good morning your honors may it please the court leo k was on behalf of the appellant's the principal arrow of the district court is that it focused on the amended certificate of incorporation to the exclusion of all other documents issued in connection with this offer yes the certificate is a contract between the corporation and the shareholders but so is the contemporaneously filed prospectus pursuit which the shareholders showed their assent by purchasing the quartet shares isn't it usually thought that a prospectus is an invitation essentially to make an offer it's like an advertisement isn't but there's case law in delaware holding that the prospectus is actually the offer under certain circumstances and in this case it was a contemporaneously filed document indeed the closest case involving a blank check company is the ruffle of case in delaware and in that case the court held and stated the charter the registration statement and the trust agreement specify the procedures the trance tech was to follow the time of the i p o and the time it either consummated a business combination or was dissolved and liquidated you know the some of the certificate corporation did not have it and to recor normally there is not this and that every question is a tender requirement the question is the timing of the tender requirement is in and in the prospectus specifically say that that was a departure from what is the usual process in this kind of company it was one of those some do some don't in this case they said we'll specify in the proxy materials whether that tender is going to be required because in this instance in order for the corporation to fully comprehend who was converting into cash and who was not converting into cash they wanted the shares tendered prior to the to the shareholders meeting in what it didn't the prospectus sort of indicate that this was really a substantive  change that it was a in order to prevent people from having a certain window for speculation well it was it was really the term convert the definition of convert is in it is an exchange of one property for another and it doesn't say when the exchange has to take place and so long as someone says i want to exercise this right the actual exchange could come at any time radically it couldn't in this instance because the proxy said you'd get you'd receive further instructions in the because the prospectus said you'd receive further instructions in the proxy they were all part of the the mechanical aspect of this transaction it basically delivery is required under delaware law and order to complete the purchase of of east of a piece of stock under the time of delivery you seem to suggest in your that the timing of delivery is also required by that's that's not true the timing is not required but delivery is required and in this instance the prospectus said you'll receive further instructions the prospectus which clearly is a contract between the corporation and the shareholders just like is is stated in in the rough flow decision and the timing was stated and in other words here and there but the timing in the perspective is kind of permissive he may require public stock holders who wish to convert their shares comments so it's it was forward thinking it wasn't you have to do this so where's the contract in the wire well it the contract there's nothing inconsistent between the delivery requirement prior to to the shareholders meeting and the certificate of incorporation and the prospectus the certificate of incorporation is silent although it does specifically refer the proxy materials the prospectus says will tell you whether you're going to have to deliver the shares and it's the wind and the when is is the mechanical aspect of well it's just a mechanical aspect of it suppose i agreed with you that this was in fact a the prospectus is a contract and the prospectus does give you the right to include instructions of this kind of detail in the proxy statement and that mr o'hara in fact breached the contract by not tendering in time why is that such a material breach that it would excuse your performance of the substance of the right to convert well eats not eats not that it's a material breach it's in in in contradiction of the instructions that were issued and it's just like that you're a lot like the judge so focused at the beginning of the argument below when he said he the prospectus doesn't say and the incorporation doesn't say you have to fill out the proxy court but that's contained in the in the proxy material suppose it said it has to be there by noon the day before the the share holders meeting and it got in at twelve fifteen that would that would mean that you don't have to comply with the substantive obligation to do the conversion based on the proxy materials the proxy statement in the clear instructions in the proxy state the proxy statement set for three requirements you have to vote yea or nay you have to fill in the box and then you have to deliver your shows before the shareholders meeting that doesn't deprive anyone over right it's to exercise that right deliver the shares and that's consistent with delaware law and it's consistent with both the certificate of incorporation and the prospectus there's nothing inconsistent in requiring that act was not inconsistent but why is why is there no forgiveness if the substance of the substance of the right is that when you buy these shares you have this right to do a cash conversion and you're saying well it makes sense to me that there could be mechanical requirements you have to check the box on the proxy statement it is not you're not supposed to just write on the proxy statement i hereby exercise my right you know ok you can do that to make things clear and orderly but why why the strict tangible assets of at least five million one dollar upon consummation of such business combination in wanted to make that determination in order to see if it was going to go forward they needed to know a lot of the shares were list they were delivered prior to the shareholders meeting there was no way of knowing whether the business combination would go forward and the other aspect of this which why it why is that if he checks the box isn't he obligated to go forward with the conversion  according to judge not according to judge records decision not courting to the statements he made he was still trying to see if he could sell it for higher than ten twenty after he checked the box on sept on when he sent the notice to his broker on september thirtieth is in the selection i'm trying not to use were hugely massively important the disconnect is a common claims that the restriction at issue here was the requirement that you deliver the stock and therefore the judge ray cuffs decision was that a requirement of delivery of stock upon conversion has to be set forth in a certificate of incorporation appellants then say mr lovera didn't tend his stock and therefore he should issue of ten of the stock in order to to