Hewlett v. Hewlett-Packard

Co.2002 WL 549137

Submitted: April 7, 2002

Decided: April 8, 2002. 

OPINION

Chandler, Ch. 

            *1 This lawsuit challenges certain actions taken in connection with a hotly contested shareholder vote on a proposed merger. The merger would combine Hewlett-Packard Company ("HP") and Compaq Computer Corporation, the second and third largest computer makers in the United States. HP's management strongly supported the merger. Plaintiffs, Walter B. Hewlett, Edwin E. van Bronkhorst, and the William R. Hewlett Revocable Trust (collectively, "the Hewlett Parties"), opposed the merger and waged a vigorous proxy contest against it. On March 19, 2002, HP held its special meeting of stockholders to vote on the proposed combination. Following the meeting, HP announced that the proposed merger had been approved by a slim, but sufficient, margin of votes. The independent inspector of elections has not informed either party of any preliminary results of the voting, and is not expected to certify final results until the latter part of April, 2002.

            Nine days after HP's stockholder meeting, the Hewlett Parties filed this action, pursuant to 8 Del. C. §  225(b), seeking a declaration that the merger was not validly approved. They attack the merger vote on two fronts. First, they allege that a large number of votes were cast in favor of the merger by a stockholder whose approval was obtained through coercion, intimidation, or enticement by HP management. Second, they assert that HP management procured its proxies in favor of the merger by knowingly making material misrepresentations about key financial numbers at the center of HP's proxy campaign.

            On April 1, 2002, HP moved to dismiss the complaint. Because all parties to the controversy were concerned about a prompt resolution, I directed all briefing on the motion to be completed by April 6, and oral argument was held on April 7. This is the Court's decision on that motion. 

BACKGROUND FACTS¹

            HP and Compaq are each publicly traded Delaware corporations and global providers of computers and computer-related products and services. Hewlett and van Bronkhorst are co-trustees of The William R. Hewlett Revocable Trust (the "Trust"), which owns 72,802,148 shares representing approximately 3.75% of HP's outstanding stock. The Hewlett Parties beneficially own 75,748,594 shares of HP representing approximately 3.90% of HP's outstanding stock.²

            *2 On September 4, 2001, HP and Compaq entered into an agreement by which the two companies would be combined. Under the terms of this proposed merger, Compaq stockholders would be issued 0.6325 of a share of HP common stock for each share of Compaq stock they owned, representing in the aggregate approximately 35.7% of the combined company. HP stockholders would continue to hold the same number of shares they owned before the merger but, because of the new HP shares issued to former Compaq shareholders, the equity ownership percentage of the existing HP stockholders would be considerably diluted. Consummation of the proposed merger required a majority vote of HP stockholders voting at a meeting where a majority of the outstanding HP shares were present and properly approved the issuance of HP stock to Compaq stockholders.

            Immediately following the announcement of the proposed merger, HP's stock price dropped 18.7% from $23.21 to $18.87 (representing an aggregate loss of approximately $8.5 billion in stockholder value). By early November 2001, the price of HP's shares had dropped 27.2%. This continued decline in share price contrasts with a 9.9% gain in share value realized by an index of comparable companies.

            On November 6, 2001, in reaction to this decline in value that Hewlett believed confirmed his concerns over the proposed merger, Hewlett publicly announced that he, the Trust, the William and Flora Hewlett Foundation, and his two sisters would all vote against the proposed merger. That same day, David Woodley Packard, son of HP's other founder, announced that he would also vote against the transaction. Later the Packard Foundation also announced its shares would be voted against the proposed merger. The Hewlett Parties, the William and Flora Hewlett Foundation, Hewlett's two sisters, David Packard, and the Packard Foundation collectively represent approximately 18% of HP's voting shares. By a definitive proxy statement dated February 5, 2002, the Hewlett Parties solicited proxies in opposition to the proposed merger.

            On March 19, 2002, HP held a stockholders meeting to vote on the proposed transaction. After the meeting, HP publicly claimed that the proposed merger was approved by a slim margin. The independent inspector responsible for certifying the vote, however, has not informed either party of any preliminary results of the voting. 

ANALYSIS

A. The Vote-Buying Claim 

1. Contentions of the Parties 

            The Hewlett Parties' allegation with regard to proxies cast in favor of the proposed merger by Deutsche Bank  is essentially, although not captioned as such in the complaint, a vote-buying claim. Deutsche Bank holds at least 25 million shares of HP. The plaintiffs allege that Deutsche Bank's last- minute switch from voting 17 million of its shares against the merger to voting those shares for the merger was the result of a combination of inducement and coercion, orchestrated by HP's management, which caused Deutsche Bank to vote in favor of the proposed merger for reasons other than those based upon the merits of the transaction.⁴ The Hewlett Parties' allegations in support of this claim focus on actions taken during the four days before and the morning of the special meeting.

