Comcast Finds Itself Increasingly Hamstrung

"Unlike what we saw with ACA, where they were unwilling to pursue any option, it appears Disney is at least trying to fulfill its fiduciary responsibility and entertain and examine all possible options," said Jon Ornstein, CEO of Mesa Airlines, whose unsolicited bid for Atlantic Coast failed a month ago.

One reason for this is that Disney's board of directors is under siege and wants to show shareholders it will consider anything that will increase value for them. A week ago, Walt Disney's nephew and former director Roy Disney sued the company over a proxy battle, while another group of shareholders sued, alleging that CEO Michael Eisner and the board "are attempting unfairly to deprive plaintiff and other members of the Class the true value of their investment in Disney."

The bottom line is the value of Comcast's bid and whether Disney shareholders feel they're getting their money's worth. Considering that private equity market assessments of Disney's value come in near $32 a share and run as high as $38, when a premium for control is included, Comcast will have to raise its bid or the deal is dead. After posting solid quarterly earnings, Disney shareholders may feel the future is brighter as a stand-alone company in the middle of a recovery.

"We don't see how [Disney's] board takes a price in the $30-to-$35 range, given that the stock can go that high or higher on fundamentals," said Drewry.

Ultimately, Disney's management will control the fate of the deal and may try to squeeze a premium from Comcast behind closed doors. Because of the way that Disney's share base is structured, Comcast will have an extremely difficult time getting them to agree by a consent solicitation or proxy battle.

While the deal may be hostile now, in order to succeed both sides may have to become a whole lot friendlier.

"Disney is something of a unique beast -- it has a very diverse shareholder base. Every mom and pop has 100 shares tucked away in a drawer, so it would be very hard to take the deal directly to shareholders. And Disney holds a lot of stock in its 401(k), which Eisner controls the voting on," said Todd Mitchell, analyst at Blaylock & Partners. "It's hard to put something to the shareholder base and get it passed. You need to have a sanctioned deal."