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A-B sues InBev to block move to boot board
ST. LOUIS POST-DISPATCH
Anheuser-Busch Cos. flexed its legal muscle when it filed a lawsuit to thwart InBev's plan to oust A-B's board of directors. But the suit carried little weight with legal experts, who doubt that the case will persuade a federal judge to clamp down on the Belgian brewer. The suit asks for unspecified costs of bringing the litigation. An InBev spokeswoman didn't have an immediate comment. In the suit, A-B accuses InBev of using false and misleading information to convince shareholders that its $47.5 billion takeover bid is in their best interest. It says this violates federal law because InBev disseminated the information through the mail, telephones and wires as well as through U.S. securities markets. The lawsuit also says InBev "claims" it will make St. Louis the North American headquarters for the combined company. However, the suit alleges that InBev failed to disclose that its current North American operations include a significant business in Cuba and that federal law prevents that business from being managed or supervised from the United States. An InBev spokeswoman told Bloomberg News on Monday that InBev's business in Cuba is managed from Europe. A-B also alleges that InBev has failed to disclose conditions of its financing for the $65-per-share takeover and what changes it would make to A-B's business and operations. It says InBev is well-known for its "aggressive" cost-cutting practices after making acquisitions and that similar efforts would probably be implemented at A-B if there was a takeover. The lawsuit came after InBev filed papers early Monday with the U.S. Securities and Exchange Commission saying it plans to ask A-B shareholders to remove the directors. Two weeks ago, the current board rejected unanimously InBev's bid, calling it financially inadequate. The papers say InBev would file what is known as a consent solicitation statement, which is a request to the shareholders seeking approval of a change within the company. By using this process, InBev hopes to remove the board and replace it with its own slate of directors who would support the takeover. Such a move requires approval by a majority of shareholders. Before shareholders can vote, federal regulators must review the preliminary solicitations. Legal experts said they don't think the A-B suit can stop InBev's efforts and that it is a standard response by a company fighting a hostile takeover action. "I could have come up with the allegations without reading the consent solicitation," Pritchard said. "What they (A-B) are saying is, 'You should have said more, so it's misleading.' You're not going to get a judge to stop (InBev) from soliciting the consent with that." Samuel Buell, a securities law professor at Washington University, agreed. Judges are reluctant to interfere in what is essentially a financial transaction, especially if there is no evidence of serious wrongdoing that is irreparable without legal intervention, he said. "Since this is ongoing, it's not clear that anyone has been harmed at this point," he said. However, the suit might buy time for A-B to come up with a different plan or find another suitor, the professors said. . Anheuser-Busch said Tuesday that disclosure of more information was a key reason for the lawsuit. The suit will "help its shareholders gain more complete and accurate information about InBev's unsolicited and nonbinding proposal to acquire Anheuser-Busch," said Gary L. Rutledge, A-B vice president of legal and government affairs. The professors gave little weight to the allegation that InBev isn't serious about keeping St. Louis as a North American headquarters because of its Cuban business. The purpose of the accusation might be just to make InBev look bad, they said. "There's some home-towning in this lawsuit," Buell said. Meanwhile, InBev filed a letter Tuesday with Anheuser-Busch requesting that A-B's board set a date to determine which stockholders will have a say in the board removal matter. The slate of replacement directors nominated by InBev includes Adolphus Busch IV, uncle of A-B CEO August A. Busch IV. Under Anheuser-Busch's bylaws, its board will have no more than 20 days after receipt of the letter to set a "record date" — the date on which shareholders of record will be established for a vote on InBev's proposal. A-B's board has 10 days to hold a meeting to determine the date, and then must set one within 10 days of that meeting, according to its bylaws. InBev owns 100 shares of stock in A-B, which allows it to make this request. Though Adolphus Busch IV supports InBev's takeover bid, his brother Andrew Busch offered another opinion. In a statement issued late Tuesday, Andrew Busch questioned the independence of InBev's proposed board and whether such a board could negotiate a deal that is in the best interests of shareholders. "I for one trust the current A-B board to put A-B shareholders first — and have no reason to think that InBev's proposed board members will have the same devotion to A-B shareholder interests," he said. "I am one shareholder who will vote 'no' on any proposal to replace the A-B board with InBev loyalists." gappleson@post-dispatch.com | 314-340-8331 |
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