companies Act of 2014, § 543(1)(b)), given your known ongoing violation of Section 212 of the Act, among others, as you continue soliciting acceptance of your proposed "scheme of arrangement" by other interested parties, in the midst of complete prejudice to and illegal oppression of shareholders (also in violation of Companies Act of 2014, § 541(4)(b)). You, again, have not an ounce of plausible deniability, after this letter, as to your acts in complete defiance of Irish law. I will also add that the High Court of Ireland will almost surely agree that this Board should be personally on the hook for any monetary damages to Buxton (and this entire shareholder base, for as broad as your injunctive order was attempted to be) as a result of the Section 212 violations that this Board has clearly condoned (continuing to sit through, in silence).
A Board typically would have an irrefutably sound rationale that there is no logical reason/standing to replace them, since a Board typically has a demonstrated interest aligned with equity holders (because they are equity holders themselves). And you would have been able to rely on that sound rationale; that is, if you had been in compliance with our compensation plan rules surrounding ongoing equity retention requirements. You, our Board, and our management, collectively own less than 0.03% of the Company at present. That very clearly demonstrates you could not have been (and could not be) less aligned with the interests of your shareholders. Then, as if you are entitled to further depart from the interests of your shareholders, you sell off most every share of the paltry stock you did own, and wonder why we have sought better representation? And this is after you "pillaged the pot" of hard assets (cash) for yourselves prior to declaring it "short" to equity holders and everyone else at the table... Your clear benefit at this point would be maximizing post-reorganization equity value, in hopes that you will get a slice of it as part of the post-reorganization insider equity pool/allocation. That is the exact reason you do not belong in your positions - you are not aligned with our interests. You have a clear economic interest and benefit to default to equity being "worthlessness", just as you have, with no open market auction having been had to prove that hypothesis (surprise, surprise). But a recapitalization by a third-party bidder would have possibly meant that directors and certain executives may no longer be getting their paychecks, bonuses, and, if they are lucky enough to remain as post-reorganization insiders, an outsized post-reorganization equity allocation, if their positions are no longer required. You did not want to test your hypothesis of equity (and asset) value "worthlessness" (through an open market auction), where creditors might not be impaired at all, just because you might risk losing out on such a gravy train of benefits. You took the track that best assured your future and optimal assurance of such a lion's share of benefits, over the wellbeing of the stakeholders whom you have a fiduciary duty to. While post-reorganization position retention is not guaranteed, the route you have chosen is clearly your best chance of retaining your positions. You would not experience one ounce of an economic benefit from fighting our headwinds like a vested stakeholder would throughout these Chapter 11 proceedings, so why would you? You have only every interest to capriciously settle those claims and race through this Chapter 11 case to get to the hopeful gravy train. It will not harm you one bit. Very simply, if you had a demonstrated, aligned interest with shareholders, we would never seek to remove you, nor would we have logical standing to. Only because you have demonstrated the exact opposite of an aligned interest with your stakeholders, have we sought to remove you. First, you ignore the letters we sent you requesting a telephonic conference with the Board, then you sue us for requesting it, to strip us of our rights and turn this Company into a self-imposed oligarchy thereafter, in complete violation of Section 212 of the Act. When you disregard the interest of shareholders (and certain creditors), that is - again - called prejudicial treatment, which is - again (I do not know how many times I must repeat myself) - a violation of Section 541 of the Act, which statutorily would therefore preclude the implementation of your "scheme".
While Buxton had no apparent choice but to accept the muzzle (injunction) you forced upon minority shareholders as the Board of this company, given the bankruptcy court's priority to push through a reorganization attempt without regard to the violations of Irish law and sheer lack of ethics that are taking place as part of that reorganization, over holding a board and management accountable for such massive breaches of their fiduciary duty and violations of Irish law, this is far from the end of our pushback. While I will abide by my gag order (as illegal as it was for you to institute) not to call a shareholder meeting, conduct a proxy contest, or anything else you all have muzzled Buxton from doing during the U.S. reorganization proceedings, it is inherently part of the process of approving a scheme of arrangement in Ireland that Buxton will have the opportunity to air out all of your violations, breaches (of both duty and law), and prejudicial treatment of stakeholders (shareholders and creditors) during those hearings in Ireland. I will also note that we have had extensive communication with the Office of the Director of Corporate Enforcement in Ireland, for which has been made imminently aware of your numerous, willful violations of Irish law. And after this letter, you will have further proven (to them, and the High Court of Ireland, during hearings on this "scheme") that it was your sheer intent to continue the illegal behavior (which, also would be grounds for possible disqualification/restriction as directors, under Section 819 of the Act). Your behavior has been not only irresponsible and immoral, but in violation of Irish law.
