Updated from 7:43 a.m. EST
Silicon Valley's longest-running soap opera will come to a climax of sorts Friday night, when the holders of more than 370 million shares of
finally decide if they want to sell their stake to
for $24 a share.
The campaign ended in much the same way it began nearly 18 months ago, amid a welter of name-calling, conflicting claims and deep personal bitterness. One thing the last hectic days of combat lacked, however, was a clear handle on who's really ahead.
For its part, PeopleSoft preferred to play the underdog, telling investors and reporters that it expects to lose this round of the vote. "We're thinking Oracle will come in with about 65% of the shares tendered," said one source close to the target company. Oracle sources, on the other hand, told reporters "it's too close too call," and laughed at PeopleSoft's claims.
Spin and counter-spin aside, the market itself appears undecided. Shares of PeopleSoft popped when Oracle raised its offer by $3 last month, but they have been in a holding pattern during November. If traders were more certain that Oracle would prevail, shares of PeopleSoft would climb closer to the offer price. If a PeopleSoft victory looked likely, shares would be falling. Some analysts think the stock will trade as low as the midteens if the $8.8 billion hostile takeover fails.
When pressed, however, buy-side sources, who carefully didn't stick their necks out by allowing their names to be printed, generally believe Oracle has the edge. Sell-siders were more willing to go on the record, and mostly on Oracle's side.
SG Cowen software analyst Drew Brosseau thinks it's more likely that a majority of PeopleSoft shareholders will tender their shares to Oracle. "You certainly don't lose anything by tendering," Brosseau noted. He said it's a pretty simple decision when investors "stare at the choice between $24 in cash on Friday or a high-teens stock price on Monday."
"There's clearly been a premium built into the stock because of the Oracle takeover," Brosseau said. His firm hasn't done banking with Oracle and PeopleSoft, but is recommending both stocks -- specifically PeopleSoft because of the takeover.
If Brosseau is wrong and a majority of shares aren't tendered, Oracle says it will walk away from the struggle. But even if he's right, the battle is not over. PeopleSoft executives have already called the tender offer "a straw poll" and promise to wage a proxy fight at the company's next shareholder meeting, expected in early spring.
Since PeopleSoft expects the fight to continue for some time, it will do everything possible to be sure its fourth-quarter results are strong.
But the company fears that customers will stop buying software if they are surprised by an overwhelming vote in favor of Oracle. Rather than risk that, the company is "inoculating" customers and the employees who sell them the software against a big defeat.
Oracle, of course, would like to score a decisive victory, and by poor-mouthing its own strength, hopes to encourage every possible shareholder to tender. A big victory would also give Oracle another argument to convince a Delaware judge that he should force PeopleSoft to drop its poison-pill anti-takeover defenses.
To be sure, both sides have a base of fairly certain votes. Approximately 25% to 30% of the outstanding shares of PeopleSoft are held by arbitragers or arbitrage-related institutions that have little to lose by tendering. Additionally, Capital Guardian Trust, which owns 10.2% of shares, plus a number of smaller funds holding another 2% have announced their intention to "vote" for Oracle.
PeopleSoft's management can count on Private Capital Management to tender their 9.6%, and the tally grows to nearly 20% when the votes of insiders and others who have announced are added.
A big question mark: How will the index funds, which control approximately 10% of the shares, vote? Although there's some confusion about whether managers of index funds can tender at all, William Lawlor, who heads the M&A practice of the Philadelphia-based law firm Dechert LLP says there's no reason why index funds as a class could not tender, but whether they will is unclear. "Several index funds are passive because they are buying a composite of companies and do not look at individual company dynamics, (but) others approach it on a case-by-case basis, consistent with their investment charter," he said.
Sanford C. Bernstein analyst Charlie Di Bona believes the outcome of the tender will be close. "I think it's almost too close to call, but there's a slight bias toward getting them
PeopleSoft shares," he said. "The price is generous enough and a lot of institutional investors either will want the $24 or at least will want to keep Oracle in the game."
Di Bona acknowledged it's difficult to say how many PeopleSoft shareholders are tendering shares in the hope Oracle eventually raises the bid -- something he opposes. But he noted that Oracle will lose even more credibility if it raises its bid, which Oracle has called its "best and final offer." Oracle already has reversed course once, telling a Delaware judge it could lower its bid and then raising it.
Caving again could hurt Oracle's plans for future acquisitions, Di Bona said. "They've already hurt their credibility, and you don't need to throw what's left of it out the window," he said. (Di Bona has an underperform rating on PeopleSoft and outperform rating on Oracle; his firm doesn't do investment banking but its parent, Alliance Capital, holds PeopleSoft shares.)
There's one other twist: At least some of the shareholders who are going to tender are not convinced that $24 a share is the best they can get, no matter how many times Oracle says the offer is "its best and final." You'll hear how the vote came out by late Friday night. But you can count on the war to rage for another three months.
Staff reporter Ronna Abramson contributed to this article.