April 17, 2002 3:30 PM PDT

HP merger passes crucial hurdle

update A formal tally announced Wednesday showed that Hewlett-Packard shareholders voted narrowly to approve a merger with Compaq Computer, but opponents refused to concede defeat.

See special coverage: A Fight to the Finish According to a complete, but preliminary, tally by Delaware-based IVS Associates, shareholders approved the deal by a margin of 45 million votes out of some 1.6 billion votes cast.

"We are gratified the preliminary vote tally validates that HP shareowners voted the majority of their shares in support of the merger," HP CEO Carly Fiorina said in a statement. "We are eager to put this difficult period behind us and look forward to doing business as the new HP."

However, opponents of the deal said they intend to fight on.

"We do intend to review and challenge the vote," said a representative of dissident board member Walter Hewlett, who has led opposition to the merger.

According to HP, if Hewlett seeks a recount, both parties will participate in a review of the proxies, a process that could take about one week. After the completion of any recount and challenge, IVS will release a final, certified vote tally.

HP received 837.9 million votes, or 51.4 percent of votes cast, while opponents of the merger garnered 792.6 million votes, or 48.6 percent. HP said that an "insignificant number" of votes remain unresolved.

A favorable tally had been expected. HP declared victory just hours after the polls closed March 19, saying it had won a "slim, but sufficient" majority of votes. HP's victory statement was based on a preliminary count from its own proxy solicitors.

Taking it to court
In addition to challenging the vote, Hewlett is hoping to see the results overturned in court.

In a lawsuit filed March 28, Hewlett alleges that HP improperly influenced large shareholder Deutsche Asset Management, a unit of Deutsche Bank, to change its vote on the morning of the election. The suit also alleges that HP failed to disclose problems it was encountering in its integration planning effort.

The preliminary tally, however, shows that HP won by somewhat more than the Deutsche Bank votes in question.

Deutsche Asset Management initially cast its 25 million HP shares against the deal, but then switched its vote on at least 17 million of those shares at the last minute in favor of the deal, Hewlett's suit alleges.

Unless a court blocks the deal, HP has said it expects to close the merger sometime later this month or early next month.

HP spokeswoman Rebeca Robboy reiterated that timeline Wednesday. "We are optimistic that the new company will be launched by early May," Robboy said.

The company has said that shortly thereafter, it will begin releasing its product plans and start the process of integrating the two companies into one. It also plans to slash roughly 15,000 jobs.

The final vote count is a blow to Hewlett, son of HP's co-founder. Hewlett, who was not re-nominated to HP's board of directors, estimated in his suit that the margin between the "yes" and "no" votes was less than 1 percent.

With a 3 percent victory margin, HP would still have enough votes if the court throws out the Deutsche Bank shares that were voted in favor of the deal. As a result, Hewlett may need to focus on getting all "yes" votes tossed out by convincing the judge that HP released misleading information to all investors regarding the integration planning.

"Hewlett has a better shot with this (integration planning) argument, even though it's still going to be a hard row to hoe," said Richard Chernicoff, a partner with Brobeck Phleger & Harrison in Los Angeles. Chernicoff specializes in mergers and acquisitions.

Chernicoff noted that under Delaware law, company executives and directors have an obligation of a "duty of candor." Under this law, "disclosures have to be fair and accurate," he said.

Hewlett alleges that while HP has publicly stated its integration planning was moving forward quickly and on track, the company knew members of its integration team did not widely share that view.

Hewlett had lined up the support of other members of the Hewlett and Packard families, plus family foundations, totaling 18 percent of HP's shares. He also got a number of institutions and pension funds to vote against the deal, although several of HP's largest shareholders ultimately voted in favor of the merger.

The company got a key boost in March when key adviser Institutional Shareholder Services gave its endorsement. ISS advises roughly 23 percent of HP shareholders, though not all of ISS' clients ended up heeding its recommendation.

Hanging chads?
One institutional investor who opposed the deal said the tally was a win for HP but not a conclusive one.

"This could be Florida all over again, and we could be counting hanging chads before we know it," said Joe Fazzino, a spokesman for Banc of America Capital Management, which voted its roughly 6 million HP shares against the merger. "If you look at the IVS tally, however, it seems pretty clear that HP won by a pretty narrow margin, and we have to go on that assumption for now."

Fazzino declined to comment on whether the results of the tally might prompt the asset manager to shed all or some of its HP holdings.

"We don't want to talk about it, because it could affect the price of the stock," he said.

Adding to the drama over the merger, HP also said this week that the Securities and Exchange Commission and U.S. Attorney's office are looking into the vote. The inquiries from the federal agencies came after a voice mail message from Fiorina to another HP executive became public.

In the message, Fiorina expressed concern over how Deutsche Bank and Northern Trust, another institutional investor, planned to vote; Fiorina said the company might have to "do something extraordinary" to sway their votes.

 

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