0001193125-15-074751.txt : 20150303 0001193125-15-074751.hdr.sgml : 20150303 20150303131535 ACCESSION NUMBER: 0001193125-15-074751 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20150303 DATE AS OF CHANGE: 20150303 GROUP MEMBERS: HIKARU SHIMURA GROUP MEMBERS: YOICHI TSUCHIYA GROUP MEMBERS: YOSHITAKA KITAO SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ACUCELA INC. CENTRAL INDEX KEY: 0001400482 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 020592619 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-88011 FILM NUMBER: 15668035 BUSINESS ADDRESS: STREET 1: 1301 SECOND AVE. STREET 2: SUITE 4200 CITY: SEATTLE STATE: WA ZIP: 98101 BUSINESS PHONE: 206-805-8300 MAIL ADDRESS: STREET 1: 1301 SECOND AVE. STREET 2: SUITE 4200 CITY: SEATTLE STATE: WA ZIP: 98101 FORMER COMPANY: FORMER CONFORMED NAME: Acucela Inc DATE OF NAME CHANGE: 20070523 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KUBOTA RYO CENTRAL INDEX KEY: 0001598575 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O ACUCELA, INC. STREET 2: 1301 SECOND AVE., SUITE 1900 CITY: SEATTLE STATE: WA ZIP: 98101 SC 13D/A 1 d883055dsc13da.htm SC 13D/A SC 13D/A

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 2 )*

 

 

Acucela Inc.

(Name of Issuer)

Common Stock, no par value

(Title of Class of Securities)

00510T 109

(CUSIP Number of Class of Securities)

Andrew J. Bond

Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200

Seattle, WA 98101-3045

(206) 622-3150

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

March 2, 2015

(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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 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 Rule 13d-7 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).

 

 

 


SCHEDULE 13D
CUSIP No. 00510T 109

 

  1 

Names of Reporting Persons

 

Ryo Kubota

  2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3

SEC Use Only

 

  4

Source of Funds

 

(Not Applicable)

  5

Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)  ¨

 

  6

Citizenship or Place of Organization

 

Japan

NUMBER OF

SHARES

 BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH:

 

   7  

Sole Voting Power

 

10,250,654 (1)

   8  

Shared Voting Power

 

7,752,425 (2)

   9  

Sole Dispositive Power

 

10,250,654 (1)

 10  

Shared Dispositive Power

 

-0-

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

18,003,079 (1)(2)

12

Check if the Aggregate Amount in Row (11) Excludes Certain Shares  x (3)

 

13

Percent of Class Represented by Amount in Row (11)

 

50.3% (4)

14

Type of Reporting Person

 

IN

 

(1) Includes 10,000 shares of the Issuer’s common stock issuable upon exercise of options that are exercisable within 60 days of the date of this Schedule 13D.
(2) On January 28, 2015, Dr. Ryo Kubota entered into a Voting Agreement and Irrevocable Proxy (the “Voting Agreement and Proxy”) with SBI Holdings, Inc.(“SBI”) and various subsidiaries of SBI (collectively with SBI, the “SBI Entities”), who beneficially own 7,752,425 shares of the Issuer’s common stock. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Dr. Kubota that he has beneficial ownership over any of the 7,752,425 shares of the Issuer’s common stock beneficially held by the SBI Entities for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(3) On February 20, 2015, Dr. Kubota entered into voting agreements with each of Hikaru Shimura, Yoichi Tsuchiya and Yoshitaka Kitao (each a “Voting Agreement” and collectively, the “Voting Agreements”), and as consequence Dr. Kubota may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151, 515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Dr. Kubota that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Kitao, Mr. Shimura or Mr. Tsuchiya for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(4) Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the Securities and Exchange Commission (the “SEC”) on November 14, 2014.


SCHEDULE 13D
CUSIP No. 00510T 109

 

  1 

Names of Reporting Persons

 

Hikaru Shimura

  2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3

SEC Use Only

 

  4

Source of Funds

 

(Not Applicable)

  5

Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)  ¨

 

  6

Citizenship or Place of Organization

 

Japan

NUMBER OF

SHARES

 BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH:

 

   7  

Sole Voting Power

 

151,515

   8  

Shared Voting Power

 

-0-

   9  

Sole Dispositive Power

 

151,515

 10  

Shared Dispositive Power

 

-0-

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

151,515

12

Check if the Aggregate Amount in Row (11) Excludes Certain Shares  x (1)

 

13

Percent of Class Represented by Amount in Row (11)

 

0.4% (2)

14

Type of Reporting Person

 

IN

 

(1) As consequence of entering a Voting Agreement with Dr. Kubota, Mr. Shimura may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151, 515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Mr. Shimura that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Kitao, Dr. Kubota or Mr. Tsuchiya for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(2) Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014.


