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QUICKTURN DESIGN SYSTEMS, INC.
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MENTOR GRAPHICS CORPORATION
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1
1 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
2 IN AND FOR NEW CASTLE COUNTY
3 MENTOR GRAPHICS CORPORATION, :
an Oregon corporation, MGS :
4 CORP., a Delaware corporation, :
:
5 Plaintiffs, :
:
6 vs. : Civil Action
: No. 16584
7 QUICKTURN DESIGN SYSTEMS, INC., :
a Delaware corporation, KEITH R.:
8 LOBO, GLEN M. ANTLE, RICHARD C. :
ALBERDING, MICHAEL R. D'AMOUR, :
9 YEN-SON (PAUL) HUANG, DR. DAVID :
K. LAM, WILLIAM A. HASLER, and :
10 CHARLES D. KISSNER, :
:
11 Defendant. :
12 - - -
13 Chancery Courtroom No. 106
Herrmann Courthouse
14 Wilmington, Delaware
Wednesday, October 7, 1998
15 10:19 a.m.
16 - - -
17 BEFORE: HON. JACK B. JACOBS, Vice Chancellor.
18 - - -
19 ARGUMENT ON VARIOUS MOTIONS
20
21 - - -
22
23 CHANCERY COURT REPORTERS
135 Herrmann Courthouse
24 Wilmington, Delaware 19801
(302) 577-2447
2
1 APPEARANCES:
KEVIN G. ABRAMS, ESQ.
2 THOMAS A. BECK, ESQ.
CATHERINE G. DEARLOVE, ESQ.
3 LISA A. SCHMIDT, ESQ.
J. TRAVIS LASTER, ESQ.
4 THAD J. BRACEGIRDLE, ESQ.
LEANNE REESE, ESQ.
5 DOMINICK GATTUSO, ESQ.
Richards, Layton & Finger
6 -and-
FREDRIC J. ZEPP, ESQ.
7 CHRISTOPHER L. KAUFMAN, ESQ.
MARC W. RAPPEL, ESQ.
8 of the California Bar
Latham & Watkins
9 for the Plaintiffs
10 KENNETH J. NACHBAR, ESQ.
WILLIAM M. LAFFERTY, ESQ.
11 Morris, Nichols, Arsht & Tunnell
-and-
12 DAVID J. BERGER, ESQ.
JILL L. NISSEN, ESQ
13 of the California Bar
Wilson Soncini Goodrich & Rosati
14 for the Defendants
15 - - -
16
17
18
19
20
21
22
23
24
3
1 THE COURT: Good morning.
2 MR. NACHBAR: Good morning, Your
3 Honor. There are, I think, three motions this
4 morning, a motion for summary judgment, a motion to
5 compel and a motion to strike. I guess I would seek
6 the Court's guidance on how to proceed. It struck me
7 that the motion to strike perhaps ought to be heard
8 first, because that, conceivably, could impact the
9 summary judgment motion.
10 The motion to compel probably should
11 be heard last, I would think, since if Your Honor
12 were to grant summary judgment, that motion would be
13 moot.
14 THE COURT: I agree with you. We had
15 scheduled -- I thought we scheduled the motion to
16 compel for this afternoon, depending on the outcome
17 of this motion.
18 MR. NACHBAR: I think there was some
19 confusion, but I think Your Honor has just clarified
20 it. We appreciate that.
21 THE COURT: But I would like to hear,
22 first, the motion to strike.
23 MR. NACHBAR: Yes, Your Honor.
24 THE COURT: Before we proceed,
4
1 however, are there any introductions?
2 MR. MONHAIT: Yes.
3 MR. ABRAMS: Good morning, Your
4 Honor. I would would like to introduce to the Court
5 three of my colleagues from Latham & Watkins.
6 Mr. Jack Zepp, Mr. Christopher Kaufman and Mr. Marc
7 Rappel are with me today.
8 THE COURT: Good morning, gentlemen.
9 MR. MONHAIT: Your Honor, I've
10 submitted a motion for the pro hac vice admission of
11 Stanley Bernstein, on behalf of plaintiff Howard
12 Shapiro.
13 THE COURT: Very well.
14 MR. MONHAIT: Thank you, Your Honor.
15 MR. NACHBAR: Your Honor, I would
16 like to introduce David Berger and Jill Nissen, of
17 the firm Wilson, Soncini Goodrich & Rosati. Mr.
18 Lafferty, you know.
19 The motion to strike relates to a
20 document entitled "Affidavit of Erich Barke," I guess
21 he pronounces it. In fact, that document is not an
22 affidavit. It's a statement. It's not under oath.
23 It's not under penalty of perjury. It's undated. We
24 don't know where it was signed. The signature wasn't
5
1 witnessed. In the eyes of the law, it's a piece of
2 paper, nothing more.
3 Moreover, it's not even clear that
4 Mr. Barke even knew that his quote/unquote statement,
5 which is what he calls it, was going to be used in
6 any court proceeding.
7 THE COURT: You are saying that the
8 document that was filed with the Court has no
9 signature?
10 MR. NACHBAR: It has a signature.
11 THE COURT: But no acknowledgement.
12 MR. NACHBAR: No acknowledgement.
13 Correct. And it's -- I don't know the exact number
14 of pages. What it consists of is a cover page that
15 bears a Richards, Layton & Finger tag line, word
16 processing tag line, that says "Affidavit." The
17 second -- it's unfaxed. It was printed here in
18 Wilmington, it appears.
19 The next several pages, two or three
20 pages, whatever it is, appear to have been faxed from
21 somewhere in Europe. And those are entitled
22 "Statement." No affidavit, nothing. No caption.
23 Nothing to indicate that it was being used in court.
24 And it's a three-page or four-page signed statement
6
1 with some cross-outs in it. There is a signature.
2 It's not under penalty of perjury. It's not under
3 oath. It's not signed before a notary. It's not
4 dated.
5 The final page is a certificate of
6 service, which again has a Richards, Layton & Finger
7 tag line and is a nonfaxed page. It appears that the
8 only thing that -- assuming Mr. Barke in fact signed
9 this, which -- we don't have much reason to trust
10 that, or believe it, but assuming he did, it appears
11 what happened is that somebody either sent him some
12 prepared statement or he prepared some statement.
13 Who knows under what circumstances? Who knows for
14 what purpose? Who knows what he was told? It
15 doesn't appear, at least from the face of the
16 document, that he knew that it was going to be used
17 in court.
18 THE COURT: Well, would it matter if
19 he knew?
20 MR. NACHBAR: I think it would. I
21 think if you know that something is being used --
22 THE COURT: Would it matter if he
23 knew that the document did not have a formal
24 notarization or acknowledgement?
7
1 MR. NACHBAR: No. I think either
2 way, it's inadequate as a matter of law. At least if
3 he knew it was being used in court, there would be at
4 least some indicia of trustworthiness beyond what you
5 have got. You have now -- doesn't even -- he didn't
6 even know it was being used in court, apparently.
7 I agree with Your Honor. The rules
8 are clear. Rule 56 speaks of affidavits. We all
9 know how one does an affidavit. There is a Delaware
10 statute, I believe, that talks about being under
11 penalty of perjury or under oath. For one reason or
12 another, that wasn't followed here.
13 I would also point out that the
14 statement itself isn't very momentous. At most, it
15 says that one director, who's the only nonindependent
16 director on this eight-person board, took a position
17 saying that he didn't want to sell the company. We
18 don't know too much about the context of that, or
19 what he meant.
20 THE COURT: Obviously, it's momentous
21 enough to be the subject of a motion to strike.
22 MR. NACHBAR: Yes, it is. And my
23 only point is that there were seven other people on
24 that board who are independent outside directors.
8
1 THE COURT: Fine. But that goes to
2 the merits.
3 MR. NACHBAR: I agree.
4 THE COURT: That doesn't go to your
5 technical motion.
6 MR. NACHBAR: That is correct, Your
7 Honor. I simply wanted to point that out. The point
8 is that this is a piece of paper, totally unsworn.
9 It's just not acceptable.
10 The other thing that I will say for
11 the record is that I have been informed that
12 Mr. Barke intends to make some further submission,
13 that he is going to make simultaneously to both
14 sides, that I understand is going to withdraw the
15 statement that he has already made. And I guess
16 we'll see that further submission when he makes it.
17 THE COURT: Very well. Are you -- is
18 your motion also addressed to the Mentor Graphics
19 answering brief, or not?
20 MR. NACHBAR: It is. I will let our
21 papers speak to that. I think that's peculiarly for
22 the Court. I don't think I have anything to add to
23 what we have already said.
24 THE COURT: All right.
9
1 MR. NACHBAR: Thank you.
2 MR. LASTER: Good morning, Your
3 Honor. Travis Laster, on behalf of Mentor Graphics,
4 to address the issues raised by the motion to strike.
5 First --
6 THE COURT: Have you filed a written
7 response to the motion to strike?
8 MR. LASTER: Yes, Your Honor. We
9 filed at the end of the day yesterday.
10 THE COURT: I never got it.
11 MR. LASTER: A courtesy copy was sent
12 to Your Honor this morning. I apologize if it didn't
13 arrive at your office prior to this proceeding, but
14 it was sent over.
15 THE COURT: Well, as I said, I never
16 received it. And it might be more orderly if I could
17 take some time to read it.
18 MR. LASTER: Certainly, Your Honor.
19 I could hand up a copy right now?
20 THE COURT: All right. All right.
21 At the risk of delaying this proceeding, but in order
22 to make it more orderly, I'm going to recess for ten
23 minutes.
24 MR. LASTER: That's fine, Your Honor.
10
1 Thank you.
2 (Recess at 10:29 a.m.)
3 MR. LASTER: Your Honor, once again,
4 Travis Laster, to address the motion to strike. I
5 would like to begin by apologizing to the Court.
6 Mentor's answering brief did exceed the page
7 limitation set forth in Section -- in Rule 171. A
8 motion to exceed page limitations should have been
9 filed. It was not.
10 THE COURT: Why not?
11 MR. LASTER: It was counsel's
12 oversight, Your Honor. Clearly should have been, and
13 we apologize to the Court for that oversight. I
14 would simply point out that we did believe that the
15 additional pages were necessary to address the issues
16 contained in the briefs.
17 The opening brief of Quickturn
18 contained repeated statements that there was no
19 record evidence on certain issues. As shown by the
20 more than five hundred cites in our answering brief,
21 there indeed was ample record evidence on those
22 issues. And by containing that information in the
23 answering brief, we avoided the need to submit
24 detailed factual affidavits in support of our brief.
11
1 THE COURT: Was this brief printed?
2 It looks like it was.
3 MR. LASTER: Yes, Your Honor. It was
4 printed. That's actually an ironic result. The
5 printing actually increased the length of the brief,
6 because rather than being printed in twelve point
7 type -- rather than in eleven point type, it was
8 printed in twelve point type. It wouldn't change the
9 final violation of 171. It would have weighed in at
10 about 70 pages. But yes, Your Honor, that is what
11 happened.
12 THE COURT: Well, it's impossible for
13 me to translate a single -- an 86-page single-spaced
14 brief into the length that would have resulted had
15 the brief been filed in conformity with the rules
16 requiring double space and whatever the typeset
17 normally is. But what I do not understand is why,
18 since your firm, which practices before the Court all
19 the time and is certainly cognizant of the rule, did
20 not take the trouble to inform the Court in advance
21 of what it was doing.
22 MR. LASTER: Yes, Your Honor.
23 THE COURT: I appreciate the apology,
24 but I would like some explanation.
12
1 MR. LASTER: Rule 171 does provide
2 for printed briefs. But Your Honor is exactly right,
3 that a motion to exceed page limitations should have
4 been filed.
5 All I can say is that in the pressure
6 of preparing the brief, it was overlooked. And
7 certainly, this will be something that I, personally,
8 having had the privilege to stand before Your Honor
9 right now, will certainly remember in the future and
10 make sure that it's -- that a motion to exceed page
11 limitations is filed if ever there is a risk that we
12 would be exceeding the requirements of the rule.
13 THE COURT: All right. Would you
14 address the affidavit?
15 MR. LASTER: Yes, Your Honor. The
16 second issue raised by Quickturn's motion is a
17 request that the Court strike the affidavit of Erich
18 Barke. As counsel mentioned in his presentation,
19 Quickturn believes that the affidavit -- contends
20 that the affidavit is not momentous. We suggest to
21 Your Honor that it is indeed momentous, that it goes
22 directly to Mr. --
23 THE COURT: It isn't relevant whether
24 it's momentous or not. The question is: Does it
13
1 conform to the technical requirements?
2 MR. LASTER: That's correct, Your
3 Honor. That's correct. Passing over the substance
4 of the affidavit, we do believe that it conforms to
5 the technical requirements. There are two rules on
6 point. Those are Rules 43 and 56 of the Court of
7 Chancery rules. Rule 56(e) provides that supporting
8 affidavits "shall be made on personal knowledge,
9 shall set forth such facts as would be admissible in
10 evidence, and shall show affirmatively that the
11 affiant is competent to testify to the matters stated
12 therein." We meet -- I'm sorry.
13 The affidavit submitted, Your Honor,
14 meets each of these three requirements. First, the
15 affidavit makes clear that Professor Barke made his
16 statements based on personal knowledge. Indeed,
17 paragraph one of the affidavit, Professor Barke
18 states, "The following true statements are based on
19 my personal knowledge."
20 Doctor Barke also was a party to the
21 conversation about which his affidavit deals. And
22 under the Ayres v. Jacobs case, which we cited in our
23 papers, that is sufficient to meet that first
24 requirement.
14
1 The second issue is whether the
2 affiant is competent to testify to the matters stated
3 therein. Again, we don't believe there is any
4 dispute over Doctor Barke's competence. He has
5 firsthand knowledge of the statements. And indeed,
6 I'm informed that Quickturn was engaged in desperate
7 efforts over the weekend to get Doctor Barke to
8 submit additional statements.
9 Given that fact, I don't think that
10 his competence can be in dispute. Moreover, he is a
11 distinguished professor at a major research
12 institution. He gives scholarly presentations on EDA
13 issues all the time. He is knowledgeable about the
14 subject matter of his affidavit, and he is affiliated
15 with Quickturn.
16 THE COURT: Suppose Doctor Barke had
17 been called as witness, to testify as a witness in
18 court in this case, about the subject matter of his
19 affidavit or statement, whatever it may be, and he
20 was not put under oath but simply started talking
21 from the witness stand. Would that statement be
22 admissible in evidence?
23 MR. LASTER: Your Honor, that goes to
24 the second rule that governs this issue, which is 43
15
1 sub (d). I understand that for an actual witness
2 giving oral testimony it's sufficient if the witness
3 solemnly declares that his statement is true. And --
4 THE COURT: Does he solemnly declare
5 that his statement is true in the affidavit?
6 MR. LASTER: Your Honor, we believe
7 he does within the requirements of 43(d), which set
8 forth what an affidavit should contain. Doctor
9 Barke, in paragraph one of his affidavit, says "The
10 following true statements are based on my personal
11 knowledge." Now the language of Rule 43(d) is
12 slightly more elaborate and includes adverbs such as
13 solemnly, but this Court has repeatedly eschewed any
14 requirement that magic words be included to validate
15 a legal act that is otherwise clear on its face.
16 We submit that Doctor Barke's
17 statement that "these statements, based on my
18 personal knowledge, are true" is sufficient within
19 the requirements of Rule 43(d).
20 Now Delaware does not have a statute
21 that requires that an affidavit be made under penalty
22 of perjury or under oath. We looked for a statute.
23 There is no such requirement. There is a federal
24 statute on point, but this is an issue of state law,
16
1 an issue of Delaware law. Under Delaware law, we
2 submit that Rule 43(d) sets the standard and that
3 Doctor Barke has met that standard.
4 THE COURT: How do I know that the
5 signature is Doctor Barke's?
