ASND mentioned.....
General Datacomm seeks to dismiss suit vs investor
By Rita Farrell
WILMINGTON, Del., Feb 8 (Reuters) - General DataComm Industries Inc. (NYSE:GDC - news) late Friday asked the Delaware Chancery Court to dismiss its January 28 lawsuit seeking to exclude an investor proposal from the proxy for its annual meeting February 4.
The court declined to act before a vote was taken and the proposal was approved. But even if the lawsuit goes away, the underlying issue of whether investors will succeed in shifting the balance of power from corporate directors to shareholders is not expected to.
The proposal, by the State of Wisconsin Investment Board (SWIB), said DataComm ''shall not re-price any stock options already issued and outstanding to a lower strike price at any time during the term of such option, without the prior approval of the shareholders.''
Vice Chancellor Leo Strine said he would not consider the substance of the lawsuit until until after the vote. At Thursday's meeting, shareholders voted 5.9 million for the proposal and 4.7 million against. SWIB, a $65 billion public pension fund, is the beneficial owner of 1.9 million shares.
By late Monday, Strine had not yet decided whether to dismiss DataComm's lawsuit, a court spokeswoman said.
But SWIB spokesman Kurt Schacht told Reuters ''We're prepared to proceed to a court determination in Delaware on the permissible scope of shareholder bylaws, whether with (DataComm) or one of the other focus companies we are pursuing.''
Schacht said SWIB will file proxy proposals on options re-pricing with Advanced Micro Devices (NYSE:AMD - news), Ascend Communications Inc (Nasdaq:ASND - news), Cadence Design Systems Inc (NYSE:CDN - news), Cambridge Technology Partners Inc (NYSE:CATP - news), and Idexx Laboratories Corp (Nasdaq:IDXX - news).
It will file proxy proposals on poison-pills with Applied materials Inc (Nasdaq:AMAT - news), Eastern Enterprises (NYSE:EFU - news), Monsanto Co (NYSE:MTC - news) and Union Carbide (NYSE:UK - news).
''Shareholders should have some ability to have input on the poison pill,'' Schacht said, speaking of the defense favored by directors for thwarting a hostile takeover by making it prohibitively expensive.
It was DataComm's position that its shareholders did not have the choice of voting on the bylaw proposal ''because the Re-pricing Bylaw is invalid under Delaware law,'' court papers say.
But Strine said ''The question of whether a stockholder- approved bylaw may be repealed by a board of directors with such authority has not clearly been answered by a Delaware Court,'' according to a revised opinion he issued Friday.
No one at DataComm could be reached at its Middlebury, Connecticut offices.
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