            *3 On or before March 15, 2002, the proxy committee of Deutsche Asset Management, Inc. conducted an independent review from which it determined to vote its shares against the proposed merger. Consistent with that decision, Deutsche Bank submitted its proxies and voted against the proposed merger. On March 15, 2002, HP closed a new multi-billion dollar credit facility to which Deutsche Bank had been added as a co-arranger. As of March 18, 2002, the day before the shareholders meeting, Deutsche Bank was concerned that HP's reaction to the proxy committee's disapproval of, and vote against, the proposed merger would be to end the ongoing, and desired future, business dealings between HP and Deutsche Bank. Allegedly at the demand of HP management, a telephone conference was held between Deutsche Bank and HP management on the morning of the March 19 vote. After that conference call, Deutsche Bank switched as many as 17 million votes to favor the proposed merger. The plaintiffs contend that this switch was elicited as a result of the inducement provided by the current HP credit facility, to which Deutsche Bank had just been added, combined with the coercion of the telephone conference from which Deutsche Bank understood that its future business dealings with HP would be jeopardized if it did not switch its votes to favor the proposed merger. The Hewlett Parties suggest that evidence of the import of this switch to HP's management is shown from HP's CEO and board chairwoman, Carleton S. Fiorina ("Fiorina"), first delaying the scheduled opening of the March 19 special stockholder meeting to wait for word from Deutsche Bank, and then announcing the closing of the polls promptly after apparently receiving word on the podium that Deutsche Bank had switched its vote. This vote-buying arrangement allegedly had the purpose and effect of defrauding and disenfranchising HP stockholders.

            HP had 1,941,391,000 shares outstanding and eligible to vote on the proposed merger as of the record date. HP's management reported that the proposed merger was approved by an extremely thin margin. If the parties are correct that the margin between the votes in favor of and those against the merger was less than 1% of the shares voted, the improper influence on Deutsche Bank's decision to switch 17 million votes to favor the proposed merger could have determined the outcome of the vote. Based on the facts alleged, the Hewlett Parties seek a declaration that the Deutsche Bank proxies which were switched in favor of the merger were improperly induced and/or coerced and are, therefore, void.

            HP responds to these allegations by contending that a claim of vote-buying is disfavored in Delaware as a basis upon which to disenfranchise stockholders and overturn a vote. HP contends that it is the plaintiffs who are, in fact, seeking to disenfranchise shareholders through their prayer for a declaration from this Court that Deutsche Bank's proxies are invalid. Finally, HP argues that the Hewlett Parties have failed to plead adequately a vote-buying claim (assuming that such a claim is still cognizable) because there was not a binding voting agreement governing Deutsche Bank's stock and because a majority of HP stock was not obligated to vote in favor of the transaction. 

2. Legal Standard for a Vote-Buying Claim 

            *4 This Court has, on several earlier occasions, addressed so-called "vote- buying" allegations. In some instances the claims were successful and in others they were not. There does not, however, appear to be an obvious predisposition on the part of the Court one way or another toward vote-buying claims.⁵

            The appropriate standard for evaluating vote-buying claims is articulated in  Schreiber v. Carney. Schreiber indicates that vote-buying is illegal per se if "the object or purpose is to defraud or in some way disenfranchise the other stockholders."⁷ Schreiber also notes, absent these deleterious purposes, that "because vote-buying is so easily susceptible of abuse it must be viewed as a voidable transaction subject to a test for intrinsic fairness."⁸ At first blush this proposition seems difficult to reconcile with the General Assembly's explicit validation of shareholder voting agreements in §  218(c). Significantly, however, it was the management of the defendant corporation that was buying votes in favor of a corporate reorganization in Schreiber. Shareholders are free to do whatever they want with their votes, including selling them to the highest bidder. Management, on the other hand, may not use corporate assets to buy votes in a hotly contested proxy contest about an extraordinary transaction that would significantly transform the corporation, unless it can be demonstrated, as it was in Schreiber, that management's vote-buying activity does not have a deleterious effect on the corporate franchise.¹⁰

            I am not persuaded by HP's contention that, as a threshold matter, a plaintiff cannot state a cognizable claim unless he establishes that there was a binding obligation to vote a specific way, in the nature of a contract, on the part of the shareholder whose vote is challenged. Of course there must be some kind of agreement with regard to how the challenged shares are to be voted for the issue to arise in the first place. I am not convinced, however, by the argument that such agreement must rise to something akin to a contractual obligation to vote shares according to the wishes of another before a cognizable claim may be stated. It is more logical to tie cognizability of a vote-buying claim to actual voting in accordance with a purportedly illegal agreement. 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. I conclude, therefore, that a contractually binding obligation between parties to an agreement to vote shares in a particular manner is not a prerequisite to a vote-buying claim. The threshold showing required of a plaintiff is that he plead facts from which it is reasonable to infer that in exchange for "consideration personal to the stockholder," a stockholder has agreed to vote, or has in fact voted, his shares as directed by another.¹¹