6 MR. LASTER: Your Honor, there are
7 two points on that. First, we would submit that the
8 circumstantial guarantees of trustworthiness
9 evidenced by the affidavit are sufficient. It has a
10 fax stamp from Germany. It was submitted by
11 Richards, Layton & Finger. We spoke to Doctor Barke
12 personally. We sent it to Doctor Barke. We got his
13 signature. We then submitted it to the Court.
14 Also, I don't think that, really, the
15 issue of Doctor Barke's signature is in dispute; once
16 again, because Quickturn has made such diligent
17 efforts to get Doctor Barke to recant his testimony.
18 They have been contacting him desperately over the
19 weekend.
20 I don't think there is any doubt
21 between the parties that this is Doctor Barke's
22 statement. The only question is whether, as a
23 technical matter, the statement complies with the
24 rules. And we submit that because it meets each of
17
1 the requirements of Rule 56, as well as the
2 requirements of Rule 43, that indeed it does.
3 THE COURT: All right.
4 MR. LASTER: Thank you, Your Honor.
5 MR. NACHBAR: Your Honor, I think
6 this matter is pretty simple. Rule 56(e) provides
7 that supporting and opposing affidavits -- that's the
8 word it uses -- shall be made on personal knowledge.
9 While there is no statute, there are cases that we
10 have cited. There is common law in Delaware. There
11 is a federal statute.
12 Everybody knows that an affidavit is
13 a statement made under oath or under penalty of
14 perjury, signed before a notary. That wasn't done
15 here. The statement doesn't even purport to be an
16 affidavit. It is not an affidavit. And if it were
17 intended to be an affidavit, it would have been very
18 easy to contact Mr. Barke over the weekend and say,
19 "Gee, we forgot to tell you that you have to sign in
20 front of a notary. Would you please do so?"
21 Obviously, that didn't happen.
22 We don't know what this piece of
23 paper is, but under the eyes of the law, it's a piece
24 of paper, and nothing more.
18
1 THE COURT: Is there a dispute about
2 the signature? The argument that was advanced -- the
3 point was made that your side tacitly concedes that
4 Mr. Barke, Doctor Barke, signed the statement.
5 MR. NACHBAR: I have no idea if
6 Doctor Barke signed that statement or not. I have no
7 reason to believe that he did and no reason to
8 believe that he didn't.
9 THE COURT: All right. Well, having
10 read the Barke affidavit -- statement and the briefs
11 on this issue, I am inclined to agree with the moving
12 party, that this affidavit does not satisfy the
13 requirements of an affidavit under the rules of this
14 Court. It is not under oath or penalty of perjury.
15 It was not notarized. That is, there is no
16 notarization that attests to the genuineness of the
17 signature.
18 While all of that may be technical,
19 the rules of evidence themselves are technical, but
20 for good reason. Courts render judgments on behalf
21 of and against parties based on evidence. And the
22 sanctity and respect that judgments of this Court or
23 any court are entitled to necessarily depends on the
24 fundamental reliability of the evidence that's
19
1 considered by the Court.
2 For that reason, I feel that there is
3 no choice but to strike the affidavit of Doctor
4 Barke. It would also follow that the Court will not
5 consider whatever arguments are made that are
6 predicated on Doctor Barke's statement.
7 With respect to the plaintiffs'
8 brief, clearly it was filed in violation of our rule
9 that deals with space limitations, and there was no
10 effort made to obtain the expressed permission of the
11 Court to do that. I understand that there were
12 reasons for exceeding the page limit, and had the
13 Court been apprised of the problem and the reasons
14 that are now being argued, at least the Court would
15 have had time to consider what it would do.
16 But under these circumstances, and
17 because the Court is not in a position to sanction a
18 violation of rules without excuse, particularly rules
19 that are designed to ameliorate the burden imposed on
20 the Court by overly long briefs in the expedited
21 proceedings which we are involved in -- and we are
22 involved in many -- the Court feels that it is
23 likewise constrained to grant the relief requested.
24 However, it will do that without -- under certain
20
1 conditions.
2 First, any order striking the
3 plaintiffs' brief will not be entered until after the
4 oral argument. That is, for purposes of the oral
5 argument, the brief will be considered, because the
6 Court has read it. And therefore, the plaintiffs may
7 make whatever argument they see fit, based on the
8 contents of that brief.
9 Secondly, the Court will afford the
10 plaintiffs a reasonable time to withdraw the brief
11 and to substitute a brief that is in compliance with
12 the rule. And we can discuss later what the page
13 limitation should be. While the Court has expressed
14 its inclination -- that is, expressed its inclination
15 to grant the motion, the form of the relief that is
16 granted may be, simply, an order allowing the
17 withdrawal of this brief and the substitution of a
18 brief that is in conformity with the rules. But
19 that's a matter we will attend to later.
20 Anything further before we commence?
21 MR. NACHBAR: Nothing further, Your
22 Honor.
23 MR. ABRAMS: Your Honor, the
24 plaintiffs have pending before the Court a motion in
21
1 limine dealing with the references by the defendants
2 to the act of consulting with counsel. If
3 Mr. Nachbar were to agree now that there will be no
4 references in the argument to any consultation or act
5 of dealing with the attorneys at the Wilson, Soncini
6 firm, I'm prepared to proceed with the summary
7 judgment motion and defer that issue until this
8 afternoon.
9 THE COURT: Mr. Nachbar, I haven't
10 read the motion in limine, quite frankly. I thought
11 that it was an issue that was outside the scope of
12 the summary judgment proceedings. Am I correct on
13 that, or not?
14 MR. NACHBAR: I think it was served
15 late and that it was not on the agenda for today. I
16 can say that I -- it is not a central portion of our
17 defense that we relied on advice of counsel. I think
18 it is one of a number of factors that I may mention,
19 but I don't think it will have any prominence in any
20 argument that I make today.
21 THE COURT: If it was alluded to in
22 your briefs, I just don't recall it, but there are a
23 lot of things I don't recall.
24 MR. NACHBAR: Again, Your Honor, I
22
1 think it's one of a number of factors. I think it
2 probably was alluded to in our brief, and I'm not
3 surprised that Your Honor doesn't particularly recall
4 it, because it's not something that we featured
5 prominently.
6 THE COURT: All right.
7 MR. ABRAMS: The motion was filed on
8 Friday, and I believe we now have an understanding
9 that the fact of referring to counsel or consulting
10 with counsel is not going to be alluded to today, and
11 we are content to allow Your Honor to decide the
12 motion at such time as Your Honor deems appropriate
13 prior to the summary judgment ruling.
14 MR. NACHBAR: One other point, Your
15 Honor. I'm reminded that we did get a call from Your
16 Honor's secretary yesterday, saying that it would not
17 be heard today, the motion in limine.
18 THE COURT: That was my
19 understanding. But it was because I didn't think
20 that the parties had in mind presenting it today, not
21 because I was trying to dictate what would be heard.
22 I gather that is -- that's at least what Mr. Abrams'
23 side had in mind, and I gather you have no objection
24 to that.
23
1 MR. NACHBAR: We have no objection to
2 it being put off to a later time.
3 THE COURT: Very well.
4 MR. ABRAMS: Subject to the
5 conditions I've expressed, that is acceptable to the
6 plaintiffs, Your Honor.
7 MR. NACHBAR: Again, I mean, I may
8 mention the fact that counsel was involved, but I
9 don't really think that is disputed. I mean Your
10 Honor will do with that whatever Your Honor wishes.
11 THE COURT: All right.
12 MR. NACHBAR: Your Honor, the first
13 sentence of Mentor's brief states as follows: "This
14 case raises fundamental questions regarding the
15 ultimate allocation of power within a Delaware
16 corporation between stockholders and directors."
17 We agree with that. For over a
18 hundred years, Delaware courts have struck a balance
19 between the ability of corporate management to manage
20 companies and the ability of stockholders to take
21 action qua stockholders.
22 In the earlier years it came up
23 primarily in things like derivative suits. In the
24 past twenty years, in the context of the takeover
24
1 boom, there has been particular emphasis on
2 preserving this delicate balance.
3 The Court and commentators have
4 recognized that directors do have a role to play in
5 hostile offers. Moreover, allowing a board to
6 fulfill that role has been found by this Court and
7 the Delaware Supreme Court to benefit stockholders
8 and to enhance shareholder value.
9 This Court had occasion to comment on
10 that in the recent Toll Brothers case. There, the
11 Court struck down a dead-hand rights plan. In so
12 doing, the Court recognized that defensive
13 measures -- that delay measures have been upheld.
14 Those that preclude takeovers have generally been
15 not. Toll Brothers is surely a rational balancing
16 point.
17 Some commentators, some
18 practitioners, have said that Toll Brothers goes too
19 far and shifts the pendulum in favor of insurgents,
20 but I don't think that such criticism is warranted.
21 Indeed, permitting unlimited dead hands might make
22 companies takeoverproof, which clearly would not be
23 an appropriate balancing point.
24 But Mentor now seeks to swing the
25
1 pendulum completely in the other direction,
2 completely to the insurgent's side. It seeks a
3 regime under which at least once a year, for all
4 companies, and constantly for any company that, like
5 Quickturn, permits stockholders to call a special
6 meeting, a hostile offerer can elect its own nominees
7 and consummate its offer, and the incumbent board is
8 essentially defenseless. Moreover, it asks the Court
9 to dismantle defenses at a time when it indicates
10 that it's considering higher offers, or might
11 consider higher offers, and hasn't necessarily even
12 put its best offer forward.
13 The implications of this new regime
14 would be a radical departure from our Court's
15 takeover jurisprudence and would have staggering
16 consequences both in the world's perception of
17 Delaware law and in the underlying reality.
18 We know that in contested elections,
19 10 to 20 percent of the shares are typically not
20 voted. What Mentor seeks now is a regime in which an
21 offeror can plan its offer months in advance, as the
22 undisputed record shows that Mentor did here, and
23 then strike at any time with a hostile offer, a proxy
24 solicitation, litigation in two courts, all of which
26
1 Mentor did here within 24 hours, and according to
2 Mentor, its 45-day blitzkrieg can be successful. And
3 if the offeror happens to own 15 percent of the
4 company, for example, and 80 percent of the
5 stockholders show up, then they only need an
6 additional 25 percent to prevail. So under their
7 regime, an offer, blitzkrieg 45-day offer, will
8 succeed if as few as 25 percent of the public shares
9 favor it.
10 And in Mentor's world, the incumbent
11 board would be powerless even to slow down the
12 insurgents, unless perhaps, maybe, if it immediately
13 agreed to auction the company, they might concede
14 that you could slow things down for a month or two
15 months. That's not the balance that Delaware law has
16 followed to date, and it shouldn't be the balance
17 going forward.
18 Now we are here today on Quickturn's
19 motion for summary judgment. There has been an
20 extensive discovery record. It shows beyond any
21 factual dispute, first, that Quickturn's board fully
22 considered Mentor's offer over three lengthy
23 meetings, got advice from professional advisors,
24 selected with reasonable care, as contemplated by
27
1 Section 141 of the Delaware Code.
2 Second, the Quickturn board
3 determined that Mentor's offer was inadequate, and
4 was also contrary to the best interests of
5 Quickturn's stockholders, and posed a threat to
6 corporate policy and effectiveness;
7 Third, that the Quickturn board took
8 the two defensive actions that I think here are
9 undisputed, the bylaw amendment and the rights plan
10 amendment. The effect of these, either alone or
11 together, is neither preclusive, nor coercive.
12 THE COURT: Well, doesn't that depend
13 on the factual circumstances?
14 MR. NACHBAR: Yes, it does, but the
15 facts are undisputed, as I'll explain in a moment.
16 There is no record evidence that this will coerce or
17 preclude anybody. Indeed, the record out of
18 Quickturn's own -- I'm sorry -- out of Mentor's own
19 mouths is that these things are not coercive or
20 preclusive.
21 THE COURT: Suppose there were
22 evidence that offers that are required to be held
23 open as long as nine months create financial burdens
24 and financial risks on bidders, with the result that
28
1 in most cases, bidders are forced to drop the offer?
2 MR. NACHBAR: Well --
3 THE COURT: Suppose there is factual
4 evidence on that point.
5 MR. NACHBAR: I suppose -- I'm trying
6 to think of this, because you are asking a
7 hypothetical that isn't this case. Moreover, you are
8 asking a hypothetical about cases generally.
9 THE COURT: The other side says it is
10 this case. They say there is evidence. We'll find
11 out whether that's right. But if there is --
12 assuming that there is, don't we have a factual issue
13 that would have to be tried?
14 MR. NACHBAR: If they had evidence
15 that in this case stockholders were going to be
16 coerced or there was going to be -- their offer were
17 going to be precluded and we had contrary evidence,
18 then I think you would have a factual dispute.
19 Again, I mean, you know, there has to
20 be at least evidence that rises to a Rule 56
21 threshold. They could have put in an affidavit of
22 their proxy solicitor. They chose not to do that.
23 They could have put in an affidavit of their banker.
24 They didn't do that, because their banker said that
29
1 the money will be available. They could have put in
2 an affidavit of their financial advisor. But again,
3 they didn't do it, because the fact of the matter is
4 that their offer will still be here in July. I'll
5 get to that and explain why that's the case and why
6 the record shows that.
7 So there isn't a factual dispute. I
8 mean the other side makes lawyers' arguments about
9 what might happen in some other case, but that's not
10 this case. Here, there is no factual dispute. We
11 are only dealing with one offer. We are dealing with
12 Mentor's offer.
13 THE COURT: All right. Just so the
14 record is clear, your contention that there is no
15 factual dispute essentially rests on what your side
16 contends is the absence of any evidence that the
17 nine-month delay that's built into the combined
18 poison pill and bylaw amendment -- that there is no
19 evidence that that delay would preclude the offer by
20 creating unacceptable risk to the bidder.
21 MR. NACHBAR: Correct. No evidence
22 sufficient to meet the Rule 56 standard. I mean
23 again --
24 THE COURT: Does that mean no
30
1 evidence, or does that mean some evidence, but not
2 good enough?
3 MR. NACHBAR: Well, it means no
4 credible evidence within the parameters of Rule 56.
5 Let me give you an example.
6 If somebody speculates, "Well, under
7 certain circumstances I haven't thought about, it
8 could have some effect," that's not evidence to
9 overcome Rule 56. That's speculation. So in Your
10 Honor's question, is that some evidence, I don't
11 know, because I don't know what is in Your Honor's
12 head. I do know that that's not evidence sufficient
13 to create a factual dispute under Rule 56. That's
14 the distinction I'm drawing, because our motion is
15 under Rule 56.
16 One other thing that I note. That is
17 that the plaintiffs have not cross-moved for summary
18 judgment. There is, thus, substantial corroborating
19 evidence that Quickturn could have submitted, but did
20 not, as there are no factual disputes. In our
21 judgment, anyway, such submissions are not necessary
22 at this juncture. If the case goes forward,
23 obviously, there would be a lot more evidence.
24 THE COURT: I'm not sure what
31
1 inference you are asking me to draw from the fact
2 that there was no cross-motion for summary judgment.
3 MR. NACHBAR: I'm not asking for any
4 inference whatsoever. I'm simply pointing out that
5 if the motion were to be denied, I don't think the
6 Court is in a position to grant summary judgment to
7 the other side on any issues, because they haven't
8 moved for summary judgment, and we haven't submitted
9 affidavits that we no doubt would have submitted had
10 they so moved.
11 Turning now to the merits, Your
12 Honor, the board fully considered Mentor's offer.
13 That's undisputed. It had ten days under the federal
14 securities laws to file a 14D-9 setting forth its
15 response.
16 In that time period, there were three
17 lengthy meetings. The company hired advisors. There
18 is no real dispute that the advisors were chosen with
19 care. The record, again undisputed, reflects there
20 was extensive discussion about who to hire. And
21 there were certainly good grounds for retaining the
22 advisors who were retained.
23 THE COURT: Let me just focus on one
24 part of that record, although this may trail off into
32
1 the subject matter of the motion to compel.