While you, the Board (ultimately responsible for the actions of the management of the Company for which you are responsible for overseeing), alleged violations of securities laws, you did so with an inability to cite a private cause of action for each:
In summary, the difference between the Company and I, is that even if I may have possibly mis-stepped on accident, I correct course when I am informed of even possible missteps. You all, on the other hand, are informed over and over of your numerous, then willful missteps and illegal actions, and continue that course of illegal action. To date, you have not backed up one of your allegations against Buxton. You ask for support of everything I have publicly proclaimed of you all (violating our corporate governance rules, being "corrupt", "self-serving", perpetrating something "similar to the unfolding a Ponzi scheme", and otherwise), which I have provided, and you have not been able to refute. You claim my statements are misleading, merely because my opinions do not match your own and you do not like the facts. In fact, you asked the court to strike all factual statements of mine from the record during my 45-minute testimony of your endless violations of Irish law and fiduciary duty, for which I do not blame you for; that information was far from becoming of you all. You have not been able to debunk one factual statement of mine as being false. Even more notable, while you attempt to injunct me from making false statements, your legal counsel made false statements about matters as basic as whether or not the Company is listed on the Frankfurt Stock Exchange under ticker "MCD" (just after my citation of that fact, the Company's legal counsel followed with claiming that the Company is not traded on any regulated European Union member state securities exchange). If you want to confirm that fact of false statements by the Company, you can read the transcript of the hearing - I am not wasting my time to find it. And I am the misleading one?
Before I list the numerous other violations of the Companies Act of 2014: Since the Company questioned why (in the lawsuit against my firm), I am going to explain exactly why I compared the actions of our Board and management to the final days of Bernard Madoff's Ponzi scheme. On the eve of Madoff admitting to his sons that he was running the largest Ponzi scheme in the world, he - at the same time - told them that he was paying out millions upon millions in "bonuses" to his most important employees, and millions in returned investments to preferred investors, just prior to telling all his other investors that he had nothing left for them. With Mallinckrodt, just weeks before our Board and executives notified stakeholders at their table that there was no money left for them, and that the Company was supposedly insolvent, that same Board and executives paid out millions in cash "bonuses" to themselves. I, again, refute the legitimacy that claim of insolvency by executives, given their admission (during equity committee hearings) of marking assets to zero value consideration and having extrapolated "liabilities" into the "trillions", despite having just months before stated that they had no liability in our litigation headings. Sound familiar? What a parallel! And even worse, you claim you still do not have any money for those investors still holding an empty bag, yet you think it is ethical to take another ~$35 million in cash "bonuses" while you still show those investors (obviously, not your favorite ones) to their empty bag? And then, you have the audacity to then claim that you deserve to reorganize your "scheme", and award post-reorganization insiders a 10% equity allocation. This board and management's "pillaging of the pot" before declaring it "short" to stakeholders, could not be more of a stark parallel of Madoff's final days attempting to divvy up millions to his pals before pulling the rug out from under everyone else he had a fiduciary duty to. You distributed "bonuses" equivalent to 1.5x the annual salary of top executives (just weeks before Chapter 11 petition filing) to ensure ample personal financial resources throughout the restructuring process, so why - just months later - do they need multiples of those salaries, yet again, in another round of "bonuses", while those they have a fiduciary duty to are still without a penny? Was that in the best interests of lining the executives' pockets with millions more for of-the-moment crystal-cupped martinis, to open their pools for the summer, and other unnecessary, discretionary luxuries, or in the best interest of those whom you have a fiduciary duty to, many of whom you still are claiming you do not have a penny for? This last minute "pillaging of the pot", as you are readying to declare insolvency to everyone else at the table (and continuing such pillaging throughout "insolvency"), is illegal under Irish law (see Irish High Court case of Winning Ways Ltd., where insiders were held personally liable for their preferential payments). Not only immoral, but illegal.
In terms of why I have accused you all of "capriciously settling litigation": When our legal woes you cite as a basis for "hopeless" insolvency, are only in the United States, and are not - by default (given, no bilateral treaty surrounding reciprocal legal judgment recognition between the United States and Ireland) - enforceable against any Irish entity, you have no basis to bankrupt the entire company or claim insolvency in entirety (proven by the Company's inability to defend why you are bankrupting the entire Company during the equity committee hearings).
In case you are not aware of the full laundry list of breaches of fiduciary duty, violations of corporate governance rules, and violations of Irish law (filing for reorganization in the U.S. does not exempt you from your country of incorporation's laws), I will remind you of them:
1. In violation of Section 212(1)(a) of the Act, prohibiting shareholder oppression, a restraining/injunction order against Buxton, to prevent Buxton and its associated shareholders (in the 13-D filing) from calling an Extraordinary General Meeting under Section 178, 1099 and 1101 of the Act, among other injunctive restrictions stripping those minority shareholders of their democratic rights.
