Court sees one conversation key in HP merger case
4/21/2002 8:30:27 PM
By Peter Henderson and Caroline Humer
SAN FRANCISCO/NEW YORK, April 21 (Reuters) - The fate of the biggest merger in the history of the technology industry may hang on a single conversation.
A straight-talking Delaware business judge will open a trial on Tuesday to determine whether Hewlett-Packard Co. (HWP) Chief Executive Carly Fiorina and her team bought votes from shareholder Deutsche Bank (804010) in a last-minute scramble to pass their $20 billion plan to acquire Compaq Computer Corp. (CPQ) .
Fiorina said she won fair and square in a shareholder vote on March 19, by 45 million of the 1.7 billion shares voted.
But Walter Hewlett, a dissident board member and founding family scion, launched a suit less than 10 days after the vote, alleging HP bought votes and lied about merger problems to dupe investors into approving the deal. He has warned the deal would make HP into a bloated personal computer maker rather than the high-margin powerhouse envisioned by management.
Whether Chancellor William Chandler III of the Delaware Chancery Court agrees is only half the issue. If he finds for Walter Hewlett, the judge must also decide whether to throw out some ballots, call a new vote, or choose another remedy. He is expected to make a decision in less than a week.
Walter Hewlett, who also plans to ask for a vote recount, has waged a five-month, increasingly bitter battle to stop the merger, engineered by Fiorina, a fierce competitor who is considered one of the most powerful woman in corporate America.
'I WOULD BE RUNNING SCARED'
Chandler has already identified one key to his decision -- why Deutsche Bank Asset Management switched sides and supported Fiorina after a call on the morning of the vote.
"I would be running scared if I were HP," said Samuel Thompson, a professor and the director at the Center for Study of Mergers and Acquisitions at the University of Miami School of Law. Thompson has studied Chandler's initial ruling, in which he agreed to try the case, over HP's objections.
Chandler wrote that Walter Hewlett will have a "significant burden" in proving Deutsche Bank was coerced by HP into voting 17 million shares for the merger. The three-day trial is expected by analysts to feature testimony by Fiorina and Deutsche Bank representatives.
Fiorina also told HP Chief Financial Officer Bob Wayman a few days before the March 19 shareholder vote that management might have to do something "extraordinary" to win Deutsche's support.
The voicemail of that conversation was leaked to the San Jose Mercury News and later confirmed by HP.
"Protection of unsuspecting shareholders who are at risk of being defrauded or disenfranchised should be the focus of the court, not whether the allegedly bad actors were contractually obligated to each other," Chandler wrote.
The stakes for witnesses rose last week, when federal prosecutors opened a criminal probe of the HP vote.
"The moment a U.S. attorney is introduced in the matter, people who otherwise are happy to testify get nervous," said John Coffee, a securities law professor at Columbia University's Law School, who has worked for HP.
Coffee suggested that Walter Hewlett also might choose to concentrate at trial on his second allegation -- that HP covered up reports that merger planning was not going well.
The preliminary tally by independent vote counters this week showed the merger passed by 45 million votes, or 2.8 percent of those cast, enough to win even if the Deutsche ballots were thrown out.
The planned merger has survived a number of setbacks, however, and any judgment against HP could be appealed to the Delaware Supreme Court.
Even so, the judge has a wide range of choices, said Charles Elson, director of the Center for Corporate Governance at the University of Delaware.
Since the shareholder rights movements blossomed in the 1990s, the chancery court is no longer considered management's best friend, he added.
"Traditionally it was argued it was a pro-management court. Today I think it's anybody's guess." |