SCHEDULE 13D
CUSIP No. 00510T 109

 

  1 

Names of Reporting Persons

 

Yoshitaka Kitao

  2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3

SEC Use Only

 

  4

Source of Funds

 

(Not Applicable)

  5

Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)  ¨

 

  6

Citizenship or Place of Organization

 

Japan

NUMBER OF

SHARES

 BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH:

 

   7  

Sole Voting Power

 

204,800

   8  

Shared Voting Power

 

-0-

   9  

Sole Dispositive Power

 

204,800

 10  

Shared Dispositive Power

 

-0-

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

204,800

12

Check if the Aggregate Amount in Row (11) Excludes Certain Shares  x (1)

 

13

Percent of Class Represented by Amount in Row (11)

 

0.6% (2)

14

Type of Reporting Person

 

IN

 

(1) As consequence of entering a Voting Agreement with Dr. Kubota, Mr. Kitao may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151,515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Mr. Kitao that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Shimura, Dr. Kubota or Mr. Tsuchiya for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(2) Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014.


SCHEDULE 13D
CUSIP No. 00510T 109

 

  1 

Names of Reporting Persons

 

Yoichi Tsuchiya

  2

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)  ¨        (b)  x

 

  3

SEC Use Only

 

  4

Source of Funds

 

(Not Applicable)

  5

Check of Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)  ¨

 

  6

Citizenship or Place of Organization

 

Japan

NUMBER OF

SHARES

 BENEFICIALLY  

OWNED BY

EACH

REPORTING

PERSON

WITH:

 

   7  

Sole Voting Power

 

20,000

   8  

Shared Voting Power

 

-0-

   9  

Sole Dispositive Power

 

20,000

 10  

Shared Dispositive Power

 

-0-

11

Aggregate Amount Beneficially Owned by Each Reporting Person

 

20,000

12

Check if the Aggregate Amount in Row (11) Excludes Certain Shares  x (1)

 

13

Percent of Class Represented by Amount in Row (11)

 

0.1% (2)

14

Type of Reporting Person

 

IN

 

(1) As consequence of entering a Voting Agreement with Dr. Kubota, Mr. Tsuchiya may be deemed to be a member of a “group” under Section 13(d) of the Act, which may be deemed to beneficially own the following shares of the Issuer’s common stock: 18,003,079 shares beneficially owned by Dr. Kubota; 151,515 shares beneficially owned by Mr. Shimura; 204,800 shares beneficially owned by Mr. Kitao; and 20,000 shares beneficially owned by Mr. Tsuchiya. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Mr. Tsuchiya that he has beneficial ownership over any of the shares of the Issuer’s common stock beneficially held by either Mr. Shimura, Dr. Kubota or Mr. Kitao for the purposes of Section 13(d) of the Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
(2) Based on 35,804,384 shares of the Issuer’s common stock outstanding as of November 11, 2014 as reported on the Issuer’s Form 10-Q for the quarter ended September 30, 2014, filed with the SEC on November 14, 2014.


EXPLANATORY NOTE

The Statement on Schedule 13D originally filed by Ryo Kubota with the SEC on February 2, 2015, as amended by Amendment No. 1 filed with the SEC jointly by Dr. Kubota, Hikaru Shimura, Yoshitaka Kitao, and Yoichi Tsuchiya on February 24, 2015 (as so amended, the “Statement”), is hereby amended with respect to the items set forth below by this Amendment No. 2 (this “Amendment”).

Capitalized terms used herein and not otherwise defined have the meanings assigned to such terms in the Statement. Except as otherwise provided herein, each item of the Statement remains unchanged.

 

Item 4. Purpose of Transaction

Item 4 of the Statement is hereby amended by adding the following:

As of March 2, 2015, the Issuer failed to call the special shareholders meeting demanded by the SBI Entities in a letter delivered to the Issuer from the SBI Entities on January 28, 2015. Under Washington State law (Revised Code of Washington 23B.07.030), the Issuer was required to give written notice of the special shareholders meeting by February 27, 2015 (i.e. within 30 days after the written demand). As a result, on March 2, 2015, Ryo Kubota and the SBI Entities commenced a lawsuit in which they seek to have the court issue an order directing the Issuer to hold a special meeting on or before April 28, 2015, and to provide its shareholders written notice of that meeting as soon as practicable.

