Icahn, Ellison Unlikely Allies
in BEA Buyout Battle"> BEA is not in an enviable position. The company is caught between the cross hairs of two legendary corporate antagonists: Larry Ellison and Carl Icahn. Ellison, as the CEO of Oracle, pursued and won perhaps the only hostile takeover battle in the history of the software industry with its bitter acquisition of PeopleSoft and he may be looking for a repeat performance with BEA. Icahn, as an institutional and personal investor, is notorious for putting public companies on the spot, threatening proxy battles if change isnt brought about to his liking.On Monday BEA released a letter, addressed to Mr. Icahn, which made its intentions clear: BEA is for sale, but not at what it considers to be bargain basement prices. The question now is who will winOracle, Icahn or an unknown bidderand at what price? "It is important that there be no misunderstanding of the Boards position," said BEAs letter to Icahn. "We are opposed to selling the company at $17 per share. We are not opposed to selling the company." BEA is requesting $21 per share, a price that Oracle has deemed "impossibly high" and that Icahn, who owns about 58 million shares of BEA, referred to as a "management entrenchment tactic, not a negotiating technique." Icahn also said that BEAs board should consider itself on notice for failure to both file quarterly financial reports since April 2006backdating has been an issueand for neglecting to hold an annual shareholders meeting in 15 months. "You should have no doubt that I intend to hold each of you personally responsible," Icahn wrote to BEAs board of directors. Read more here about BEAs counter offer to Oracles $17 per share bid. Icahn could choose to fix the companys perceived management problems by acquiring the company himself. As both an institutional and a personal investor, Icahn has three major investment means. The first is Icahn Partners, a hedge fund that manages about $7 billion in assets and typically invests minority stakes in public companies and then pushes for changeand often creates some fairly lasting growth in the companys stock in the meanwhile. He also owns a holding company, American Real Estate Partners, which buys beleaguered companies and fixes them up for later sale. Finally, Icahn invests personally in companies across a broad spectrum, from pharmaceutical manufactures like ImClone (he owns a majority stake) to telecommunications providers like XO Communications, which he also owns a stake in. In its letter Monday, BEAs board intimated that it is has another buyer in the works, and reiterated the rationale behind pricing the company at $4 over Oracles offer. "In fact, we are currently exploring ways to maximize shareholder value, including the possible sale of the company," reads the letter. "The reason that Oracles $17 per share proposal is unacceptable to the Board is because it significantly undervalues BEA, and consistent with our fiduciary duty we will continue to vigorously oppose a sale to Oracle or anyone else at that price in order to protect the interests of all BEA shareholders." Analysts have suggested potential suitors including SAP, Hewlett-Packard and IBM most notably. SAP said in media reports Monday that it is not interested in buying BEA. Commitments from any other potential buyers, including HP and IBM, have not been forthcoming. Oracles pitch for BEA highlights a potentially hot quarter for acquisitions. Click here to read more. In a research note released Monday, Citi Investment Research analysts John Reilly Walsh and Kent Schofield wrote that Oracles offer of $17 per share was fair. "We see the $21 price point set by BEA as significantly raising the risk for an acquirer to have the deal be economically attractive." Both analysts suggested previously that Oracle could pay as much as $20 per share and still make out. The analysts posed the question thats on everyones lips: Whats next for BEA? "A proxy battle and lawsuits are likely if no other bidder emerges in short order," wrote Walsh and Schofield. "Investor Carl Icahn has indicated the board should let the shareholders decide if and at what price the company should be sold and has threatened to sue and launch a proxy battle for control of the company." If a proxy battle unfolded where Icahn won control of BEAs boardalong with a say in who the company is sold tohe and Ellison would likely stand to win. Page 2: Icahn, Ellison Unlikely Allies in BEA Buyout Battle
On Oct. 28 BEAs board likely ticked off both camps. It let Oracles $17 per share bid for BEA slide by the wayside and apparently dismissed Icahns threats of a lawsuit that would force an annual shareholders meeting and a shareholder vote on a BEA auction.