2 Were minutes prepared for the three
3 meetings that you just referred to?
4 MR. NACHBAR: Yes, they were, Your
5 Honor.
6 THE COURT: Are they in the record?
7 MR. NACHBAR: Yes, they are. I can
8 get you the appendix cites, but they are in our
9 appendix and, no doubt, the other side's appendix, as
10 well.
11 THE COURT: All right. So the record
12 would include the minutes of those meetings, whatever
13 documents were shown to the board at those meetings?
14 MR. NACHBAR: Correct.
15 THE COURT: And the depositions of
16 whichever directors were taken --
17 MR. NACHBAR: Correct.
18 THE COURT: -- in connection with
19 those meetings?
20 MR. NACHBAR: That is correct.
21 THE COURT: All right.
22 MR. NACHBAR: The record also
23 contains the 14D-9, which is the direct result of
24 that series of three meetings, that communicates to
33
1 the stockholders the actions that the board took.
2 There is also no dispute that eight
3 of the nine -- I'm sorry -- seven of the eight
4 members of Quickturn's board are independent, outside
5 directors. Their qualifications are listed at the
6 outset of our opening brief. And it is a strong
7 board. There are several CEOs. There are
8 distinguished people.
9 The other side doesn't contest the
10 facts. What they claim is that a legal conclusion is
11 that members who were recently added to the board are
12 somehow disqualified, and so they try to disqualify
13 two people that way. And they claim somehow that
14 former officers of the company, one of whom resigned
15 in 1995 and one of whom resigned in 1997, are also
16 not independent.
17 The case law doesn't support either
18 of those. On the former point, they cite no cases.
19 On the later point, they cite a case where in a
20 settlement, in dicta, the Court mentioned in passing
21 that the board was independent because ten of its
22 fourteen members were neither former nor present
23 officers of the company. Hardly a holding.
24 We, on the other hand, cite two cases
34
1 that expressly hold that former officers are
2 independent in the context of responding to a
3 takeover bid. Of course, that is the logic of what
4 constitutes an independent director. Somebody who
5 doesn't have a personal financial interest is
6 independent. And the fact that Mr. D'Amour, for
7 example, may have founded the company, and may have
8 been an officer of the company until 1995, hardly
9 gives him a financial interest in the company
10 remaining independent today. Indeed, the outside
11 directors are large stockholders. If they have any
12 interest, it's in maximizing the value of their
13 shares.
14 The board determined that the offer
15 was inadequate, contrary to the best interests of
16 stockholders, and posed a threat to corporate policy
17 and effectiveness. This is where I think Mentor
18 argues most vehemently. It argues that Quickturn did
19 not have a basis for believing that Mentor's offer
20 was inadequate.
21 It really makes two arguments: One,
22 that management's projections were unrealistic and
23 created simply to inflate the value of the company;
24 and two, that the financial advisor's, Hambrecht &
35
1 Quist's, inadequacy opinion was not adequately
2 supported.
3 Neither of these claims would stand
4 scrutiny or creates a factual dispute. We know that
5 management's projections assumed growth rates of 20
6 to 30 percent. These were not unreasonable, given
7 the undisputed facts.
8 Those facts are, first, 1998, the
9 company's performance was unquestionably depressed.
10 There is great uncertainty in the Asian markets.
11 That is not disputed. As Mr. Lobo pointed out, and
12 other directors have agreed, the Asian manufacturers
13 would have to make additional investments in the
14 future. It doesn't have to do with whether there is
15 an economic recovery in Asia or not. They have two
16 choices. One, they can either go out of the chip
17 manufacturing business --
18 THE COURT: Let me just stop you here
19 for a minute, Mr. Nachbar. Is your argument that the
20 Court must find as a matter of law that the
21 management's projections were reasonable? Or is the
22 argument that the Court should find that the
23 directors were entitled to conclude that -- let me
24 rephrase the question.
36
1 Are you asking the Court to conclude
2 as a matter of law that the directors were entitled
3 to conclude that the projections were reasonable?
4 MR. NACHBAR: Close to the latter,
5 Your Honor. What I'm asking the Court to conclude is
6 that there is no factual dispute that the directors
7 had a reasonable basis to accept management
8 projections.
9 THE COURT: All right. That's what
10 you are arguing now?
11 MR. NACHBAR: That's what I'm arguing
12 now.
13 The other undisputed fact is that the
14 Mercury line of products was a new line of products
15 that was coming on stream. It was a next-generation
16 product. Between those two factors, there was a
17 reasonable basis to believe these projections. More
18 to the point, though, the projections were thoroughly
19 discussed by the board. The record cites are at page
20 nine of our opening brief. And there is no dispute,
21 and there can be no dispute, about that.
22 The directors specifically asked
23 about the 30 percent growth rate after discussion.
24 They were comfortable with those projections. Now
37
1 one can argue that's a bad business judgment and that
2 they shouldn't have -- other directors might have
3 come to a different conclusion.
4 THE COURT: Does the record show
5 whether projections of that magnitude had ever been
6 submitted before by management in a nonlitigation
7 context?
8 MR. NACHBAR: Yes, it does, Your
9 Honor. The company traditionally had had a one-year
10 plan, and it had in the past had growth rates in
11 excess of 30 percent. Now the other side points out
12 that those growth rates weren't always achieved in
13 the past. That is certainly true. Things like the
14 Asian markets problem intervened. But the projected
15 growth rate was actually lower than some prior growth
16 rates that had been presented in the past.
17 THE COURT: Does the record show
18 whether any of the management's growth rate
19 projections had ever been achieved?
20 MR. NACHBAR: I don't know the answer
21 to that. And I don't know that there has been full
22 discovery of all of management's projections going
23 back to the inception of the company. I just don't
24 know.
38
1 As to Hambrecht & Quist, it opined
2 unequivocally that Mentor's offer was inadequate. As
3 a matter of law, the board was entitled to rely on
4 that advice. But contrary to Mentor's belief, that
5 advice was not based, as they claim, solely on
6 uncritical acceptance of management's projections.
7 What their brief says -- I believe
8 this is page fourteen. I don't have it written down,
9 but I think it's my memory. When asked what steps
10 H&Q took to independently verify the projections,
11 which were the cornerstone for H&Q's base case,
12 Mr. Cleveland -- he is the Hambrecht representative,
13 could state only that "...we verified..." -- quote,
14 "...we verified that management..." -- their
15 underlining -- "...felt that their projections were
16 reasonable and made in good faith." That's what
17 their brief says. Mr. Cleveland could only say that
18 he verified that management thought the projections
19 were valid.
20 Here, what is Mr. Cleveland was asked
21 and what he answered, two pages later, in the same
22 deposition:
23 "Question: Aside from what you just
24 testified to, is there other due diligence H&Q
39
1 performed in order to satisfy itself as to the
2 reasonableness of management's projections?
3 "Answer: Yes.
4 "Question: Could you describe that,
5 please?
6 "Answer: We would look at
7 independent market estimates of the size of the
8 markets that were addressed by Quickturn and its
9 products. We looked at the historical performance of
10 Quickturn financially, and in particular the
11 performance of Quickturn at the time of significant
12 product introductions.
13 "We discussed with management and
14 critically appraised the economic conditions in
15 general, and in particular the economic conditions in
16 Asia which had had a depressing effect on the
17 company's results in the past twelve months.
18 "We reviewed the materials prepared
19 by our own industry analyst and other industry
20 analysts to understand their beliefs about the
21 industry and its potential and its size.
22 "We talked with management and
23 discussed among ourselves the intellectual property
24 position of the company and how much value that might
40
1 have.
2 "There were probably other things we
3 did in connection with due diligence."
4 Mischaracterization of the record is
5 not a basis to defeat summary judgment. Mentor also
6 contends that the Hambrecht & Quist inadequacy
7 opinion relied almost exclusively on management
8 projections. Again, that simply isn't true, as the
9 uncontradicted fact record makes clear.
10 Again, Mr. Cleveland -- I believe
11 this is page 24 through 25. "The question is how did
12 you determine it was inadequate, you mean H&Q?
13 "The Witness: We looked at the
14 company's circumstances, its assets, its intellectual
15 property, its customer base, its recognition in the
16 industry, its historical financial performance, its
17 projections, talked to management about prospects,
18 and then applied all of those inputs into a judgment
19 about the price that had been offered by Mentor and
20 determined that it was not adequate."
21 Mr. Cleveland list abouts eight
22 things that he considered. Mentor says he considered
23 one of the eight.
24 As Section 141 and cases such as Time
41
1 Warner make clear, directors are entitled as a matter
2 of law to rely on the inadequacy opinion of an
3 outside investment banker. That's what happened
4 here. And I suppose if there were a showing that
5 that reliance was completely unreasonable, one might
6 create a factual dispute. But there is no such
7 showing here, and there can be none.
8 Indeed, there is objective evidence
9 that the board was reasonable. For instance, the
10 state of Wisconsin recently -- they are the largest
11 stockholder of Quickturn and Mentor -- recently came
12 out and said that they opposed the offer because it's
13 inadequate. Other industry analysts have said the
14 same thing. Plainly, Hambrecht had a reasonable
15 basis to believe that the offer was inadequate.
16 THE COURT: Is the threat -- that is
17 within the meaning of Unocal and Unitrin --
18 articulated in terms of the inadequacy of the offer
19 from a financial standpoint?
20 MR. NACHBAR: I'm about to get to
21 that. That is one of the threats. That's my point.
22 Inadequacy is one of many. And the other threats are
23 nowhere addressed in Mentor's 86-page brief.
24 For instance, it's undisputed that
42
1 this offer was timed to take advantage of a dip in
2 the market caused by the Asian crisis. While Mentor
3 makes much of the premium to the most recent market
4 price, the fact is, again undisputed, that this is a
5 25 percent discount to the February price of
6 Quickturn stock.
7 Now Quickturn's products, its
8 management, its prospects haven't changed. The
9 market has, we believe temporarily. And we believe
10 for good reason that it's temporary. And there is no
11 conflicting evidence about that. Mr. Lobo, the CEO
12 of the company, testified at length about how the
13 Asian manufacturers are going to have to make
14 investments, and they are going to have to come and
15 buy Quickturn's products. There is no dispute about
16 that. There is no contrary evidence. There is no
17 affidavit saying this is a permanent decrease. There
18 is no dispute about that.
19 THE COURT: Despite all of the
20 learned disputation on that subject that is taking
21 place in the financial press, and in the public
22 media, you would ask this Court to find as a matter
23 of law that the current drop in the stock market is a
24 temporary phenomena?
43
1 MR. NACHBAR: No, Your Honor. I'm
2 not asking that at all. What I am asking, though,
3 is, based on the facts before the Court, to
4 understand that this company sells products to the
5 Asian markets. Because of the turmoil in the Asian
6 markets, this company's sales have been adversely
7 affected. No factual dispute about that. The other
8 side isn't going to get up and contradict that,
9 because they can't.
10 The fact of the matter is that the
11 Asian manufacturers are going to have two choices.
12 They can either invest in new technology or they can
13 close their factories. They can either compete or
14 not compete. If they compete, they are going to have
15 to buy products from Quickturn or from somebody.
16 It's as simple as that.
17 Now also undisputed is that
18 Quickturn's corporate strategy for at least the last
19 three years has focused on product development to
20 enhance its position as a market leader, and
21 importantly, vigorous defense of its intellectual
22 property rights in defense of its market position and
23 in defense of its technology.
24 Undisputed is that it has been
44
1 involved in patent litigation against Mentor in three
2 different courts, as well as before the International
3 Trade Commission for two or three years. It's
4 undisputed that Quickturn obtained injunctive relief
5 preventing Mentor from infringing its patents and
6 preventing Mentor from selling certain products.
7 It's undisputed that Mentor appealed that preliminary
8 injunction, and it challenged the validity of
9 Quickturn's patents.
10 Quickturn, it's undisputed, is
11 seeking $225 million of damages in that patent
12 infringement action, which is approximately, I think,
13 the value of Mentor's offer. It's undisputed that
14 the federal circuit affirmed the grant of injunctive
15 relief and held that Mentor had no standing to
16 challenge Quickturn's patents on August 5th, 1998,
17 and that Mentor commenced this offer one week later.
18 THE COURT: Where is the damage
19 aspect of the patent litigation pending?
20 MR. NACHBAR: I believe it's pending
21 in District Court -- United States District Court in
22 Oregon, I believe.
23 THE COURT: Basically, that's the
24 damage phase of the ongoing patent litigation?
45
1 MR. NACHBAR: That's my
2 understanding, Your Honor.
3 THE COURT: Do you know what the
4 status of that litigation is procedurally?
5 MR. NACHBAR: I think we just
6 submitted our damage claims. I would have to defer
7 to my colleagues in terms of the actual trial date in
8 that action. I just don't know as I sit here.
9 December, I'm told, Your Honor.
10 THE COURT: On the damage issue.
11 MR. NACHBAR: On the damage issue.
12 THE COURT: All right. There is also
13 reference in the briefs to an argument that's
14 supposed to take place in the Delaware District Court
15 later this month. What is that concerning?
16 MR. NACHBAR: There are two motions
17 for preliminary injunction, Mentor's and Quickturn's.
18 Mentor's motion was argued yesterday. And there
19 hasn't been a ruling yet, although I imagine there
20 will be soon. We will present our motion for
21 preliminary injunction later this month. I don't
22 have the date as I sit here.
23 THE COURT: But what is the subject
24 matter of those motions, that disclosure is made in
46
1 connection with -- what is the subject matter?
2 MR. NACHBAR: Your Honor has it
3 correct. It's the disclosures made in connection
4 with the agent designation, solicitation, and the
5 subsequent proxy contest.
6 While we are on that subject, the
7 other side says that we really haven't set a date for
8 the meeting, or we are delaying them out until the
9 end of time, or something. That simply isn't true.
10 We have set a meeting date of January 8th. The
11 meeting will proceed on that date unless the federal
12 court rules that their agent designations were
13 misleading and an appropriate remedy is to vacate
14 that date. But the notion that we haven't set a
15 meeting date, it's repeated throughout their brief.
16 It's simply not true.
17 THE COURT: All right. I'm sure I
18 threw you off track with my questions, but where you
19 were, I gather, was in reciting the facts, all of
20 which bear on your point that the board was
21 reasonably entitled to rely on opinions that it
22 received that the Mentor offer was financially
23 inadequate.
24 MR. NACHBAR: It's beyond that. That
47
1 is certainly one thing that the board considered.
2 The other thing that the board considered is that
3 this offer doesn't take into account Mentor's -- or
4 Quickturn's intellectual property rights and, indeed,
5 poses a threat to corporate policy and effectiveness.
6 We have been --
7 Quickturn has been vigorously
8 defending these rights for three years. It's now
9 achieved a significant victory. And what Mentor
10 wants to do, if it succeeds in this offer, is to
11 effect a 180-degree reversal of Quickturn's strategy.
12 There will be no market leadership for Quickturn, no
13 patent litigation, no defense of rights. Instead,
14 Mentor will acquire the company for cash and will
15 terminate the litigation.
16 There is no question that this is a
17 threat to corporate policy and effectiveness. This
18 entitles, and I think Delaware law says requires,
19 Quickturn to take defensive action under Delaware
20 law. It's interesting that the 86-page brief never
21 mentions the patent litigation, not even once.
22 Now I want to get back to a question
23 that Your Honor asked about earlier, whether there is
24 any real dispute as to whether the effect of these
48
1 defensive actions is preclusive or coercive.
2 There is no testimony that Mentor is
3 going to go away. Indeed, given the patent
4 litigation, it can't afford to go away. I mean it's
5 facing patent infringement damages. It can't sell
6 its products. It's got every incentive to stay
7 involved in this ball game. And it intends to
8 proceed. I don't think there is any dispute about
9 that. It will proceed whether these defensive
10 measures are upheld or not.