            *5 I also disagree with HP's assertion that to establish the invalidity of a vote-buying agreement, a plaintiff must show that a majority of all outstanding shares was obligated to vote in favor of the transaction as a result of the vote-buying. Again, the focus of the Court's analysis should be on possible deleterious effects of a challenged vote-buying agreement on shareholders. Less than a majority of votes can be decisive in tipping the results of an election one way or another. If voiding the votes cast in accordance with a fraudulent vote-buying agreement with corporate management is sufficient to change the result of a vote, I am again of the opinion that the defrauded or disenfranchised shareholders should not be prevented from bringing a vote-buying claim. 

3. Analysis of the Vote-Buying Claim 

            I must now determine whether the well-pleaded facts of the complaint, if true, would establish that Deutsche Bank's vote of 17 million of its shares in favor of the proposed merger was procured by HP as the result of an agreement or understanding whose purpose was to limit the effectiveness of the votes of the other HP stockholders.

            Initially, I believe the facts as alleged in the complaint support a reasonable inference that the switch of Deutsche Bank's vote of 17 million shares to favor the merger was the result of the enticement or coercion of Deutsche Bank by HP management. The Hewlett Parties allege that just four days before the stockholders meeting Deutsche Bank was named as a co-arranger of a multi-billion dollar credit facility. That same day (March 15), Deutsche Bank had submitted all of its proxies and voted 25 million shares against the merger. On Monday, March 18, it is alleged that Deutsche Bank expressed fear over losing future business as a result of HP's negative reaction to Deutsche Bank's vote against the HP management-sponsored merger. Finally, the complaint alleges that, on March 19, the date of the special stockholder meeting, HP delayed the meeting while HP management was involved in a purportedly coercive telephone conference and then closed the polls immediately after Deutsche Bank switched 17 million of its votes as a result of the understanding arrived at during that call. As stated above, however, a vote-buying agreement is not illegal per se, even when company management is buying votes. The more difficult question is whether or not the facts alleged support a reasonable inference that the agreement had a materially adverse effect on the franchise of the other HP shareholders.

            The Hewlett Parties' primary argument as to why the alleged vote-buying agreement between HP and Deutsche Bank is illegal is that HP management used corporate funds (in essence, funds in which all of HP shareholders have a common interest as owners of HP) to purchase votes in favor of a transaction favored by management that management was required to put to a shareholder vote.¹² Furthermore, HP management failed to use any devices, such as a ratifying vote of independent shareholders, which would protect the integrity of the vote on the proposed merger.

            *6 The allegations of the Hewlett Parties, if true, are particularly troubling. The extraordinary transaction at issue in this case is one of the limited types of transactions a corporate board cannot unilaterally cause its corporation to consummate. Because the transaction would have a fundamental impact on the ownership interests of a company's shareholders, the board must present the proposal to the shareholders for approval. If the allegations of the Hewlett Parties are true, the implication is that HP management was concerned that the proposed merger, which they supported, would not be supported by a majority of HP's shareholders. Despite the fact that it was for the shareholders to make the ultimate determination of whether to approve the proposed merger, HP management purportedly used the shareholders' own money (in the form of corporate funds) to buy votes in opposition to HP shareholders who did not favor the merger. These actions, if they in fact were taken impermissibly, tipped the balance in favor of HP management's view of how the vote should turn out and made it proportionally more difficult for shareholders opposing the merger to defeat the transaction. In my opinion, that is an improper use of corporate assets by a board to interfere with the shareholder franchise. Whether the shareholders disagreed with, did not believe, or even did not understand the information presented to them by HP management about the proposed merger, it was the right of the shareholders to cast their votes on the proposed merger without impermissible interference from HP management.

            Schreiber is instructive in demonstrating how a vote-buying agreement in which a board expends corporate assets to purchase votes in support of a board- favored transaction may be validly consummated. There, a vote-buying agreement was being contemplated in which corporate assets were to be loaned to a 35% shareholder on favorable terms as consideration for that shareholder's agreement to vote in favor of a management-endorsed merger. The company formed a special committee to consider the merger and also the advisability of entering into the vote-buying agreement. The special committee hired independent counsel and then determined that both the merger and the shareholder agreement would be in the best interests of the company and its shareholders. After arm's-length bargaining with the 35% shareholder, the parties arrived at agreeable terms for the loan and the special committee recommended the shareholder agreement to the full board. The board of directors unanimously approved the agreement as proposed and submitted the vote-buying proposal to the shareholders for a separate vote--in effect a vote on vote- buying in that particular setting. As a condition for passage of the vote- buying proposal, a majority of outstanding shares, as well as a majority of the shares neither participating in the agreement nor owned by directors and officers of the company, had to be voted in favor of the proposal. After distribution of a proxy statement that fully disclosed the terms of the agreement, the vote-buying proposal was easily approved by the shareholders.