2. In violation of Section 212(1)(b) of the Act, the same restraining/injunction order against Buxton (and its associated minority shareholders). Also, the Company's express statement (and your silence, after that statement is made) during equity committee hearings, that the Company conducted no open market auction of existing equity interests and many assets, defaulting to a value consideration of "worthlessness", with no proof and no regard to the interests of multiple classes of stakeholders in the capital structure being impaired, including shareholders.
3. In further violation of Section 212(1)(b) of the Act, your injunction prohibits Buxton (and any even possibly associated shareholders) from submitting shareholder proposals surrounding the nomination, reelection, or dismissal of directors at the upcoming August 13, 2021 Annual General Meeting, in complete disregard and oppression of our interests as minority shareholders and members of this Company. Shareholder proposals for the upcoming AGM are due in less than two days, yet your legal counsel has precluded us from submitting any shareholder proposals, in complete violation of Section 212 of the Act, and you, our Board, allows them to continue violating that statute. Interesting…
4. You, our Board (along with our officers), "pillaged the pot" before declaring it "short" to shareholders and creditors, taking extra hard assets (cash) from the Company, in lieu of equity grants, leading up to your declaration of supposed insolvency, because of the "uncertainty" (exact word from your compensation-related filings) at hand as a result of our litigation headwinds (i.e., you wondered if equity would be worth anything, so you thought you would take some hard assets for yourselves before you tell every other stakeholder that there is no money left for them). The Company had a "going concern" opinion at the time, making it even more illegal for you to do so; not only did you question the solvency of the Company, but so did our auditors. While I am sure you can conclude that is unethical on your own, you can - again - also refer to the Irish High Court ruling of Winning Ways Ltd. (where the directors assumed personal liability, as a result of such "pillaging the pot" by the directors and fiduciaries).
5. As I already mentioned before, not one executive officer or director was compliant with their ongoing equity retention requirements (a "requirement", and not a guideline) at the time of filing for Chapter 11 reorganization (and far, far before that), explaining why there were numerous routes of extremely basic strategic alternative resolutions being neglected. If you held the proper amount of stock at the time of Chapter 11 filing, you would be very receptive to possible ideas of preserving equity value, but you are not because your destruction of equity value with neglect to numerous paths of possible value preservation, does not harm you one bit. I can guarantee you can come up with some excuse for violating those requirements, but I can also guarantee that there is not one shareholder at the table who would not agree that any such excuse could not ring hollower. No matter the excuse, I can further guarantee you that your shareholders would oust you if they had the chance to, due to that violation alone. But we cannot, can we, due to your violation of Section 212 of the Act, too. It is all too easy to see the trend of violations here, only in the interests of protecting/benefiting our fiduciaries, is it not?
6. Not holding an open market auction for assets, which you are attempting to self-deal to an entity for which post-reorganization insiders will receive an equity allocation of. It makes no difference if the post-reorganization insiders are the same insiders as those at present - it is insiders dealing to insiders, plain and simple. That is a clear conflict of interest. Even if you gave consideration of hundreds of millions to those assets, until you hold an open market auction for those assets, as ruled to be required in the mid-2020 Irish High Court ruling of Systems Building Services Group Limited, that is not enough. You are required (yes, required) to hold an open market auction of those assets, for which you did not. I, for one, would make a starting bid of $10 for those assets, so your opinion of "worthlessness" is singlehandedly proven false, right there. And no one knows how high the bids would go. And that is the very reason why you are obliged to follow the law and hold open-market auctions for assets (and therefore, by inexplicable relativity, equity). Why do you not leave those "worthless" assets like the drug pipeline for existing shareholders, if they are so "worthless"? When you take something without paying for it, that is called "stealing". A white collar does not alleviate you from the label of such an act. But when that "worthless" asset group includes drugs like StrataGraft®, set to yield $250+ million per year (with only a site visit pending before approval of the drug, to our knowledge), I can see why you would want to convey such "worthless" assets to a reorganized entity that then-insiders will receive a 10% equity allocation of. How shockingly convenient…
7. Extinguishing equity (claiming it is "worthless") with no bidding process having been had (again, refer to the Irish High Court case of Systems Building Services Group Limited). By inexplicable relativity to assets being ruled to be required to hold an open market auction for to prevent any possible consideration undervaluing as part of reorganization, you would inherently be required to also hold open market auctions for equity, given that a recapitalization of the Company by a third-party could possibly result in higher value consideration to existing stakeholders than any possible proposed reorganization plan. While assets could be understated, liabilities could, contrarily, be conveniently overstated (to deplete apparent equity, just as numerous stakeholders would agree was the attempt here) for the benefit of those set to receive equity, like post-reorganization insiders. That is why an open market auction for equity is inexplicably in the best interest of ensuring maximum value (and the best outcome) for all stakeholders. And again, if you were a vested stakeholder, you would be open to this idea of an open market auction for equity. The only reason you do not care about defaulting to "worthlessness" and not realizing maximum value for assets and equity, is because it does not economically benefit or harm you to make that decision, and a recapitalization may - again - not be in the interest of your position retention. Your interests are not aligned with the stakeholders to whom you have a fiduciary duty to, plain and simple. I will add, that it would be starkly inappropriate, for any supposed open market auction of assets (or equity) to be held, until your oligarchic regime is defunct and democratic processes well resume their course.