The foregoing description of the lawsuit is not complete and is qualified in its entirety by reference to the full text of the complaint filed by Ryo Kubota and the SBI Entities (the “Complaint”), which is attached as Exhibit 7.7 to this Amendment and is incorporated herein by reference.

 

Item 7. Materials to be Filed as Exhibits

Item 7 of the Statement is hereby amended by the addition of the following exhibit:

 

Exhibit 7.7 Complaint, dated March 2, 2015


SIGNATURE

After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Date: March 3, 2015

 

RYO KUBOTA

/s/ Ryo Kubota

Ryo Kubota
HIKARU SHIMURA

*Hikaru Shimura

Hikaru Shimura
YOSHITAKA KITAO

*Yoshitaka Kitao

Yoshitaka Kitao
YOICHI TSUCHIYA

*Yoichi Tsuchiya

Yoichi Tsuchiya

 

*Ryo Kubota

/s/ Ryo Kubota

By: Ryo Kubota
Attorney-in-Fact


EXHIBIT INDEX

 

Exhibit No.

  

Description

Exhibit 7.7    Complaint, dated March 2, 2015
EX-7.7 2 d883055dex77.htm EX-7.7 EX-7.7

Exhibit 7.7

SUPERIOR COURT OF THE STATE OF WASHINGTON

THURSTON COUNTY

 

SBI HOLDINGS, INC., a Japanese corporation;

SBI CAPITAL MANAGEMENT CO., LTD.;

 

)

)

     
SBI INVESTMENT CO., LTD.; SBI   )        No.   
INCUBATION CO., LTD.; TRANS-SCIENCE   )      
NO. 2A INVESTMENT LIMITED   )        COMPLAINT   

PARTNERSHIP; SBI TRANSSCIENCE CO.,

LTD.; BIOVISION LIFE SCIENCE FUND NO.

1; SBI BB MEDIA INVESTMENT LIMITED

PARTNERSHIP; SBI BIO LIFE SCIENCE

INVESTMENT LPS; SBI BB MOBILE

INVESTMENT LPS; SBI PHOENIX NO. 1

INVESTMENT LPS; SBI BROADBAND

FUND NO. 1 LIMITED PARTNERSHIP; and

DR. RYO KUBOTA, an individual,

 

)

)

)

)

)

)

)

)

)

     

          Plaintiffs,

 

)

)

     

v.

 

)

)

     
ACUCELA INC., a Washington corporation,  

)

)

     

          Defendant.

 

)

)

     

Plaintiffs SBI Holdings, Inc.; SBI Capital Management Co., Ltd.; SBI Investment Co., Ltd.; SBI Incubation Co., Ltd.; Trans-Science No. 2A Investment Limited Partnership; SBI Transscience Co., Ltd.; BIOVISION Life Science Fund No. 1; SBI BB Media Investment Limited Partnership; SBI Bio Life Science Investment LPS; SBI BB Mobile Investment LPS; SBI Phoenix No. 1 Investment LPS; SBI Broadband Fund No. 1 Limited Partnership (collectively, “SBI” or “the SBI entities”) and Dr. Ryo Kubota (“Dr. Kubota”) by and through their undersigned counsel, allege as follows:

 

COMPLAINT - 1        Davis Wright Tremaine LLP
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I.     INTRODUCTION

1. This is an action seeking an order compelling Defendant Acucela Inc. (“Acucela”) to conduct a special shareholders meeting as soon as practicable, but not later than April 28, 2015, and to provide its shareholders written notice of that special meeting as soon as practicable.

2. The SBI entities and Dr. Kubota are Acucela shareholders. On January 28, 2015, SBI made a written demand for a special meeting of Acucela’s shareholders, in compliance with the Amended and Restated Bylaws of Acucela (the “Bylaws”) and with the Washington Business Corporation Act, RCW 23B.07.020. By statute, Acucela was required to give written notice of the special shareholders meeting by February 27, 2015—i.e., within 30 days after the written demand. RCW 23B.07.030.

3. Acucela has failed to give written notice of the special shareholders meeting, even though the 30-day period in which to do so expired on February 27, 2015. Rather, Acucela has made it clear that it does not intend to call a special shareholders meeting at all. Accordingly, the SBI entities and Dr. Kubota bring this action seeking an order from the Court compelling Acucela to hold a special meeting of the shareholders no later than April 28, 2015, as required by Acucela’s Bylaws and the Washington Business Corporation Act.