11 There is also no evidence of any
12 coercion. I point out at the beginning that coercion
13 in these circumstances is simply illogical. If
14 somebody wants a sale of the company, why would they
15 vote for Mentor's nominees on October 29 but not on
16 January 8? That makes no sense. Similarly, the
17 delayed redemption provision doesn't coerce anyone.
18 If people want the company to be sold, why would they
19 vote against the slate that is committed to the sale
20 of the company?
21 And this issue was addressed four
22 square in the NWA case. And Chancellor Allen said
23 that on the facts there, which were different, he
24 barely saw any threat of influencing the meeting.
49
1 There, there were two slates, both comitted to the
2 sale. One could sell the company immediately. One
3 could only sell the company in six months. The Court
4 said that he didn't really find that that would
5 coerce voters.
6 But here, the choice is clear. I
7 mean our slate isn't committed to the sale of the
8 company. Their slate is. As the Chancellor said in
9 NWA, that presents a clear question. If people want
10 the company to be sold, they will vote for the Mentor
11 slate, whether there is a delayed redemption
12 provision or not.
13 More importantly, though, there is no
14 affidavit of any proxy solicitor saying that the vote
15 is being chilled or people are being coerced.
16 Indeed, the testimony of Mr. Burch is that they are
17 getting more tenders than they thought they would.
18 Finally, Mr. Hinckley, who is the
19 chief operating officer of the company and the
20 architect of this takeover, was asked, "What has been
21 the effect of these defensive measures on your
22 offer?"
23 His answer, "They've increased our
24 expenses, they have slowed the process, and have
50
1 potentially jeopardized the business of Quickturn."
2 That is Hinckley dep at 255.
3 That is it. It doesn't say, "We
4 can't go forward." It doesn't say, "People aren't
5 going to tender." It doesn't say, "They have
6 jeopardized our ability to complete this." All it
7 says is they have increased expenses, which, if
8 anything, is a money damages claim. And they haven't
9 quantified it, so we don't know what it's talking
10 about.
11 Number two, "they have slowed the
12 process." Well, I mean we would concede that these
13 measures that we have taken will prevent them from
14 consummating their offer on October 29, like they
15 would like to.
16 And "they have potentially
17 jeopardized the business of Quickturn"? I don't know
18 what the latter means, other than something may
19 happen to Quickturn's business. But you know, some
20 good things might happen or some bad things might
21 happen. That's not coercive. That's not preclusive.
22 The real question, Your Honor, then
23 becomes, under Unocal and Unitrin, is what the board
24 did reasonable in relation to the threat posed? I
51
1 would say that the actions taken were quite mild.
2 The board, for instance, did not abrogate or abolish
3 the right of stockholders to call an annual meeting,
4 although it could have done so. It didn't sell
5 assets. It didn't do some financial restructuring
6 that would make it difficult or impossible for Mentor
7 to complete its acquisition. All it did is it said,
8 "We are going to give stockholders time to consider
9 this before they have to vote, and we are going to
10 make sure that the new board has at least some
11 reasonable period before it commits to the sale of
12 the company in a self-dealing transaction."
13 THE COURT: What does the record
14 show -- that is, what consideration does the record
15 show was given to the specific period of time called
16 for by the delayed redemption pill? That is, why six
17 months instead of three months or two months or nine
18 months?
19 MR. NACHBAR: I think -- I think what
20 the record shows is that the board thought that that
21 was an appropriate period for directors to get up to
22 speed and decide whether to sell the company or not.
23 THE COURT: What's the source of that
24 statement?
52
1 MR. NACHBAR: The source of the
2 statement or the underlying basis for the directors'
3 belief?
4 THE COURT: What was the underlying
5 basis for the directors' belief, and what is the
6 evidentiary source of that?
7 MR. NACHBAR: The evidentiary source
8 is on page thirteen and fourteen of our opening
9 brief. And I'll read what Dean Hasler, who is dean
10 of a college or law school -- I can't remember
11 which -- had to say about why this was done.
12 "I very much agreed or felt it was
13 very appropriate that if a new board were elected,
14 that they have time to get to know the company, the
15 industry, the market potential of the new products
16 that are just coming on stream, before trying to make
17 a decision as to the fair value of the company and to
18 shareholders. So I was very focused on finding a
19 reasonable period of time, a provision that would
20 permit a reasonable period of time for a new board to
21 make those assessments while still permitting a new
22 board to act. So the elimination of the dead hand,
23 but the addition of a provision requiring, in effect,
24 a waiting period seemed to me a very balanced and
53
1 fair approach."
2 THE COURT: Okay. My question,
3 though, goes to the length of the waiting period.
4 And you can only answer based on the record that we
5 presently have, but to the extent that it sheds light
6 on the subject, my question is why six months versus
7 some longer or shorter period of time?
8 MR. NACHBAR: I think because, as
9 Dean Hasler testified, in the directors' judgment,
10 that was a reasonable period of time for the board to
11 take to become up to speed on the company, its
12 products and its business, and to consummate the sale
13 process.
14 I mean, don't forget that at the end
15 of six months, if the pill is redeemed, the
16 transaction closes. It's not like you begin some
17 process at the end of six months. So there would be
18 some period to get up to speed, to learn the company,
19 to decide what transaction is appropriate to pursue,
20 and then there would presumably be some time
21 necessary to consummate that transaction. The end of
22 the six months, the transaction closes.
23 THE COURT: Does the record indicate
24 whether or not some longer or shorter period -- some
54
1 specific longer or shorter period was considered?
2 MR. NACHBAR: I don't know. I know
3 on the bylaw amendment there were longer periods
4 specifically considered. I'm not sure what the
5 record indicates on the delayed redemption provision.
6 THE COURT: Does the record show who
7 came up with the idea?
8 MR. NACHBAR: Again, Your Honor, I
9 think it arose out of a board discussion. I think it
10 was something that the board felt was fair and
11 appropriate.
12 THE COURT: I understand that. I
13 know you keep on coming back to it. But I'm
14 concerned about who broached the subject, who argued
15 for what position, and what information the board had
16 when it concluded that a six-month waiting period was
17 fair.
18 MR. NACHBAR: I'm not in a position
19 to answer that question. Maybe on reply, I'll know,
20 but I'm not sure that the record indicates who first
21 mentioned six months, as opposed to eight months or
22 five months, or something.
23 THE COURT: Or what the debate was on
24 that point, if any?
55
1 MR. NACHBAR: That's correct. The
2 important thing here is that there are no show
3 stoppers. Neither of these provisions is going to
4 stop a committed offeror like Mentor from proceeding.
5 There is no evidence that it would.
6 THE COURT: Was that issue discussed
7 at the board -- at that board meeting, whether or not
8 a six-month waiting period stacked on to a three-
9 month -- minimum three-month meeting -- special
10 meeting call period would have that effect?
11 MR. NACHBAR: I think it -- I don't
12 know that there was a specific question and answer,
13 but it is very clear from the overall context that
14 the board felt that Mentor was not going away. And
15 the board, you know -- I mean it's clear that the
16 board undertook this with the understanding and on
17 the expectation that this was not going to drive
18 Mentor away, which I think makes sense in light of
19 the patent situation. They can't go away. I mean
20 they can, I suppose, under some circumstances.
21 THE COURT: They could go away and
22 just litigate -- defend the patent damage case. I
23 mean they could go away.
24 MR. NACHBAR: Yes. It's unlikely
56
1 that they would go away. They are not the ordinary
2 bidder. They have an incentive to stay that most
3 bidders don't have.
4 THE COURT: All right. Is there a
5 record on that part of the discussion, whether or not
6 Mentor Graphics would likely go away if they were
7 delayed by nine months?
8 MR. NACHBAR: I don't believe that
9 there is a record specifically of that question and
10 that answer. I think it's clear from the overall
11 tenor of the board's approach that Mentor would be
12 around, and that nobody thought that this was
13 preclusive.
14 THE COURT: All right.
15 MR. NACHBAR: It is -- on Your
16 Honor's specific question, as to who first mentioned
17 six months and what was the debate, the issue was
18 raised. It was discussed with counsel. And the
19 minutes show that the board carefully considered
20 these issues. We have not waived privilege
21 concerning the discussions, but the record is clear
22 that it was discussed, and those citations are in the
23 opening brief.
24 THE COURT: You are asking the Court
57
1 to find that that judgment was reasonable as a matter
2 of law, but you are not willing to disclose the
3 underlying basis for that conclusion that the board
4 drew?
5 MR. NACHBAR: What I'm asking the
6 Court to conclude is that the board acted reasonably
7 in the circumstances. And I think that's
8 different --
9 THE COURT: How can I conclude that
10 when I don't know what the board was told and what
11 the back and forth was?
12 MR. NACHBAR: You know, I think --
13 THE COURT: You may be right, but
14 without knowing what the discussion was, how can I
15 conclude that as a matter of law?
16 MR. NACHBAR: I think at the end of
17 the day, the matter speaks for itself, and the fact
18 of the matter is, it's not preclusive and it's not
19 coercive.
20 Now whether, hypothetically, you can
21 sit there and say, "We had a debate and somebody said
22 nine months and somebody said six months and counsel
23 said this and somebody else said that," at the end of
24 the day, though, what counts is: Is it coercive? Is
58
1 it preclusive? And it's not.
2 THE COURT: Let's test that. Are you
3 saying -- let's assume for purposes of this
4 hypothetical discussion that there was no significant
5 discussion about the -- either the merits of six
6 months versus some shorter period or longer period,
7 and no significant discussion about the impact that
8 the delay would have on Mentor Graphics' offer. Is
9 it your position that if the board did not make an
10 informed judgment but ended up coming out with a
11 result that was neither preclusive nor coercive, that
12 that's enough to save the day?
13 MR. NACHBAR: Well, I -- number one,
14 I think it is. But number two, here there was a
15 discussion. I mean it's not that there was no
16 discussion. The discussion was privileged. I don't
17 understand that a board must waive attorney/client
18 privilege in order to overcome a Van Gorkom claim. I
19 mean I just don't understand that to be the law.
20 The point is that the board met at
21 length, discussed these matters at length, consulted
22 with counsel, consulted with advisors, got advice --
23 THE COURT: My question is whether
24 even if you can argue that the result reached by the
59
1 board complies with Unocal, that that ends the
2 inquiry, or whether the degree of information that
3 the board had is also a relevant inquiry, that could
4 provide an independent ground to invalidate what the
5 board did? I'm reacting to your statement that all
6 that counts is whether or not the board's decision
7 was preclusive or coercive.
8 MR. NACHBAR: I think either is
9 sufficient. In other words, if you didn't get advice
10 and you chose something that was neither preclusive
11 nor coercive, it wouldn't become preclusive or
12 coercive because it had been chosen arbitrarily. Now
13 you might have difficulty on the question of whether
14 it was reasonable in relation to the threat posed if
15 it was arbitrary. But that also would be something
16 that the Court might be in a position to rule on.
17 On the other hand --
18 THE COURT: You are saying that if
19 the -- if the board did not exercise due care in
20 arriving at the result that it reached, but the
21 result was neither preclusive nor coercive, then
22 there may be an absence of due care, but it would not
23 be actionable?
24 MR. NACHBAR: I believe that's
60
1 correct, Your Honor. Yes.
2 THE COURT: All right. Actionable in
3 the sense that the transaction could be enjoined, as
4 distinguished from whether the directors would be
5 personally liable.
6 MR. NACHBAR: Yes, Your Honor. I
7 believe if you do something -- I mean Unocal has two
8 prongs -- or Unitrin actually has two prongs, as I
9 understand it. First is: Is the action preclusive
10 or coercive; second, is it reasonable in the
11 circumstances?
12 Now certainly, I don't think that the
13 process that the board follows has any relevance to
14 whether the action is preclusive or coercive. Let's
15 say the board acted completely negligently. It gets
16 this piece of paper and it says, "We are not going to
17 meet, even. We are just going to do nothing. And
18 our recommendation is to tender, and we don't have
19 any basis for that. That's just what we are doing."
20 No one would say that was preclusive
21 or coercive, yet no one would say that was a very
22 good process. So I think the results are either
23 preclusive or coercive or they are not. I don't
24 think that the process is terribly relevant.
61
1 THE COURT: The reasonableness of the
2 process is not a factor?
3 MR. NACHBAR: In determining whether
4 the action taken is preclusive or coercive.
5 THE COURT: And in determining
6 whether or not for any other reason the actions
7 should be enjoined?
8 MR. NACHBAR: Well, that gets to the
9 next step, which is: Is it reasonable in relation to
10 the threat posed? I haven't quite gotten there yet,
11 but it's where I'm headed next. My point is it's not
12 preclusive. It's not coercive. And what the board
13 did doesn't make it -- what process the board
14 followed doesn't make their action any more
15 preclusive or less preclusive or any more coercive or
16 less coercive.
17 One other thing that I am reminded of
18 on this point is that Mr. Cleveland, from Hambrecht &
19 Quist, testified that he gave advice that six months
20 was reasonable, and that he recommended to the board
21 both the bylaw and the rights plan amendment. That's
22 in the Cleveland transcript.
23 Now turning to the bylaw amendment
24 first, the board perceived -- again, there is ample
62
1 record evidence -- that there was a threat of a
2 stampede or an ambush. Those are the words that the
3 directors used. The board members felt that
4 shareholders should be given a full and fair
5 opportunity to consider this matter. Indeed, it's
6 sort of ironic that Mentor, the undisputed record
7 shows, who is a big player in the industry, who has a
8 lot of expertise, who knows a lot about its
9 competitors, presumably, was considering the offer
10 since May.
11 So it took Mentor approximately three
12 months to decide to make an offer, yet they object to
13 stockholders having ninety days from the call of a
14 meeting to decide whether to accept the offer or not.
15 The bylaw amendment is designed to ensure adequate
16 time. It's similar to a notice bylaw.
17 THE COURT: I'm getting confused. We
18 are talking about the three months -- the three-month
19 delay for the holding of a special meeting.
20 MR. NACHBAR: That's correct, Your
21 Honor.
22 THE COURT: To elect directors.
23 MR. NACHBAR: That's correct.
24 THE COURT: To the extent there is a
63
1 decision on whether or not to accept the Mentor
2 offer, I gather that implicit in your argument is
3 that that decision would take the form of a different
4 decision, which is whether or not to replace the
5 board.
6 MR. NACHBAR: Right. I think as
7 Stahl, Time Warner and other cases recognize, when
8 you have the combined tender offer/proxy contest that
9 is being done here, the election of directors is,
10 really, a vote on whether stockholders want the offer
11 or not. I mean I don't think that anybody is here
12 contending that Mentor would have any chance of
13 succeeding in its proxy contest were it not making a
14 tender offer simultaneously.
15 THE COURT: So the special meeting is
16 really the plebiscite on the merits of the Mentor
17 offer, and then the sixth -- and then if the
18 plebiscite is successful from Mentor's standpoint,
19 then its nominees would have six months to decide
20 whether or not to go ahead and fulfill Mentor's
21 agenda or to do something else?
22 MR. NACHBAR: That's right. It will
23 elect five nominees, who are running on a platform of
24 selling the company to Mentor, paren, subject to
64
1 their fiduciary duties. We take that paren
2 seriously, which is why we have the delayed
3 redemption provision, because we think if they really
4 are going to exercise their fiduciary duties, they
5 are going to need some time, because the record is
6 clear, they know nothing about this company. They
7 don't have any background in the industry or with the
8 company. So we think some period to get up to speed,
9 and some period to effectuate the transaction is
10 appropriate, and we don't believe that there is any
11 record six months is inappropriate or inordinate in
12 any way.
13 THE COURT: How would that work in
14 the real world? If Mentor wins the election, the old
15 directors, the current directors, are gone.
16 MR. NACHBAR: Correct.
17 THE COURT: We have an entirely new
18 board. Who at the company -- that is, who at
19 Quickturn is going to educate the new directors about
20 the proper exercise of their fiduciary duties?