to convert that is all wrong and the error is manifest first of all it is as your owners of pointed out the requirement isn't that you deliver the stock the requirement isn't that you prove that you own the stock i have no problem with that requirement the requirement is that you deliver the stock at or before the meeting and it is massively  important that that difference occurred that is what was before judge rakoff that is what judge reg off said needed to be in the certificate of incorporation and the reason it needed to be the certificate of incorporation is because it is a limitation qualification  restriction on the rights of stockholders and delaware law could not be clearer irrespective of all the nice argumentation you heard about contract law delora law section one fifty one a could not be clearer when you have a restriction qualification of on the rights of stockholders that must be set forth in the certificate of incorporation i am not saying middle of air is not saying that you can't say that you have to tender o before the meeting but if you're going to make that requirement you have to set forth that requirement and a certificate you're co counsel have you ever see a certificate with that limitation i seen it i have not know but and that's from merrill lynch right so you see you see it says under that says the same date quartette merger court had a ten three twenty twenty fourteen exchange minus one seventy five so that right so that's what they did isn't it didn't they sort of automatically transfer the shares from one to the other i don't think america yes it's actually a little bit more complicated than that i'm sorry it didn't exist and that's exactly correct i'm having problems and you know how does he tender the shares he wants he wants to tender the shares and get money they want to give him new shares in the name of pangea and it seems like the latter is was done only chronically i mean where is the evidence that what was done electronically was at his initiative rather than something that happens like a stock split where merrill lynch tells you you now have two shares worth half as much as each share was worth it worth half as much as yesterday because they did a stock split rather than i instructed merrill lynch to sell these shares or give them back or do something else i don't mean this to be as flippant as it's going to sound but i don't think it matters you know it doesn't matter for two reasons first of all what's what this well i mean it certainly explodes the argument that we didn't hear an oral argument today but that is all over your opponent's briefs that somehow it's absolutely necessary because of that hinges on the notion that this is a restriction on the right to a substantive right of the shareholder right that's what has to be in the in this difficult every detail i think you sort of conceded this in a way  said something i took that way that some requirements or some rules or some processes could be insisted on so it doesn't say in the shareholders is difficult you have to check a box on the proxy statement absolutely and that's really the second impact of this disconnect there's nothing wrong with requiring proof of ownership but what's wrong is this requirement says if you don't do one one thing that comes off your adversary's argument mr all a very did say i think in his deposition that he was still hoping to sell the shares for more than ten twenty if his prediction i guess that the shares would go down turned out to be wrong or turned out to be right so that didn't make a difference substantively but do you do you think that mr all of error if it's posed the stock had gone shooting up on the very first trading day so the day after the merger as i think it was you want to put it out there was no market for quartet now in terms of whether you are bound by your notice to convert and therefore stock to play that arbitrage that you describe it's because of what they did ok so because they exchanged the stock if the stock had gone if the pendulous stock was worth more than ten twenty he could have solved that stock and then just not brought this lawsuit and not not complained about what they did to or for nim and that would have been how things would have gone he wouldn't have had a lawsuit to break the lease i wouldn't have brought it right but it would you're saying  would say to him prove that you own the stock and then he goes here's my here's my merrill lynch statement i do they say fine that's not what they said they said didn't meet the deadline therefore you are out of luck and this is very important in a spec because in a spectacular lester's some calamity like a nuclear holocaust basically you expect one of three things to happen eighteen months comes and goes and there's no deal in which case you get to put down your ten bucks you get the ten dollars and twenty cents second whatever period time this case was a year comes and goes you go they get a deal that you don't like you turn it down and you get ten dollars and one ten dollars and twenty cents worth third you do like the deal in which case you're off to the races you're you've got all the risks attendant but they have imposed now a fourth possibility which is you do everything that the certificate of incorporation says you're supposed to do but you didn't do the thing that we added illegally because the brief it says he tendered it on or about october eighth and if you look at the document that's referred to a three eighty one his e mail to his broker to the pin j people it does not say that he's  demands payment without offering to us but he has no he has nothing to tender anymore but he does he has the pangea stock at this point this it's an automatic conversion that had occurred is an automatic conversion he didn't this conversion didn't occur right in the in the prospectus if it describes the way you're going to do it by tendering the shares and unless you ten shares unless you deliver those shares there's no way for p and j to know that that they're not required to it haven't you already rejected his attempt to convert his failed what you would consider his failed attempt to convert by just giving you notice without tendering shares you already did option two rather than option one converted the shares to rather than to get weak because he didn't he didn't tender the shares as he was so once he was whether he tenders the shares after october third or after the transaction it seems to me is  relevant your argument is he had to do it before and if he didn't do it before you're entitled to reject it and give him pangea shares instead of giving him an dollar that raises it and understand that that the record date in this instance was august twenty seventh so he had from august twenty seventh and told and told the nine thirty until the shareholders meeting where he could speculate as much as he wanted and if the stock was going up he could have solid and made a profit even though on august twenty seventh he had said