            *7 The Schreiber Court noted all of these protective measures and ultimately held that "the subsequent ratification of the [shareholder agreement] by a majority of the independent stockholders, after a full disclosure of all germane facts with complete candor precludes any further judicial inquiry."¹⁴ I agree with the well-reasoned opinion by then- Vice Chancellor Hartnett in Schreiber. Absent measures protective of the shareholder franchise like those taken in Schreiber, this Court should closely scrutinize transactions in which a board uses corporate assets to procure a voting agreement. This is not to say that all of the protective measures taken in Schreiber must be present before the Court will validate vote-buying by management using company assets. Each case must be evaluated on its own merits to determine whether or not the legitimacy of the shareholder franchise has been undercut in an unacceptable way. It is certainly possible for management to enter into vote-buying arrangements with salutary purposes. Accepting the allegations of the complaint as true in this case, however, I conclude that the plaintiffs have stated a cognizable vote-buying claim.

            Because the Hewlett Parties successfully have alleged that HP bought votes from Deutsche Bank with corporate assets and because no steps were taken to ensure that the shareholder franchise was protected, HP's motion to dismiss the plaintiffs' vote-buying claim is denied. At trial, the plaintiffs will have the significant burden of presenting sufficient evidence for me to find that Deutsche Bank was coerced by HP management during their March 19, 2002 telephone conference into voting 17 million shares in favor of the proposed merger and that the switch of those votes was not made by Deutsche Bank for independent business reasons. 

CONCLUSION

            Based on the foregoing reasons, I deny HP's motion to dismiss. The Hewlett Parties' complaint adequately pleads claims under 8 Del. C. §  225(b) sufficient to withstand a motion to dismiss. They are entitled to a judicial determination of the validity of certain votes cast at HP's March 19, 2002 special stockholder meeting concerning the proposed merger of HP and Compaq. Whether the Hewlett Parties can meet their burden of proving their claims must await the trial on the merits, presently scheduled to commence in this Court on April 23, 2002. 

IT IS SO ORDERED.

² Hewlett has also been a director of HP for approximately 15 years and is the son of the late William R. Hewlett, one of HP's founders.

⁵ In the seminal Delaware case on vote-buying, Schreiber v. Carney, the Court recounted the history of challenges to vote-buying agreements in Delaware jurisprudence. 447 A.2d 17, 23-26 (Del. Ch.1982). The Schreiber Court noted that earlier cases "had summarily voided the challenged votes as being purchased and thus contrary to public policy and in fraud of the other stockholders." Id. at 23 (citing Macht v. Merchants Mortgage & Credit Co., 194 A. 19 (Del. Ch.1937); Hall v. Isaacs, 146 A .2d 602 (Del. Ch.1958), aff'd, 163 A.2d 288 (Del.1960); and Chew v. Inverness Mgt. Corp., 352 A.2d 426 (1976)). The Court noted that all of the cited cases "emphatically stated that vote-buying was against public policy but failed to discuss the reason why, other than because of the obvious presence of fraud." Id. In attempting to discern the bases for the result in those cases, the Schreiber Court examined the cases cited by Macht (all from other jurisdictions) as support for voiding the challenged votes. Two principles were apparent from those cases. First, those cases held that vote-buying was illegal per se if that agreement was entered into for the purpose of either defrauding or disenfranchising other shareholders. Second, they indicated that vote- buying was illegal per se "as a matter of public policy, [because] each stockholder should be entitled to rely upon the independent judgment of his fellow stockholders." Id. at 24.

⁷ [Schreiber] at 25-26.

¹⁰ Significantly, the vote-buying at issue in Schreiber was ratified in an independent and fully informed vote of the disinterested shareholders. Such ratification carries substantial weight when the Court is determining whether a vote-buying arrangement has a deleterious effect on the shareholder franchise, even if the vote-buying transaction is subject to a test of intrinsic fairness.

¹² HP's contention at oral argument that, even if there was an agreement, corporate funds were not used to purchase Deutsche Bank's vote because all that is alleged is that Deutsche Bank was promised "future business" is less than convincing. That future business with Deutsche Bank would necessarily have to be paid for with corporate funds.