21 MR. NACHBAR: I don't know. I mean I
22 assume that they would hire counsel. I assume that
23 they would get independent counsel, although I don't
24 know what they will do. I have never spoken to any
65
1 of these five nominees. But that's what I presume
2 any newly-elected director would do.
3 In terms of people running the
4 company, some of the senior executives have
5 employment contracts. I assume that some of them
6 would be induced to stay, but I don't know that. And
7 that's something that the new board would have to be
8 in a position to deal with.
9 THE COURT: Is there any record
10 evidence on how this transition would work, if indeed
11 there was a transition?
12 MR. NACHBAR: I'm not aware of any,
13 Your Honor.
14 Going back to the bylaw, it's very
15 similar to a notice bylaw. It's very common for
16 companies to have bylaws that require ninety or even
17 120 days advanced notice of nominations and
18 shareholder proposals. In fact, Mentor has a ninety-
19 day advanced notice bylaw.
20 Now it's disputed if that bylaw would
21 be applicable here. It says that if a meeting is
22 called on less than ten days notice, then you have
23 ten days prior to the call of the meeting to meet the
24 requirements of the bylaw. And it's at least, I
66
1 think, unclear, and probably disputed, how that
2 applies in a stockholder-called meeting like this.
3 The point is that the bylaw amendment
4 is designed to accomplish the same result as the
5 company's preexisting advanced notice bylaw, to give
6 people time to consider all the material facts.
7 And that's all it's designed to do.
8 No one believes -- and there is no evidence that
9 having a meeting on January 8th, instead of October
10 29 is going to significantly impact this offer or
11 Mentor's ability to consummate the offer.
12 Now the delayed redemption provision
13 was enacted at a time when Mentor did not know who --
14 I'm sorry. When Quickturn did not know who Mentor's
15 nominees were. I think the fear was that new
16 directors, with no knowledge of the company, would be
17 under intense pressure to sell to Mentor before they
18 took adequate steps to familiarize themselves with
19 the company. And that fear was realized, because the
20 five directors were subsequently identified, and it
21 turned out that they had no familiarity whatsoever
22 with the industry or with the company.
23 And you know, again, it's sort of
24 ironic that the procedure here for Mentor was to
67
1 start this process in May, leading to an October 29
2 meeting. When they were making the offer, five
3 months was okay for them to make the offer and have
4 it consummated. But yet they object to a new board,
5 with no knowledge of the company or the industry,
6 having six months to consummate an offer.
7 You know, we believe that the delayed
8 redemption provision is, on its face, a reasonable
9 provision, tailored to the threat that Mentor would
10 elect a neophyte board, that would be pressured into
11 selling to Mentor immediately.
12 We believe that --
13 THE COURT: So the purpose of the
14 six-month delayed redemption provision is to assist
15 the Mentor nominees in resisting pressure from the
16 shareholder that nominated them?
17 MR. NACHBAR: To ensure that they are
18 not -- that they have an adequate time to become
19 familiar with the company, its products and its
20 business.
21 THE COURT: The answer to my question
22 is yes?
23 MR. NACHBAR: Well, I'm not sure I
24 would phrase it the way Your Honor phrased it.
68
1 THE COURT: I'm sure you wouldn't.
2 MR. NACHBAR: I think the way the
3 board phrased it and the way Mr. Hasler phrased it is
4 in the record. And I think that's what the record
5 shows.
6 THE COURT: Well, is there something
7 inaccurate about the way I phrased it?
8 MR. NACHBAR: Well, I think it's a
9 question of characterization. And I mean, I'm
10 sticking to what the board said. And Mr. Hasler's
11 statement is the one that I read that's in the
12 record.
13 THE COURT: But isn't the logical
14 implication of that statement that the six-month
15 delay provision is designed, in effect, to protect
16 the directors who would replace the incumbent board
17 from pressure exerted by the stockholder that
18 nominated them in the first place?
19 MR. NACHBAR: Yes, I think it is
20 designed to protect against pressure to do a
21 self-dealing transaction.
22 THE COURT: So what we have, then, is
23 the board, the incumbent board, somewhat
24 paternalistically enacting the delayed redemption
69
1 provision to help out the people who would be
2 replacing them against their will.
3 MR. NACHBAR: I think it's to help
4 out the stockholders of the company, who are faced
5 with a situation where there is enormous pressure on
6 them now, coming from both sides, and electing a
7 board that may not fully protect their interests.
8 Again, the delayed redemption
9 provision is not designed and will not have the
10 effect of precluding a sale to Mentor. It is
11 designed and will have the effect of precluding a
12 sale to Mentor before the board has had a six-month
13 period to consider it. That's what it's designed to
14 do.
15 THE COURT: So if after the six-month
16 period the new board, having considered it, decides
17 to redeem the pill and allow the Mentor offer to go
18 through, does that create some higher level of
19 presumption or inference that that board acted in
20 accordance with their fiduciary duties?
21 MR. NACHBAR: No. I think it merely
22 means that they had enough time to exercise their
23 fiduciary duty. What they did in that time, you
24 know, one hopes is the appropriate thing, but one --
70
1 you know, we don't know too much about these
2 nominees.
3 We would think that any board who was
4 elected would use that time wisely. But if Your
5 Honor's point is that we won't control what they do,
6 that's correct.
7 THE COURT: All right.
8 MR. NACHBAR: We believe that the
9 defendants' actions here clearly pass the relevant
10 test. This is not a Blasius case, despite what the
11 other side says.
12 THE COURT: Your argument there --
13 I'm going to put words in your mouth, but I'm
14 concerned about the time. Nobody is going to be
15 prevented from voting, and nobody is going to be told
16 how to vote.
17 MR. NACHBAR: That's correct.
18 THE COURT: Simply a three-month
19 delay, and will be able to exercise the right to
20 vote.
21 MR. NACHBAR: It's not even three
22 months. Their date is October 29. Our date is
23 January 8. By my count, that is a month-and-a-half,
24 or less. And you know, I think that the Stahl
71
1 against Apple Bancorp case is the one that is most
2 pertinent there, both for its holding and its
3 reasoning. There was a six-month delay, and the
4 Court made the very distinction that Your Honor drew.
5 The other point that the other side
6 raises is that somehow the delayed redemption
7 provision -- not the bylaw amendment, obviously, but
8 just the delayed redemption provision, is invalid per
9 se.
10 Unlike the provision at issue in Toll
11 Brothers, which Your Honor is obviously familiar
12 with, there is no discrimination among board members.
13 There is no prohibition on future board action.
14 There is a regulation of timing of when a future
15 board can take that action, but there is nothing
16 statutorily wrong with that.
17 Advanced notice provisions, for
18 example, say that a board can't call a meeting except
19 on some number of days notice. No one would say that
20 that impermissibly interferes with the right of a
21 future board under 141(a). Similarly, standstill
22 agreements, companies enter into them, and they
23 commit future boards not to undertake certain
24 transactions for a period of time. And those have
72
1 routinely been upheld.
2 Here, there is a narrow limitation.
3 It's akin to a short standstill. It regulates the
4 timing of when a future board could take certain
5 actions. And the case is wholly unlike Toll
6 Brothers.
7 Finally, Your Honor, an essential
8 element of the relief that the plaintiffs seek here
9 is irreparable harm. And there has been no showing
10 of irreparable harm. There is no evidence, as I've
11 said repeatedly, that this is coercive or preclusive
12 and the transaction wouldn't be consummated in the
13 form that it's been proposed.
14 There is some talk about it might be
15 a little bit more expensive. That's not irreparable
16 harm. That's money damages.
17 And the other side really miscites
18 the Unocal case. It says that the Unocal -- the
19 trial court case held as a matter of law that there
20 was irreparable harm there. That's simply not true.
21 There were affidavits from both sides in that case.
22 THE COURT: Let me make sure I have
23 this right. Is it correct that the case is, for your
24 argument, that the ninety-day delay will not be
73
1 preclusive of Mentor's offer or the -- is the
2 evidence that underlies that fact the same evidence
3 that negates any irreparable harm?
4 MR. NACHBAR: Yes, Your Honor.
5 THE COURT: Is there any difference?
6 MR. NACHBAR: I don't think so. I
7 mean the other side haven't articulated -- I think
8 it's their burden to show irreparable harm. I don't
9 think they have come forward and met that burden. I
10 don't know what their irreparable harm is. Maybe
11 they will tell me in answering, and we'll deal with
12 that. There are no affidavits. They have failed to
13 show an essential element.
14 Finally, Your Honor, one point about
15 the timing of a ruling and procedurally where we are.
16 Both sides have purported to notice stockholder
17 meetings, the other side for October 29, our side for
18 January 8. There are now two separate proxy
19 solicitations geared towards two different meeting
20 dates that are proceeding, essentially, side by side.
21 I suppose the other side, in the
22 absence of some ruling, would intend to convene their
23 meeting on October 29 and hold it as a rump meeting.
24 I think there is a lot of confusion in the
74
1 marketplace. I do believe that resolution of that
2 issue would be helpful to all stockholders.
3 Thank you, Your Honor.
4 THE COURT: Thank you. Just as a
5 housekeeping matter, Mr. Abrams, my intent was to go
6 on until 12:30 and then reconvene at 1:30. And I had
7 reserved the rest of the day, but unfortunately, I
8 must conclude no later than a quarter of four. I
9 hope we can do all of this in that time.
10 MR. ABRAMS: Rather than interrupt
11 the presentation and what I assume will be many
12 questions from Your Honor of me, would it be
13 preferable from the Court's perspective to take an
14 early lunch break now? If Your Honor would like, I'm
15 happy to start --
16 THE COURT: I did not know whether
17 Mr. Monhait and his cocounsel intended to make a
18 presentation.
19 MR. BERNSTEIN: We do, Your Honor. I
20 would expect I would follow Mr. Abrams. I would be
21 certainly briefer than Mr. Nachbar. I don't know
22 about Mr. Abrams.
23 THE COURT: We don't have any time
24 for any duplicative arguments.
75
1 MR. BERNSTEIN: Won't be duplicative.
2 MR. ABRAMS: I suspect to have a fair
3 amount to say. I expect Mr. Bernstein will be brief
4 in his presentation.
5 THE COURT: Why don't we go on until
6 12:30, Mr. Abrams? Keep in mind that I don't need an
7 86-page argument.
8 MR. ABRAMS: May it please the Court:
9 Mr. Nachbar, to my knowledge, was not involved in any
10 of the depositions. Perhaps that is the source of
11 his continuing inability to respond directly to Your
12 Honor's questions for record citations.
13 This is an application for summary
14 judgment where the defendants bear the ultimate
15 burden of proof at trial, are required to demonstrate
16 conclusively that they are entitled to a judgment as
17 a matter of law. As I will discuss with Your Honor,
18 there are any number of statements in the record, all
19 of which support our position on the merits and
20 which, therefore, at a minimum create disputed
21 questions of fact.
22 THE COURT: On that point, it would
23 be helpful, Mr. Abrams, if you could identify the
24 disputed issues of fact in connection with what I
76
1 understand are the six master facts that the other
2 side contends are undisputed and that entitle them to
3 judgment as a matter of law.
4 Since they have structured the
5 framework for this dispute in that way, I'll find it
6 most easy to understand if you could respond in terms
7 of that framework; not meaning to preclude you from
8 arguing anything else, but I do need to have your
9 position on those points.
10 MR. ABRAMS: Ordinarily, I would of
11 course be responsive directly to Your Honor's
12 question. I had hoped to take a few minutes to
13 explain to the Court in chronological order exactly
14 what has happened here, to ensure that the Court has
15 the benefit of a clear understanding of our offer and
16 the reactions by the board. In the course of that
17 presentation, I do expect to address each of the six
18 points raised by the other side.
19 THE COURT: All right.
20 MR. ABRAMS: If I may, let me go back
21 to August 12 and start by referring to the fact that
22 on that day, Mentor Graphics commenced a noncoercive,
23 any-and-all, fully-financed offer to acquire the
24 Quickturn stock at a 51 percent premium over the
77
1 closing price on the preceding day. On that same
2 day, Mentor announced its intention to solicit agent
3 designations, to call a special meeting of the
4 Quickturn stockholders, for the expressed purpose of
5 removing the current directors and electing
6 independent nominees who, subject to their fiduciary
7 duties, would consider the Mentor Graphics proposal.
8 Mentor was proceeding under the preexisting Quickturn
9 bylaws which specifically confirmed the right of 10
10 percent of the company's stockholders to call a
11 special meeting, and that that meeting could occur on
12 ten to sixty-days notice.
13 The immediate, reflexive and
14 unconsidered reaction by the Quickturn directors was
15 best characterized by Mr. Antle, who conceded that
16 upon learning of the offer, the Quickturn directors
17 believed it was, quote, stupid.
18 The problem, however, that the
19 Quickturn board and its management faced in
20 confronting a 51 percent premium offer is that they
21 have a recent financial performance, and an ongoing
22 current fiscal year financial performance, which will
23 make it impossible for the Quickturn board to
24 demonstrate in a proxy contest to the satisfaction of
78
1 a majority of the stockholders that they should
2 reject Mentor Graphics' premium price.
3 The 1997 results of Quickturn were
4 flat, and the company lost money. It had negative
5 earnings. The midterm 1998 financial results of the
6 company were drastically below expectations. They
7 started off, according to their own business plan,
8 with an expectation of having revenues of 150 million
9 this year. As recently as early August, they dropped
10 the revenue projection to only $100 million. Their
11 earnings are going to be below expectations,
12 THE COURT: That sounds like an
13 argument you should make to the stockholders, not to
14 me.
15 MR. ABRAMS: I would like it to make
16 it to the stockholders. I need Your Honor's help to
17 do so.
18 In the course of explaining what they
19 have done in order to gin up the inadequacy opinion,
20 that will shed important light on the directors'
21 motives here. Faced with the problem of a depressed
22 financial performance last year and this year,
23 Quickturn's management immediately understood on
24 August 12 that they needed some type of a long-term
79
1 plan, which they could reduce to a present value, to
2 give the current board a platform to go out on the
3 proxy contest and try to persuade the stockholders
4 they have a vision for Quickturn's future which will
5 generate a value in excess of the premium value
6 currently offered by Mentor.
7 The problem, as Mr. Nachbar admitted,
8 is that Quickturn only prepares a one-year business
9 plan. They recognized, however, that they have to
10 get a longer-term plan, because it would be
11 impossible for them to explain with any credibility
12 that this company's financial performance is going to
13 turn around so quickly, in one year, that the
14 stockholders should reject our offer.
15 Accordingly, on the day after we
16 announced our bid, Quickturn's management supplied
17 Hambrecht & Quist with entirely unsupported new
18 revenue earnings and profit margin projections.
19 Hambrecht & Quist was told that Quickturn is going to
20 earn 130 -- excuse me -- will have revenues of 130
21 million in 1998 and 170 million in 1999.
22 There was no backup for management to
23 substantiate the projections. The board had never
24 seen or approved these projections. Mr. Antle, the
80
1 chairman of the company, admitted that no director
2 asked at the August 17 meeting whether the company
3 could meet those projections. And in fact, those
4 projections were created on the back of an envelope
5 and are entirely dependent on at least two
6 significant facts:
7 First, there must be a huge
8 turnaround in the Asian market for Quickturn's
9 products. Revenues from Asia typically accounted for
10 up to 35 percent of revenues. I believe in the
11 current year they are now in the approximate range of
12 10 percent. It's absolutely clear that without a
13 dramatic uptick in sales to Asia, they could never
14 meet their revenue projections.
15 Mr. Antle testified that he -- excuse
16 me. Mr. Lobo, the current CEO of the company,
17 testified that he does not know whether there is
18 going to be a turnaround in Asia. In addition, the
19 new revenue projections assume, completely, that
20 there will be an immediate and widespread market
21 acceptance of the new Mercury product, which
22 Quickturn is completing testing on and which is, to
23 my knowledge, not even in widespread commercial
24 distribution.