II.     PARTIES

4. SBI Holdings, Inc. is a Japanese corporation with its principal place of business in Japan. It owns interests in a diverse portfolio of companies involved in financial services, asset management, and biotechnology research.

5. SBI Capital Management Co., Ltd.; SBI Investment Co., Ltd.; SBI Incubation Co., Ltd.; Trans-Science No. 2A Investment Limited Partnership; SBI Transscience Co., Ltd.; BIOVISION Life Science Fund No. 1; SBI BB Media Investment Limited Partnership; SBI Bio

 

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Life Science Investment LPS; SBI BB Mobile Investment LPS; SBI Phoenix No. 1 Investment LPS; and SBI Broadband Fund No. 1 Limited Partnership are all Japanese affiliates of SBI Holdings, Inc.

6. Dr. Kubota is a resident of Seattle, Washington. He is Acucela’s founder and serves as Chairman of its Board of Directors.

7. Defendant Acucela Inc. is a Washington corporation with its registered office in Olympia, Washington. Its headquarters are in Seattle. It is developing therapies to treat eye-diseases. Acucela’s stock is publicly-held and traded on the Tokyo Stock Exchange. Acucela files reports with the U.S. Securities and Exchange Commission.

III.     JURISDICTION AND VENUE

8. This Court has jurisdiction over this action pursuant to RCW 2.08.010 and RCW 23B.07.030.

9. Venue is proper in this Court pursuant to RCW 4.12.025(1) and (3) and RCW 23B.07.030.

IV.     FACTUAL BACKGROUND

 

  A. Acucela’s Bylaws and the Washington Business Corporation Act Provide Shareholders with the Right to Demand a Special Meeting.

10. Acucela’s Bylaws provide that “a special meeting of the shareholders shall be held if the holders of not less than 10% of all the votes entitled to be cast on any issue proposed to be considered at such special meeting have dated, signed and delivered to the Secretary one or more written demands for such meeting, describing the purpose or purposes for which it is to be held.” Bylaws at § 2.2 (attached hereto as Exhibit 1).

11. Acucela’s Bylaws further state that a special meeting demanded by shareholders shall be held at such date, time, and place as may be fixed by the Board of Directors, provided that the special meeting shall be held within ninety days after Acucela’s Secretary receives a demand for a special meeting. Id. The Bylaws provide Acucela with the option to call an annual meeting instead of calling the special meeting, but only if the annual meeting is held within ninety days of the date of demand for the special meeting and if the business of the annual meeting includes the business specified in the demand for the special meeting. Id.

 

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12. The Washington Business Corporation Act similarly provides that a corporation “shall hold a special meeting of the shareholders” upon demand by “the holders of at least ten percent of all the votes entitled to be cast” on the issue proposed, unless the corporation’s articles of incorporation provide otherwise. RCW 23B.07.020.

13. Acucela’s Amended and Restated Articles of Incorporation (“Articles of Incorporation”) impose no limitations on the ability of shareholders holding more than ten percent of the vote to demand a special meeting. See Articles of Incorporation (attached hereto as Exhibit 2).

14. Under the Washington Business Corporation Act, if notice of the special meeting is not given within thirty days after the date the demand was delivered to the corporation’s secretary, a court may summarily order a meeting to be held. RCW 23B.07.030.

 

  B. SBI Demanded a Special Shareholder Meeting.

15. The SBI entities collectively own 7,752,425 shares of Acucela’s common stock, constituting approximately 21.7% of Acucela’s common stock. See Schedule 13D/A Disclosure (attached hereto as Exhibit 3); see also 2014 Proxy Statement at 16 (attached hereto as Exhibit 4).

16. On January 28, 2015, SBI delivered to Acucela’s corporate secretary a letter pursuant to Section 2.2 of the Bylaws and RCW 23B.07.020(b), demanding that Acucela hold a special meeting of its shareholders (“Demand Letter,” attached hereto as Exhibit 5). The Demand Letter was delivered to Acucela’s corporate secretary both through electronic mail and by hand delivery to Acucela’s main office at 1301 Second Ave., Suite 1900, Seattle, WA 98101.

17. SBI’s Demand Letter provides that the purpose of the special meeting is: (1) to hold a shareholder vote to remove four members of Acucela’s board of directors; and (2) to

 

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hold a shareholder vote on four nominees for directors to fill vacancies created by the first vote. See Demand Letter (Ex. 5). These are proper matters for shareholder action, and the shareholders have a right to take these actions under the Bylaws and Washington statutory law. Bylaws at §§ 3.13 and 3.14 (Ex. 1); RCW 23B.08.030(2).

