April 10, 2002 9:35 AM PDT

Fiorina voice mail: "We're nervous"

Two days before Hewlett-Packard shareholders met to vote on the Compaq Computer merger, HP CEO Carly Fiorina said in a voice mail to another top executive that the company might "have to do something extraordinary" to sway two large stakeholders to approve the deal.

See special coverage: A Fight to the Finish In a voice mail to Chief Financial Officer Bob Wayman left two days before the March 19 vote, Fiorina expressed concern that proxy solicitor Alan Miller "remains very nervous about Deutsche Bank and Northern Trust."

HP's actions to win Deutsche Bank's approval are the subject of a lawsuit filed by merger opponent Walter Hewlett. Hewlett charges that HP improperly influenced Deutsche Bank by holding its banking relationship with the company as leverage to sway Deutsche's vote.

By itself, the voice mail is not strong evidence, but it could help Hewlett as part of a larger case, said Jesse Choper, a professor of corporate law at Boalt Hall, the University of California at Berkeley's law school.

"In the context of other evidence it's helpful," Choper said. "You are trying to put together a complete puzzle and you get a little piece that might possibly fit some bigger piece. If you can fit it to the bigger piece than you might have something."

In the voice mail, which was obtained by the San Jose Mercury News and posted to its Web site, Fiorina told Wayman to call Deutsche Bank first thing Monday morning--the day before the shareholder vote.

"If you don't get the right answer from him (an unspecified Deutsche Bank representative), then you and I need to demand a conference call, an audience, et cetera, to make sure we get them in the right place," Fiorina told Wayman. "On Northern Trust, we've seen a piece of their votes move against us and we're nervous."

She went on to say that HP might "have to do something extraordinary for those two to bring them over the line."

Hewlett spokesman Todd Glass declined to comment on how the voice mail would be used in the case, but he said, "We think it is relevant and assume it will be turned over in discovery."

In a statement, Wayman said the voice mail was his, but he said the company had not acted improperly.

"In the last few days before the special meeting, we were constantly prioritizing our efforts based on feedback from investors and whether we had yet made our case effectively to them," Wayman said. "We did in fact make extraordinary efforts to present the merits of the merger to our investors, including dozens of presentations in the final days."

HP claims that it has won the shareholder vote by a "slim, but sufficient margin," but Hewlett has refused to concede defeat. An official tally is still being prepared by a Delaware firm. In legal papers, Hewlett claims that the margin of victory may be less than 1 percent.

A source close to HP said that the company always assumed that Deutsche Asset Management, the unit of Deutsche Bank that owned the HP shares, would vote along with the recommendation from Institutional Shareholder Services, a key adviser that came out in favor of the deal.

The source said that over the weekend, HP got indications that this was not the case, and it was looking to get an in-depth meeting with Deutsche Bank. Although HP had contacted Deutsche Bank, the source said that the company had not done an in-depth presentation for the firm before the final hours leading up to the vote.

 

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