81
1 Once again, the critical problem that
2 management had to overcome is that they have no
3 comparable revenue history in the company's
4 experience to justify a multiyear forecast of 30
5 percent compound earnings going out beyond one year.
6 It is clear that the new revenue
7 projections which are the basis for the Hambrecht &
8 Quist analysis were hastily concocted and they are
9 unjustifiably optimistic. Although the board was
10 given a preview of the Hambrecht & Quist analysis at
11 the August 17 meeting, the ultimate decision to
12 reject the Mentor offer as inadequate occurred at the
13 pivotal August 21 meeting of the Quickturn board.
14 I would like to hand up to to Your
15 Honor the chart that was included in the Hambrecht &
16 Quist materials, which contains the Hambrecht & Quist
17 analysis, which applies five different valuation
18 techniques to assess the adequacy of the Quickturn
19 offer -- the Mentor offer.
20 This document has been designated as
21 highly confidential, and therefore, I'm not free in
22 open court to refer to the specific dollar numbers,
23 but Your Honor will see there are five valuation
24 methodologies applied by Hambrecht & Quist to assess
82
1 the adequacy of an 12-and-an-eighth offering price,
2 which is depicted on the horizontal line.
3 Even Hambrecht & Quist, with the
4 benefit of the unduly optimistic management
5 projections, created value ranges for the Mentor
6 offer which show that our offering price is within or
7 above every single valuation range.
8 It's interesting, Your Honor, that
9 the chief executive officer of the company, Mr. Lobo,
10 testified in his deposition that he does not recall
11 seeing this valuation summary at the board meeting.
12 He does not recall any direct questions from
13 directors regarding the valuation summary. He
14 concedes that the board was not advised by Hambrecht
15 & Quist on August 21 that the DCF analysis in the
16 right-hand column is an unreliable methodology for
17 valuing Quickturn and for evaluating Mentor's offer.
18 And Mr. Lobo further concedes that
19 there were no questions by the directors regarding
20 the underlying assumptions in the DCF analysis, which
21 were used to create the single valuation range in
22 which the Mentor offer is at the low end of the
23 valuation.
24 Your Honor will see that in the first
83
1 four columns on the chart, Mentor's offering price of
2 12-and-an-eighth is well within or above all four
3 valuation ranges. Management concocted new revenue
4 forecasts, earnings forecasts and profit margins in
5 order to give Hambrecht & Quist a basis on which to
6 compute an extremely broad and, in our view, entirely
7 unjustified DCF analysis. Our brief explains in
8 considerable detail why even the single methodology
9 in which our offer falls within the low end of the
10 range -- that that methodology is an inappropriate
11 basis to evaluate the adequacy of the offer.
12 The deposition testimony is
13 unequivocal that in reaching the inadequacy
14 conclusion, the board never asked how the Mentor
15 offering price possibly could be deemed inadequate
16 when on the strength of Hambrecht & Quist's own
17 analysis, as depicted in this chart, the Mentor price
18 falls within or above every single valuation range.
19 Hambrecht & Quist also presented a
20 chart to the Quickturn directors which shows that no
21 hostile offer had been successfully completed if the
22 offer had been left open for five months. That chart
23 is on page 48 of Exhibit 7. I'll hand a copy of that
24 up to Your Honor as well.
84
1 The point of this chart is that even
2 though the directors were being asked on August 21 to
3 approve a bylaw amendment and the deferred redemption
4 provision, which would defer the completion of
5 Mentor's offer for at least nine months, the column
6 at the bottom of the page shows that all offers
7 depicted on that page were unsuccessful if they had
8 to be kept open for five months.
9 No director asked Hambrecht & Quist
10 if it was aware of any tender offer which had been
11 completed successfully if it had been kept open for
12 five months. No director asked Hambrecht & Quist
13 whether it was aware of any offer which had been
14 completed if the offer had been open for more than
15 nine months.
16 THE COURT: I'm sorry. You will have
17 to show me --
18 MR. ABRAMS: The --
19 THE COURT: -- where on the chart --
20 which portions of the chart support what you just
21 said.
22 MR. ABRAMS: The second black box in
23 the left-hand column, I believe, refers to
24 unsuccessful. All of those tender offers failed when
85
1 they were required to be maintained for more than
2 five months.
3 THE COURT: All right. And where is
4 the data that relates to the more-than-five-months
5 statement?
6 MR. ABRAMS: We can confirm to Your
7 Honor's satisfaction that as a matter of public
8 record, all of those tender offers failed. I believe
9 Mr. Cleveland may have testified to that in his
10 deposition.
11 THE COURT: That's not apparent from
12 the chart.
13 MR. ABRAMS: Well, the ultimate point
14 is that in the context of a board meeting in which
15 the directors are being asked to consider two
16 defensive measures, which would defer the completion
17 of the Mentor offer for at least nine months, no
18 Quickturn director asked Hambrecht & Quist whether
19 any, even a single, tender offer had been completed
20 if it had been left open for more than nine months.
21 Leaving aside the chart --
22 THE COURT: Going back to the chart,
23 I had the impression from what you said that the
24 chart, itself, suggested that none of these withdrawn
86
1 or failed offers -- well, that the withdrawn or
2 failed offers were not kept open for more than five
3 months.
4 MR. ABRAMS: In fact, I'm reminded
5 that the -- it's the negative, that the top portion
6 of the chart shows the successful offers were
7 completed within five months. The other offers, as I
8 understand it, failed.
9 The key point, Your Honor, is that
10 this chart is not focused upon by anybody. More
11 importantly, nobody asked Hambrecht & Quist, the
12 financial advisor which recommended the rights plan
13 amendment, whether it was possible to complete a
14 hostile tender offer if the offer could not be
15 concluded within nine months.
16 THE COURT: I understand that point.
17 There is nothing on the face of the chart that puts
18 the directors -- that shows, as I thought you had
19 told me, that all of the unsuccessful -- all of the
20 offers were unsuccessful if they had to be kept open
21 for more than five months. There is nothing that a
22 director could have concluded in looking at this
23 chart. Is that correct?
24 MR. ABRAMS: One would have thought a
87
1 director looking at the chart, tracing successful and
2 unsuccessful tender offers, would have asked the
3 question whether Mentor, or anybody else, would be
4 able to complete an unsolicited tender offer if the
5 offer had to be open for nine months. The deposition
6 testimony is clear that no director asked that
7 question. There was no discussion regarding that
8 fact.
9 Turning back to the valuation issue,
10 no director asked Hambrecht & Quist how it could give
11 an inadequacy opinion regarding a 12-and-an-eighth
12 offer when a Hambrecht & Quist analysis -- analyst
13 stated publicly only two months before the offer that
14 Quickturn shares were "fully valued" at $7.50.
15 A Quickturn director who repriced the
16 stock options for the employees to only $7.43 in June
17 1998 must have thought to himself that there has to
18 be at least a question as to why or how the board
19 could reject 12-and-an-eighth in August when they
20 lowered the employee option exercise prices to only
21 $7.43. That question was not apparent to this board
22 and was never asked.
23 Instead of asking the routine,
24 customary and relevant questions, this board of
88
1 directors instructed Hambrecht & Quist to refrain
2 from any communication with Mentor Graphics regarding
3 the possibility of increasing its bid. Furthermore,
4 this board of directors specifically instructed
5 Hambrecht & Quist not to analyze any strategic
6 alternatives for the company or to explore
7 third-party acquisition proposals.
8 THE COURT: One of the questions in
9 this case is whether a nine-month delay would
10 significantly increase the risks to Mentor, with the
11 result that it would either defeat or seriously
12 jeopardize the Mentor Graphics offer. Mr. Nachbar
13 insists that there is no evidence that that's the
14 case here. Whatever the effect may be on other
15 offerors or in other contexts, what does the record
16 show on that subject?
17 By the way, the subject that I'm
18 talking about goes to that fact both in terms of the
19 preclusive -- a preclusive defensive measure and in
20 terms of irreparable harm.
21 MR. ABRAMS: Well, the irreparable
22 harm need not be reached at this time, since we are
23 not before the Court on any pending application for
24 interim relief. As a court of equity, this Court, I
89
1 would suggest, deferentially, ought to retain all of
2 its remedies so that following a final determination
3 of the facts and liability, the Court can impose an
4 effective remedy.
5 With respect to the coercive and
6 preclusive effects of the defensive measures, if I
7 may, I'll start with the record testimony not cited
8 anywhere in the two briefs filed by Quickturn, and
9 surprisingly denied by my colleague, Mr. Nachbar.
10 First, with respect to the record
11 evidence that the defensive measures have a
12 preclusive and coercive effect on shareholder voting,
13 I would point to five statements by way of example.
14 Mr. Burch, the president of MacKenzie
15 Partners, an expert in the proxy solicitation field
16 who is representing Mentor Graphics, testified
17 testified at page 183, lines 20 to 22 as follows:
18 "...I'm aware of holders who didn't vote because..."
19 Quickturn "...enacted those actions."
20 Mr. Burch further testified on page
21 182 at lines 7 to 11, "...since the resolution of"
22 the dead-hand pill issue..." -- I apologize, Your
23 Honor. In the interests of speed, I'm inserting my
24 descriptions of the shorthand that was used in the
90
1 deposition. Mr. Burch testified since the resolution
2 of the deferred redemption provision "was not going
3 to be resolved for some period of time, people are
4 less likely to tender or less likely to vote because
5 of the futility of their act at the moment or
6 potential futility of their act at the moment."
7 Mr. Varelas of Salomon Smith Barney,
8 the investment banker representing Mentor Graphics,
9 also testified that the vote was coercive. He
10 testified, in particular, that the amendment to the
11 rights plan, "may prevent shareholders from voting in
12 favor of their offer, even though all else being
13 equal, they may see our offer as attractive and one
14 that is more attractive than the alternatives
15 available to them."
16 THE COURT: Whose testimony is this?
17 MR. ABRAMS: Mr. Varelas, the senior
18 representative from Salomon Smith Barney, the
19 financial advisor to Mentor Graphics.
20 We have three statements that have
21 been made by our proxy solicitor and our financial
22 advisor as to the preclusive effect of the vote and
23 the -- excuse me, the preclusive effects on the vote
24 of the defensive measures, and the coercive effect as
91
1 well.
2 That is sufficient to defeat summary
3 judgment, but the defendants, unbelievably, do not
4 even refer the Court to testimony by Mr. Cleveland,
5 of Hambrecht & Quist, their own financial advisor,
6 who also characterized the defensive measures as
7 coercing the vote and having a preclusive effect.
8 Mr. Cleveland testified "Because the existence of a
9 dead-hand provision makes it difficult for the
10 insurgent board to replace a pill, and therefore it
11 is less likely that a successful proxy contest could
12 be accomplished." That is Cleveland deposition 87,
13 at lines thirteen to twenty-four.
14 Mr. Cleveland -- once again, their
15 own financial advisor -- further testified that the
16 defensive measures precluded the effectiveness of the
17 stockholder vote by stating "That the existence of a
18 dead-hand provision decreases the likelihood that
19 someone would attempt a proxy contest...." That's
20 Cleveland deposition 86, lines one to twenty.
21 All of these statements are direct
22 record support from experts in their field that
23 support our argument that the defensive measures, in
24 tandem, have an improper effect on the vote at the
92
1 special meeting.
2 We argue -- these are arguments that
3 Your Honor is well aware of as a result of Toll
4 Brothers, that the defensive measures have two
5 coercive and preclusive effects with respect to the
6 stockholder vote.
7 First, they abrogate the
8 stockholders' voting right as a result of the fact
9 that the stockholders, in the face of these defensive
10 measures, will recognize their vote is unimportant,
11 and therefore, they have no incentive to vote,
12 because the new directors are powerless to implement
13 the stockholders' desires.
14 The impotency of the stockholder vote
15 was recognized in the Bank of New York decision. It
16 was recognized in the testimony I just read to Your
17 Honor from MacKenzie, Hambrecht & Quist and Salomon.
18 And of course Your Honor made the very same point in
19 Toll Brothers, in observing that a deferred
20 redemption provision "creates a structure in which
21 shareholder voting is either impotent or self-
22 defeating."
23 THE COURT: Was that in the context
24 of a deferred redemption provision or a dead-hand
93
1 pill?
2 MR. ABRAMS: It is a continuing-
3 director provision, which is technically different
4 from ours, but the same argument applies, Your Honor.
5 To the extent stockholders' wishes can not be
6 implemented by the new directors because of the
7 deferred redemption provision, their vote is
8 unimportant and meaningless, and therefore, they have
9 no incentive to vote. The abrogation of the vote is
10 preclusive within the meaning of Unitrin.
11 In addition, the defensive measures
12 operate in tandem to coerce the stockholder vote. As
13 we cite in our brief, numerous commentators, Salomon,
14 Hambrecht & Quist and MacKenzie Partners have all
15 recognized that the current stockholders necessarily
16 are coerced into voting for the current directors at
17 the special meeting because the deferred redemption
18 provision precludes the board from redeeming the
19 rights, exchanging the rights or amending the plan to
20 facilitate the Mentor offer. The stockholders would
21 be coerced into voting for the current directors
22 because under the deferred redemption provision, only
23 the current directors have the power under the rights
24 plan to approve a potential value-maximizing
94
1 transaction.
2 Finally, the testimony I just cited
3 to Your Honor is to the effect that Hambrecht & Quist
4 and Salomon are unaware of any tender offer which has
5 been successfully completed if required to be
6 maintained for nine months. Under those
7 circumstances, which are not even circumstances here,
8 because the operation of the defensive measures will
9 preclude Mentor from completing it's proposal for
10 eleven months -- but even focusing on a nine-month
11 time frame, the stockholders would understand that
12 Mentor can not proceed with its offer and, therefore,
13 any stockholder vote would be futile.
14 Turning, Your Honor, to the second
15 portion of the analysis under Unitrin with respect to
16 the preclusive effect of the defensive measures on
17 the offer, as distinguished from the preclusive and
18 coercive effects on the stockholder vote at the
19 special meeting, the record evidence also correctly
20 rebuts my friend's statement to the effect that the
21 undisputed facts demonstrate that the nine-month
22 period will not have a significant impact on Mentor's
23 offer.
24 The fact of the matter is that as
95
1 cited in our brief, and if my colleagues read the
2 deposition testimony, they would understand that
3 Mr. Varelas, of Salomon Smith Barney, testified that
4 "...the bylaws and the extension of the special
5 meeting...diminishes substantially the ability to
6 potentially effectuate and desire to effectuate the
7 transaction." Varelas deposition, 91, lines fourteen
8 to nineteen.
9 Mr. Varelas also explained on page
10 90, lines eleven to twenty, the rationale for a
11 hostile offeror being unwilling to maintain an
12 ununsolicited offer for nine months or more. He
13 testified "...we, as the acquirer, may not view the
14 opportunity as attractive given the fact that we will
15 not be able to take control of the company for an
16 extended period of time and, therefore, will not be
17 able to yield the business results which warrant the
18 share price that we're offering, particularly in
19 light of the fact this is a technology company, and
20 it's subject to an environment in changing dynamic,
21 which makes time more of an issue, not less of an
22 issue."
23 Mr. Varelas was asked specifically by
24 Quickturn's counsel whether he was aware of a hostile
96
1 transaction, whether he had been involved in a
2 hostile transaction that took longer than four months
3 to be successfully completed. His answer, on page 96
4 to 97, "I don't believe so," except for one special
5 situation.
6 Once again, we don't have to rely on
7 the testimony by our experts. We can turn to the
8 testimony supplied by Hambrecht & Quist, Quickturn's
9 financial advisor, to confirm the point.
10 Mr. Cleveland, of Hambrecht & Quist, was asked at
11 page 121 of his deposition, "In your experience as an
12 investment banker, are you aware of any tender offer
13 that has been successfully closed after having been
14 opened for nine months or longer?
15 "Answer: No."