Need I go on? Whether it crosses from immoral to illegal or not, you all should be ashamed of your acts, and I think you and I both know how you will fare when the Irish High Court is made aware of your "scheme". You could not have illustrated your intentions and self-serving interests more blatantly. The U.S. Bankruptcy Court went along with your "song and dance" of "hopeless insolvency" (for the record, agreeing with it), but of course you are insolvent when you engage in fraudulent accounting, marking assets to "worthless" value consideration (when you have no proof of such "worthlessness" and have held no open market auctions to prove out value, as required by Irish law, so you can self-deal those assets to an entity for which post-reorganization insiders will be allocated an equity interest in), while also extrapolating your "liabilities" into the trillions through mere non-factual, speculation, when those "liabilities" are not even automatically enforceable through a reciprocal judgment agreement (if you had actually had a judgment, which you do not) against the entities which you are bankrupting (as you, out the other side of your mouth, have numerous times stated that you vehemently denied any liability in the opioid or Acthar litigation at all). That sentence was long, was it not? But that is just how convoluted your "scheme" is. Your intentions could not be clearer. And again, you, the Company, try to claim I am misleading? Give me a break. Were you lying when you said you had no liability in the outstanding litigation, or are you lying now when you say liability in that litigation is in the "trillions" of dollars (when you decide you want to capriciously throw in the towel at the expense of your shareholders and bondholders, to secure a big, fat equity allocation for those who may be lucky enough to remain as post-reorganization insiders)? You cannot even keep a story straight, and now you want to blame me for believing the story that actually had some factual support behind it and is not a mere wad of convenient speculation. You may be able to attempt a reorganization out of convenience in the United States, but Ireland does not allow reorganization without proven (not speculated) insolvency, which you have far from done here, and in fact stated the opposite many times before.
So, while I am not telling you to stop what you are doing, if you continue, you are doing so while you are blatantly aware what you are doing is in direct violation of Irish law. You are illustrating to the rest of directors of public companies around the world of what not to do, and how not to uphold fiduciary duties.
Very Truly Yours,
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.
VIA REGISTERED U.S. POSTAL MAIL AND ELECTRONIC MAIL
board.directors@mnk.com; investor.relations@mnk.com;
March 10, 2021
Board of Directors – All Members
Mallinckrodt Plc.
675 McDonnell Blvd.
St. Louis, MO 63042
United States of America
Re: Mallinckrodt Plc. Shareholder Action – Immediate Response Demanded and Required
Ladies and Gentlemen:
The Buxton Helmsley Group, Inc. (“Buxton”) is a registered investment adviser. As you are now aware, Buxton and a group of like-minded investors have acquired a 5.6% interest in Mallinckrodt plc (the “Company”).
The Board of Directors have thus far ignored the Company's shareholders and acted in complete disregard of the owners of the Company and the duties it owes to them. We can no longer sit idle while this Board recklessly pursues the complete destruction of shareholder value. The Board's failures are almost too numerous to mention, but to name a few:
· | Pursuing reorganization plans that ignore the intrinsic value of the Company and rob the shareholders at any chance of realizing value; |
· | Failing to explore a meaningful bidding process or strategic alternatives that would have preserved the value of the Company and its products; |
· | Undervaluing drugs in the pipeline; |
· | Self-dealing; |
· | Failure to comply with ownership requirements for the Board and management; |
· | Capriciously settling litigation for the convenience of the Board and its management without regard to the impact on the owners of the Company. |
Despite the Company's present condition, we firmly believe that there is much to be gained from a successful and rapid transition in strategy and leadership.
We demand that the Board of Directors contact me at once to discuss our proposals for righting these wrongs. We expect the Board to be mindful of its duties and to take our proposals seriously.
Ultimately, shareholders like us have means to effect changes necessary to protect our investment. We are prepared to take any legally permissible action to hold this Board and management accountable for their many failures and betrayals.
I look forward to hearing from you as soon as possible, holding a telephonic conference (with all directors present) no later than 4:00 pm Eastern Standard Time on Friday, March 12, 2021.
Most Sincerely,
/s/ Alexander Parker
Alexander Parker
Senior Managing Director
The Buxton Helmsley Group, Inc.