18. The Demand Letter includes a brief description of the proposals and the reasons for bringing those proposals. See Demand Letter (Ex. 5). The Demand Letter also includes the biographical information of the nominees, as well as the nominees’ written consent to being named as a nominee for Acucela’s board of directors. See id. Additionally, the Demand Letter includes the names and addresses of the shareholders that SBI anticipates will support the proposals (including Dr. Kubota), as well as the number of common shares beneficially owned by those identified shareholders. See id.

19. On January 28, 2015, SBI and Dr. Kubota entered into a Voting Agreement and Irrevocable Proxy (“Voting Agreement,” attached hereto as Exhibit 6). Under the Voting Agreement, SBI granted Dr. Kubota certain authority to cast votes on behalf of the SBI entities in favor of the proposals submitted by SBI. See id.

20. Dr. Kubota individually owns 10,240,654 shares of Acucela’s common stock directly and has the right to acquire an additional 10,000 shares of Acucela common stock upon the exercise of options presently exercisable.

21. SBI’s and Dr. Kubota’s combined shares constitute an absolute majority of all shares eligible to vote at an Acucela shareholders meeting.

22. Despite receiving a proper demand for a special meeting from shareholders holding more than ten percent of the eligible votes, Acucela has failed to issue a written notice to its shareholders of the special meeting within the thirty days required under Washington law (which expired on February 27, 2015).

23. Acucela’s Chief Executive Officer, who is also an incumbent director and one of the directors SBI seeks to remove, has indicated that Acucela does not intend to hold a special meeting within the ninety days required in the Bylaws and by the Washington Business Corporation Act. Rather, Acucela apparently does not intend to call a special meeting at all.

 

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24. Instead, Acucela intends to move forward with its annual meeting on June 8, 2015. However, because the annual meeting is not within ninety days of SBI’s demand, it cannot serve to replace the special meeting demanded by SBI.

V.     CAUSE OF ACTION

25. Plaintiffs reallege paragraphs 1-24, above as if fully alleged herein.

26. The Washington Business Corporation Act provides that the superior court of the county in which the corporation’s registered office is located may, after notice to the corporation, summarily order a meeting to be held “[o]n application of a shareholder who executed a demand for a special meeting valid under RCW 23B.07.020, if [n]otice of the special meeting was not given within thirty days after the date the demand was delivered to the corporation’s secretary . . . .” RCW 23B.07.030.

27. The SBI entities collectively are holders of more than ten percent of the voting stock of Acucela.

28. On January 28, 2015, SBI executed and delivered to Acucela’s secretary a demand for a special meeting of the shareholders, in compliance with RCW 23B.07.020 and Acucela’s Bylaws.

29. Acucela has acknowledged receipt of the Demand Letter and has not asserted that it is defective in any respect.

30. Thirty days have passed since the demand was delivered to Acucela’s secretary.

31. Acucela has not given notice to its shareholders of a special meeting.

32. Accordingly, SBI and Dr. Kubota respectfully request that the Court issue an order directing Acucela to conduct a special shareholders meeting as soon as practicable but no later than April 28, 2015.

 

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VI.     PRAYER FOR RELIEF

SBI and Dr. Kubota pray for relief as follows:

1. An Order pursuant to RCW 23B.070.030 that:

a) Requires Acucela to hold a special meeting as soon as practicable, but no later than April 28, 2015;

b) Directs Acucela to issue a written notice of the special meeting to its shareholders as soon as practicable; and

c) Directs Acucela to comply with the notice requirements contained in Acucela’s Bylaws and in the Washington Business Corporation Act.

2. An award of all attorneys’ fees and costs incurred by SBI and Dr. Kubota in prosecuting their claims against Acucela;

3. Such other and further relief as the Court may deem just and equitable in the circumstances.

DATED this 2nd day of March, 2015.

 

Davis Wright Tremaine LLP
Attorneys for Plaintiffs
By  

 /s/ Brendan T. Mangan

  Brendan T. Mangan, WSBA #17231
  Lauren Rainwater, WSBA #43625
  1201 Third Ave., Suite 2200
  Seattle, Washington 98101
  tel: (206) 757-8260
  fax: (206) 757-7260
  brendanmangan@dwt.com
  Joel C. Haims*
  Morrison & Foerster LLP
  250 West 55th Street
  New York, NY 10019-9601
  tel: (212) 468-8000
  fax: (212) 468-7900
  jhaims@mofo.com
  Co-counsel for Plaintiffs SBI Holdings, Inc. and the SBI Entities
  * Not yet admitted in this Court

 

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