16 Your Honor asked Mr. Nachbar
17 approximately two minutes into his presentation
18 whether there was any record evidence demonstrating
19 that the combination of the defensive measures would
20 have a preclusive or coercive effect. I believe
21 Mr. Nachbar confirmed that if there was such record
22 evidence, the summary judgment motion should be
23 denied and we should proceed to trial. That
24 testimony, by way of example, demonstrates the
97
1 effects of which we are complaining.
2 THE COURT: Well, does it? It may
3 demonstrate the effects in the abstract, but what
4 does it demonstrate as far as your client is
5 concerned?
6 MR. ABRAMS: It demonstrates, Your
7 Honor, that there are stockholders who have declined
8 to give us proxies and declined to tender in the face
9 of the defensive measure because they believe such
10 actions are meaningless as a result of Mentor's
11 inability to complete its transaction within nine
12 months.
13 Mr. Burch's testimony is crystal
14 clear on the point. In addition, both Hambrecht &
15 Quist and Salomon Brothers have provided expert
16 testimony to the effect that hostile tender offers,
17 if not completed in less than nine months, are not
18 going to be completed. That supports our argument
19 that these particular defensive measures, as applied
20 in this context, are preclusive.
21 THE COURT: Does that mean that if
22 your client is required to keep this offer open for
23 nine months, that it will not do that?
24 MR. ABRAMS: Our position, Your
98
1 Honor, as set forth in the tender offer materials, is
2 that we are here today. We have expressed rights
3 under the tender offer to terminate the tender offer
4 at any time. And we specify in the tender offer we
5 are going to continue to evaluate all outstanding
6 conditions. It should not be a requirement for a
7 tender offeror to say definitively that it's going to
8 terminate its offer in a particular set of
9 circumstances.
10 In this case, we have unlawful,
11 inequitable manipulations, which have been
12 implemented by target directors, which on the record
13 before the Court will coerce the stockholder vote,
14 will abrogate the stockholder vote, and which, given
15 historical experience, would preclude the completion
16 of the offer. We are entitled to come before Your
17 Honor now --
18 THE COURT: It's that latter
19 statement that I'm focusing on.
20 MR. ABRAMS: We submit --
21 THE COURT: How can I conclude that
22 in this case?
23 MR. ABRAMS: We submit, Your Honor,
24 we are not required to cross the rubicon of stating
99
1 definitively what we are going to do. We know they
2 have undertaken improper measures --
3 THE COURT: You would have the Court
4 cross the rubicon and state definitively for you what
5 you would do.
6 MR. ABRAMS: In this case, we have
7 sufficient testimony on the record before Your Honor
8 to deny a summary judgment motion and to proceed to
9 trial, to allow our experts to explain to the Court
10 why a deferred redemption provision which in
11 combination with a bylaw amendment requires us to
12 keep our offer for eleven months will, as a practical
13 matter, given historical experience, preclude us from
14 completing our offer.
15 Unitrin requires the Court to assess
16 the reasonableness of the response, whether it is
17 preclusive or coercive. If, as Your Honor recognized
18 in your earlier question of Mr. Nachbar, the
19 testimony is that a substantial percentage of hostile
20 offers can not and are not completed within nine
21 months as a result of these types of defensive
22 measures, that, by definition, will be a preclusive
23 defensive measure and shall be stricken in this
24 context.
100
1 Your Honor, the directors' activities
2 in this case are such that --
3 THE COURT: We are -- we have really
4 gone over our time, but before we conclude on this
5 point, Mr. Abrams, let's go back for a moment to the
6 beginning. On what date did the appellate court -- I
7 can't recall which one -- affirm the injunction in
8 the intellectual property case?
9 MR. ABRAMS: I believe August 5.
10 THE COURT: What was the date in
11 which your client announced its offer?
12 MR. ABRAMS: August 12th.
13 THE COURT: Are those two events
14 related?
15 MR. ABRAMS: I had no knowledge on
16 August 12th, at the time this offer started, that the
17 action had been taken on August 5th, if that is any
18 indication. We started the planning process, as is
19 evidenced by the record, in late May and early June.
20 The fact that litigation proceedings are occurring
21 between the companies should be irrelevant to the
22 assessment of the reasonableness of the defensive
23 actions.
24 No director testified that he valued
101
1 this company based on the prospect of any particular
2 damages that Quickturn asserts it's going to recover
3 from the patent litigation. The 220 million number
4 that is being bandied about is identified in an
5 expert report which is so strikingly at odds with the
6 underlying facts that Mentor Graphics is moving at
7 this time to strike the expert's report.
8 We have also asked Quickturn to make
9 public the expert's report, to allow all of the
10 stockholders to assess for themselves whether they
11 have really got a $220 million damages claim or, as
12 we suggest in the tender offer materials, the maximum
13 damages under any reasonable recognized theory are
14 only $10 million.
15 THE COURT: You are going to ask the
16 shareholders to decide for themselves what will be
17 before the Court in the the damage phase of the
18 patent proceedings?
19 MR. ABRAMS: They are now asserting
20 in public disclosures that they are going to recover
21 $220 million of damages from us, and they are using
22 that as part of their platform to defeat our proxy
23 contest. We think the $220 million number is a sham.
24 We are moving to strike the report. If they really
102
1 belief in the bona fides of that report, they can
2 make it public and allow everybody to evaluate its
3 terms.
4 THE COURT: Am I to conclude from
5 what you just said that the fact that your clients'
6 offer, unsolicited offer, took place within a week of
7 the affirming opinion of the appellate court in the
8 intellectual property case is a coincidence?
9 MR. ABRAMS: I have not spoken with
10 my clients about the timing. I can tell Your Honor,
11 having been heavily involved in this matter since
12 June, that I didn't know about the patent litigation.
13 And furthermore, the $220 million number didn't come
14 out until last week. And among other factors that we
15 considered in launching the bid was the existence of
16 the injunction in the patent litigation, which bars
17 us from selling our products in the United States.
18 But the testimony from my clients is
19 that there are legitimate strategic reasons for
20 combining the two product lines of the companies, and
21 thereby enabling a combined Mentor/Quickturn to sell
22 to its customers on a more efficient basis.
23 Ultimately, the issue is irrelevant,
24 because the stockholders need to decide for -- need
103
1 to be given an opportunity to decide for themselves,
2 without coercion and without the preclusive effects
3 of the defensive measures, whether our offer is
4 adequate. That is all we are asking Your Honor to
5 decide.
6 THE COURT: May be irrelevant. You
7 are saying it's irrelevant in this litigation, but it
8 is relevant to the stockholders in making whatever
9 decision they may be called upon to make.
10 MR. ABRAMS: I would have thought
11 that incumbent management faced with a proxy contest,
12 and purportedly believing it has a damages claim
13 which exceeds the current value of Quickturn, would
14 be willing to explain to the public what its theories
15 are and why it believes that $220 million is
16 legitimate. They have not done so. We asked them to
17 do so.
18 We do not believe the $220 million
19 has any credibility, and we are moving to strike the
20 expert's report in the patent litigation.
21 Ultimately, we ask Your Honor to decide what is
22 before this Court, which is the validity of the
23 defensive measures.
24 THE COURT: We are a little bit over
104
1 time. We'll he reconvene at twenty minutes of two.
2 MR. ABRAMS: Thank you, Your Honor.
3 (Recess at 12:38 p.m.)
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105
1 AFTERNOON SESSION
2 1:45 p.m.
3 MR. ABRAMS: Thank you, Your Honor.
4 Too recapitulate, I have explained the board's
5 reliance at the August 21 meeting, the deficient
6 Hambrecht & Quist analysis. As of August 21st, the
7 board had made no careful financial consideration of
8 the offer. The board determined to reject a 51
9 percent premium offer as inadequate, notwithstanding
10 the analysis depicted on the chart I supplied to the
11 Court, which confirms by any reasonable standard that
12 the offer is in fact adequate, because it is within
13 or above all of the valuation methodologies employed
14 by Hambrecht & Quist.
15 The board determined on August 21st
16 to essentially pursue a just-say-no defense. They
17 have not undertaken any negotiations with Mentor to
18 get a higher price. They are not analyzing strategic
19 alternatives. There is no public indication that
20 they are pursuing alternative acquisition proposals.
21 So the board simply says on August 21
22 that the bid is inadequate, and they have a deficient
23 Hambrecht & Quist analysis. That is their position
24 going into a proxy contest with Mentor Graphics,
106
1 which presented a 51 percent premium offer.
2 The board understood on August 21
3 that fighting this out on the merits was not a very
4 desirable prospect for them. In order to defeat our
5 bid, they then proceeded to adopt two defensive
6 measures: First, the bylaw amendment to defer the
7 special meeting; and secondly, to amend the rights
8 plan to install the deferred redemption provision.
9 The defendants would like Your Honor
10 to analyze the validity of those provisions
11 separately. Unitrin teaches otherwise. And the
12 coercive and preclusive effects of both defensive
13 measures must be assessed by Your Honor, we suggest.
14 If I may start with the bylaw
15 amendment, I regret that there appears to be a
16 factual dispute over the actual language of the bylaw
17 amendment. The defendants misstated the actual
18 language of the bylaw amendment in their opening
19 brief. And in their SEC filings regarding the bylaw
20 amendment, they omitted the critical
21 validity-of-the-determination language from the
22 bylaw.
23 As Your Honor is aware, they are
24 employing the bylaws in order to defer the meeting,
107
1 in the event they determine that the agent
2 designations used to call the meeting are somehow
3 invalid. In addition, defendants repeatedly
4 misstated in their opening brief the effect of the
5 bylaw -- the effect of the bylaw, by suggesting that
6 at most the bylaw would defer the special meeting by
7 only a matter of a few weeks.
8 The actual bylaw, however, allows an
9 indefinite delay in the meeting, because the company
10 is not required to set the meeting date until ninety
11 to one hundred days after a determination of the
12 validity of the request for the meeting by the board.
13 THE COURT: That's theoretically how
14 it was worded, but in this case they have set the
15 meeting for, as I understand it -- for January 8th,
16 1999.
17 MR. ABRAMS: The confidential reply
18 brief suggested they will have the meeting on January
19 8th unless the federal court enjoins the
20 effectiveness of the agent designations. However,
21 the current SEC filings by Quickturn contain no
22 similar statement, and the Quickturn stockholders,
23 therefore, have no information from the company as to
24 their current position, as articulated to the Court.
108
1 Moreover they do not have the benefit of any
2 explanation as to the standards to be employed by the
3 Quickturn board in assessing the impact of the
4 federal court's ruling on whether the agent
5 designations were valid.
6 THE COURT: Let me stop you there for
7 a moment, because I was told, and I did not know
8 before, that your side is going ahead with the
9 meeting in October.
10 MR. ABRAMS: Yes, Your Honor. As a
11 result of the receipt --
12 THE COURT: Based on your legal
13 position that the adoption of the bylaw amendment is
14 invalid?
15 MR. ABRAMS: In conjunction with the
16 solicitation of agent designations, which commenced
17 on August 12th, Mentor Graphics was successful,
18 September 11, in securing agent designations to call
19 a special meeting with just over 17 percent of the
20 Quickturn stockholders.
21 Upon the receipt of that number of
22 agent designations, Mentor, relying on the bylaws as
23 they existed prior to the amendment which is the
24 subject of this proceeding, proceeded to call the
109
1 meeting for October 29, to give notice of the
2 meeting. And because of the absence of prior action
3 by the board to set a record date, we contend that
4 the mailing of our proxy materials on September 11
5 has the effect under Section 213 of setting the
6 record date. We presently are planning, subject to
7 the rulings by this Court and the federal court, to
8 proceed with our meeting on August 29.
9 THE COURT: Okay. I'm not sure that
10 you answered my question. Is your plan to go ahead
11 with the meeting in October, predicated on the
12 assumption that the bylaw amendment is invalid, or
13 only that -- whether valid or not, it's not
14 applicable to your side?
15 MR. ABRAMS: Ultimately, Your Honor's
16 ruling on the validity of the bylaw amendment will
17 dictate the legality of the results of the meeting.
18 We are hopeful that Your Honor will be in a position
19 to give us a prompt ruling on the bylaw amendment so
20 that we can take that into account in determining
21 whether and how to proceed with the meeting on the
22 29th. They contend that the -- that our October 29th
23 date is invalid.
24 THE COURT: Let's assume the case
110
1 goes to trial. Are you saying that it would be
2 possible for the Court to have a trial and determine
3 all of that before October 29th?
4 MR. ABRAMS: It is hypothetically
5 possible, but we are mindful of Your Honor's
6 schedule. We have contingency plans to deal with
7 whatever rulings come from the Court, or the federal
8 court, or whatever rulings can not be issued because
9 of the press of time.
10 THE COURT: If the federal court
11 invalidates the agent designation solicitation,
12 presumably that moots whatever the effect might be of
13 your October meeting. Is that right?
14 MR. ABRAMS: I would have to assess
15 the specific ruling, but certainly, Quickturn will
16 assert that the agent designations were improperly
17 collected and invalid, and therefore, the special
18 meeting called for October 29 by Mentor Graphics is a
19 nullity.
20 THE COURT: That is certainly one
21 possible result of the federal -- pending federal
22 action.
23 MR. ABRAMS: A hypothetical result
24 which could occur, we submit, Your Honor.
111
1 THE COURT: Okay. Well, what I'm
2 really trying to ascertain is whether this meeting
3 that you have scheduled is really a prelude to some
4 later Section 225 action, assuming there are two
5 meetings with different results, and what impact, if
6 any, does it have on what this Court is doing at this
7 time.
8 MR. ABRAMS: Our present plan, Your
9 Honor, is to make a determination about whether to
10 proceed with the October 29 meeting as a result of
11 the events at trial and based upon whatever
12 indication Your Honor can give us as to a potential
13 schedule for the resolution of the issues to be
14 tried. We are terribly mindful of Your Honor's
15 schedule. We will certainly take it into account in
16 determining what to do with respect to a possible
17 adjournment of the October 29 meeting.
18 THE COURT: Mr. Abrams, I'm going to
19 have to conclude today's hearing no later than
20 quarter of four. So that really sets the outside
21 parameters for this argument, as well as the argument
22 on the motion to compel. So what I would --
23 Without trying to dictate how you
24 make your presentation, somewhere in that
112
1 presentation it would be most helpful to me if you
2 would enumerate to me what you contend to be the
3 critical disputes of fact that would preclude summary
4 judgment.
5 MR. ABRAMS: Let me turn to that
6 precise issue, as to what the board knew and didn't
7 know or didn't ask about with respect to the adoption
8 of the bylaw amendment. The bylaw amendment was
9 adopted at the August 21st meeting. Our answering
10 brief, at pages 29 to 30, includes specific record
11 references to the following facts:
12 One, no director has any
13 understanding of the steps to be taken or the
14 standards to be employed to determine the validity
15 under the new bylaw of a stockholder's call of the
16 meeting;
17 Two, at the August 21 meeting the
18 directors never asked about the effect of the new
19 bylaw on Mentor's offer.
20 The board never asked about the
21 effect of the new bylaw on any potential insurgent's
22 proxy contest. The board never asked about the time
23 that would be required to conduct a proxy contest,
24 whether that was relevant to the period of time to be
113
1 set in the new bylaw for the calling of the meeting.
2 The board never asked about whether a
3 delay in the special meeting would influence the
4 outcome of any stockholder vote which might
5 ultimately occur. The board never asked whether a
6 delay in the holding of the meeting by ninety to a
7 hundred days, or any other period, would benefit
8 current management in a proxy contest.
9 The board never asked or understood
10 when or how the board would be required to set a new
11 meeting date in conjunction with the operation of the
12 new bylaw.
13 These are all fundamental, core
14 questions that any cognizant director could and
15 should have asked in order to assess the
16 reasonableness of the new bylaw and its impact on
17 Mentor's pending offer.
18 THE COURT: What does that go to,
19 that the board was not properly informed, or that the
20 board did not reasonably -- did not assess properly
21 the reasonableness of what it was doing, or both?
22 MR. ABRAMS: Both, Your Honor. We
23 have a Van Gorkom claim and a first prong of Unitrin
24 claim.
