According to the docket dated May 1, 1998, on March 31, 1997, the Court entered the Order by U.S. District Judge S. Jenkins dismissing plaintiff’s first and second claims for relief with prejudice and dismissing plaintiff’s third, fourth, fifth, and sixth claims for relief without prejudice. The plaintiffs soon after filed a Notice of Appeal. On May 1, 1998, the Court entered the certified copy of the mandate from the Tenth Circuit Court of Appeals affirming the judgment of the District Court.
The complaint charges Defendants Novell and certain of its officers and directors with violations of Sections 11(a) and 17(a) of the Securities Act, Sections 10 and 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, and well-established principles of common law, including breach of fiduciary responsibility and misrepresentation.
Specifically, the complaint alleges defendants made a series of misrepresentations in the proxy statement and the accompanying proxy materials that were false and misleading and/or omitted to state material facts. The manner of solicitation of proxies from the Company's shareholders through the use of the proxy materials and the annual report, and the presentation and omission of information therein violated Section 14(a) and Rules 14a-3, 14a-5, and 14a-9 thereunder in that: a. The proxy statement, and most particularly the annual report, were not mailed to the Company's shareholders sufficiently in advance of the shareholder's meeting to enable the shareholders to read and understand the information presented; b. The proxy material did not accurately reflect the condition of the Company at the time the proxy statement was issued, and was not properly updated to reflect intervening events that substantially affected the material set forth in the proxy statement and the annual report; and c. The proxy did not provide meaningful disclosure and was not conducive to informed decision making by the Company's shareholders, in that many of the material facts were not adequately disclosed or were buried in the statements in the annual report so as to make it difficult for the Plaintiff and the class to become aware of those material facts.