114
1 THE COURT: So your argument would be
2 that even if the Court were to find that the -- what
3 the board did passes muster under Unocal, it would
4 still be invalidated under Van Gorkom?
5 MR. ABRAMS: Certainly, Your Honor.
6 I suggest if Your Honor rules in our favor on the Van
7 Gorkom point, that derails the defendants' position
8 under Unitrin, which requires the board to carry its
9 burden of proof that it conducted a reasonable
10 investigation to identify a threat to corporate
11 policy and effectiveness.
12 THE COURT: Well, all of the facts
13 that you have enumerated go to the reasonableness of
14 the -- go to the effect of what the board was doing,
15 which I thought would bear in proportionality, as
16 opposed to threat.
17 MR. ABRAMS: It goes to the heart of
18 the initial question of whether this board had any
19 idea whatsoever of what it was doing when it adopted
20 the bylaw amendment.
21 Because the board did not address any
22 of the issues which I just enumerated, and which are
23 set forth with citations to record evidence in our
24 brief, this board was uninformed in adopting the
115
1 bylaw amendment. That is a failure under Van Gorkom.
2 It is a failure under the first prong of Unitrin.
3 In addition, I will get to the
4 effects of the bylaw, which constitute a separate
5 violation under Blasius and the second prong of
6 Unitrin. As Your Honor will see from my presentation
7 today, we are going to offer the Court numerous
8 opportunities to assess the validity of the conduct
9 of the defendants, under multiple branches of
10 Delaware law. We will have a Blasius argument, a Van
11 Gorkom argument, a Unitrin argument and a Schnell
12 argument, in addition to 141(a) with respect to the
13 rights plan. All of these constitute individual
14 bases to invalidate some or all of what the
15 defendants have done.
16 Let me turn now to the justification
17 proffered by the directors for adopting the bylaw
18 amendment. The uniform testimony, the mantra of the
19 directors, after coaching of the directors' lawyers,
20 was that they "wanted to afford an orderly process"
21 to allow the stockholders to determine how to vote.
22 That is the sole justification proffered by the
23 directors in their depositions for imposing a ninety-
24 to-one-hundred-day delay on the call of the meeting.
116
1 That justification is a sham. The
2 bylaw amendment only applies to stockholder-initiated
3 meetings and does not apply to management-initiated
4 meetings. One would have thought that out of a sense
5 of fairness, and if they really believe that the
6 stockholders needed an orderly process to obtain
7 information, the calling of the special meeting would
8 be on the same notice periods for both management and
9 the stockholders. The fact that it is not speaks
10 volumes about what is going on here.
11 In addition, there is no explanation
12 whatsoever from the defendants as to why the
13 stockholders somehow lack sufficient information, 78
14 days after Mentor's offer was commenced and 48 days
15 after Mentor's proxy materials were distributed, to
16 determine how to vote at the October 29 meeting.
17 Indeed, Mr. Lobo, the CEO of
18 Quickturn, admitted in his deposition the schedule
19 14D-9 of Quickturn contains all relevant information
20 for the stockholders to determine how to vote and
21 whether to tender.
22 Finally, this board of directors
23 never considered any special meeting deferral period
24 of less than ninety to one hundred days. They only
117
1 considered abolishing the special meeting procedure
2 altogether or requiring that any stockholder-
3 initiated special meeting occur on a longer period of
4 time.
5 There was no good-faith consideration
6 of the stockholders' interests. There is no reasoned
7 judgment here as to why the stockholders can't vote,
8 48 days after we distributed our proxy materials, on
9 the issues to be presented by Mentor.
10 Of course, the period of time between
11 the distribution of our proxy materials and the call
12 of our meeting and the actual date of the meeting is
13 48 days, well within the ten-to-sixty-day period
14 contemplated under the original bylaws for notice of
15 a meeting, and well within the requirements of
16 Delaware law.
17 Indeed, because of the requirements
18 of Delaware law, specifically Section 222(b), Your
19 Honor undoubtedly is aware that the substantial
20 majority of proxy contests are conducted in less than
21 sixty days. And therefore, the proffered
22 justification of the need for an orderly process is a
23 sham to delay the vote until such period of time as
24 the defendants can attempt to do whatever it is they
118
1 are going to do. But the bottom line is that the
2 stockholders have -- will have had, by October 29,
3 our proxy materials for 48 days. And we believe they
4 have -- as Mr. Lobo has admitted, they have more than
5 enough information to decide.
6 Let me turn to the adoption of the
7 rights plan. The deposition testimony is clear that
8 the defendants and their advisors misunderstood the
9 original terms of the Quickturn rights plan. Under
10 the original plan, the newly-elected directors could
11 have redeemed the rights at any time before a bidder
12 such as Mentor Graphics crossed the 15 percent
13 beneficial ownership threshold.
14 Nevertheless, the Quickturn directors
15 in their depositions, and their lawyers, and
16 Hambrecht & Quist, also, mischaracterized the
17 original plan as a pure dead-hand provision. It was
18 not. There was a redemption opportunity within the
19 original pill without the presence of continuing
20 directors.
21 Substantively, the new amendments are
22 two-fold. First, Quickturn redefined the definition
23 of an interested person to include any person who
24 directly or indirectly proposed, nominated or
119
1 financially supported a Quickturn director who was
2 elected at any regular or special meeting, an
3 interested person being the one with whom a
4 transaction should not occur if one is to avoid the
5 triggering of the rights.
6 So they specifically redefined an
7 interested person to encompass Mentor, the precise
8 party with the greatest motivation and the declared
9 intention of calling a meeting to replace the
10 incumbent directors.
11 Secondly, they amended the redemption
12 exchange and amendment provisions to prohibit any
13 such action for 180 days after the election of the
14 majority of the board if the purpose of such action
15 has the purpose -- if such action has the purpose or
16 effect of facilitating a transaction with an
17 interested person.
18 The net effect of the two amendments
19 is to eliminate the power of any board elected as a
20 result of the special meeting to redeem the rights
21 plan for six months if such action has the effect of
22 facilitating a transaction solely with the bidder who
23 proposes, nominates or financially supports the
24 replacement of the incumbent directors.
120
1 The new directors -- this is critical
2 to understand the manipulative nature of what they've
3 done. The new directors are free under the rights
4 plan to effect a transaction immediately with any
5 party other than the person who proposes the new
6 directors. Notwithstanding the fact that the new
7 directors can redeem the pill for any third-party
8 transaction, at any time, including day one after
9 they are elected, these directors are asserting to
10 Your Honor that the sole justification for the
11 deferred redemption provision is to allow the board
12 to get enough information to determine over a
13 six-month period as to whether to sell the company.
14 THE COURT: Let me make sure I
15 understand that. If a third party comes in,
16 unaffiliated with anyone, and offers a higher price
17 than Mentor, the new board could accept that and
18 redeem the pill.
19 MR. ABRAMS: On day one after their
20 election. Let's suppose the new board is given a $15
21 offer by a third party. They can redeem on October
22 30th if we proceed with the meeting.
23 Let's suppose Mentor counters after
24 the special meeting and offers $25 a share, $10
121
1 higher than what the third party bids. Under this
2 pill, these board of directors, even if we have the
3 highest and best bid at the end of the day, can not
4 redeem for six months.
5 Why do they say they need the
6 deferred redemption provision? Every director
7 testified that the new directors have to determine
8 enough information about the company to make a sale
9 decision.
10 The directors simply don't understand
11 the operation of their own rights plan. Why don't
12 they understand it? Because they received no advice
13 from anybody at the meetings which is admissible in
14 this proceeding. They received no written materials
15 at the August 21 meeting regarding the deferred
16 redemption provision. As set forth in our brief on
17 page 35, they asked no questions regarding the
18 individual or cumulative effect of the bylaw
19 amendment and the deferred redemption provision.
20 They did not ask whether any bidder had ever kept an
21 offer open for longer than six to nine months. They
22 did not ask whether the deferred redemption provision
23 would affect Mentor's tender offer or proxy contest.
24 They did not ask whether any other company had
122
1 adopted a deferred redemption provision.
2 THE COURT: Mr. Abrams, one of the
3 arguments that Mr. Nachbar made was that in a Unocal
4 analysis, the Court is not required nor should it
5 inquire as to the reasonableness of the decision-
6 making process that led to the adoption of the
7 defensive measure, but only the reasonableness of the
8 measure itself. What is your response to that?
9 MR. ABRAMS: The first prong of
10 Unitrin requires the board to carry its burden of
11 proof of demonstrating it conducted a reasonable
12 investigation to identify a threat to corporate
13 policy and effectiveness. That is Hornbook Delaware
14 law. If they fail to conduct a reasonable
15 investigation and to, in effect, conduct the
16 appropriate process in adopting the defensive
17 measure, then they have no informed basis on which to
18 enact the defensive measure. We submit these
19 directors, on the basis of the record that we already
20 established, will fail the first prong of Unitrin.
21 And at a minimum, we have raised, obviously, disputed
22 questions of fact as to what they knew. And
23 therefore, we are entitled to proceed to trial, we
24 submit.
123
1 THE COURT: You are saying that under
2 the first prong of Unitrin, the board has to conduct
3 a reasonable investigation to identify a threat, a
4 cognizable threat. Is it also the case that the
5 board has to conduct a reasonable investigation to
6 determine the proportionality, if any, of the
7 response? I mean is that required under Unitrin, or
8 is that just a hard core, bedrock fiduciary duty?
9 MR. ABRAMS: It's a bedrock fiduciary
10 duty, recognized in Van Gorkom, which is applicable
11 to any decision by the board. And in the context of
12 a defensive response, the board only is entitled to
13 enact reasonable measures. Certainly, it is a
14 requirement that the board act with due care on
15 behalf of their own stockholders before they enact
16 defensive measures, which, as in this case, could
17 preclude or coerce the outcome of the control
18 contest.
19 THE COURT: All right.
20 MR. ABRAMS: As Your Honor will hear
21 in the discussion this afternoon on the motion in
22 limine, we attempted to inquire of the directors --
23 THE COURT: I thought it was a motion
24 to compel.
124
1 MR. ABRAMS: There are several issues
2 that we hope to discuss with Your Honor in the time
3 we have available today. I had suggested, I thought,
4 before we started the summary judgment argument that
5 we objected to any reference by the other side to the
6 fact of consultations with counsel. That is the
7 precise subject matter of the motion in limine. We
8 are asking the Court for a ruling that the defendants
9 are not entitled, in the summary judgment proceeding
10 or at trial, to refer to the fact that they consulted
11 with counsel.
12 THE COURT: Well, I don't know how to
13 deal with that, given that there has been no response
14 to the motion in limine and that the ground rules --
15 I thought the ground rules had been set that we were
16 not going to consider that.
17 MR. ABRAMS: That's fine, Your Honor.
18 If Your Honor wishes to give them a time, additional
19 time, since the filing of our motion last Friday, to
20 submit a response, we are happy to take that up with
21 the Court at Your Honor's convenience.
22 The point, though, for purposes of
23 this proceeding, is we attempted to inquire as to the
24 board's discussions with their advisors regarding the
125
1 justification for the 180-day deferral period.
2 Steadfastly, consistently, and without hesitation or
3 exception, Quickturn's counsel invoked the
4 attorney/client privilege to block every single
5 question that we asked about the 180-day period.
6 We submit to Your Honor that the
7 board, with that record, can not carry its burden of
8 showing a reasonable investigation, because there is
9 no admissible evidence for Your Honor to consider
10 regarding the reasonableness or the propriety of the
11 board's process in evaluating the defensive measures.
12 Its their burden of proof, having invoked the
13 attorney/client privilege, to block the explanation.
14 They are in a difficult position, we submit, at trial
15 to carry their burden of proof.
16 In addition to not asking the
17 questions I just identified, we were able to elicit
18 in the discovery process two important facts
19 regarding questions which were not asked of H&Q, and
20 information which H&Q did not communicate to the
21 board in conjunction with its consideration of the
22 deferred redemption provision.
23 First, if the directors asked, H&Q
24 would have informed the board that the deferred
126
1 redemption provision would "make it less likely" that
2 a bidder could use a proxy contest to replace the
3 board, because the new directors would be powerless
4 to redeem the rights. That is the Cleveland
5 deposition, 87.
6 In addition, as I mentioned
7 previously by mention to Cleveland deposition 86,
8 lines one to twenty, H&Q would have told the board,
9 had anybody been awake to ask, that the deferred
10 redemption provision decreases the likelihood that a
11 bidder would even attempt a proxy -- attempt a proxy
12 contest.
13 Once again, Your Honor, having failed
14 to ask all of these questions; and indeed, having no
15 explanation on the record before you as to how they
16 came to the 180-day period, it is not surprising that
17 this board testified uniformly in the depositions
18 that the deferred redemption provision precludes any
19 sale of the company for six months. As I've just
20 explained to Your Honor, that is simply not true.
21 This board of directors did not
22 understand on August 21, and does not understand
23 today, the purpose or the effect of the deferred
24 redemption provision. Mr. Nachbar attempts to make
127
1 much of the fact that advice was solicited from
2 counsel. We hope to bar them from even referring to
3 that fact, but for present purposes, let me just
4 mention that we don't know what the advice was. We
5 don't know whether the board followed the advice. We
6 don't know whether the advice is reasonable. Under
7 those circumstances, the fact of referring to counsel
8 is irrelevant.
9 And furthermore, they refer to the
10 fact that Hambrecht & Quist, through Mr. Cleveland,
11 recommended the adoption of the bylaw amendment and
12 the deferred redemption provision. There is nothing
13 in the record that suggests that Mr. Cleveland, or
14 anybody at Hambrecht & Quist, had a basis for the
15 recommendation. It appears that we have a naked
16 recommendation, with no questions from the directors
17 and no explanation as to why this provision, as
18 opposed to some other provision, is reasonable.
19 Now, I believe I've touched upon
20 several of the reasons as to the basis for our
21 argument that the board's rationale for the deferred
22 redemption provision is simply a pretext. It says
23 the new directors need to learn about the company.
24 Under their theory, two of their own directors would
128
1 have been disqualified from voting on August 21 on
2 the sale of the company because they only joined the
3 board on June 5th, less than the six months that they
4 say is necessary in order to allow the directors to
5 figure out whether to sell the company.
6 Indeed, Mr. Hasler, the director they
7 rely upon for the reasonableness of their assessment
8 of the defensive measures, was in fact one of the two
9 people who joined the board on June 5th. Incredibly,
10 Mr. Hasler voted for defensive measures which will
11 have the effect of precluding the sale of the company
12 for eleven months, even though he made the decision
13 on the first day he joined the board to reprice the
14 options at approximately $7.50.
15 We submit, Your Honor, if these
16 directors knew on their first day enough information
17 about repricing options to 7.50, and if they knew in
18 two-and-a-half months to reject our bid as
19 inadequate, then these directors have no plausible
20 argument that it requires six months to sell the
21 company.
22 Your Honor is absolutely correct in
23 seeking to ascertain whether there is any record
24 evidence as to advice to the board regarding the
129
1 underlying justification for attempting to require
2 the new directors to wait six months before selling
3 the company. There is none. There is no basis in
4 fact or experience to preclude the new directors from
5 selling the company. If they breached their duties
6 in conjunction with such an activity, there are
7 remedies available at an appropriate time.
8 Finally, and most importantly, the
9 whole justification for the deferred redemption
10 provision is a sham, because it applies only to
11 Mentor. This board -- that is, the newly-elected
12 directors would be free to sell the company on day
13 one to a third party. They can't sell it to us.
14 They can't sell it to us even if we have the highest
15 bid. The six-month argument is a facade.
16 With that factual background, Your
17 Honor, let me touch upon the summary judgment
18 standard, which of course is familiar to Your Honor
19 as a general matter. Here, in the context of --
20 THE COURT: I think I'm familiar with
21 that.
22 MR. ABRAMS: In the context of a
23 summary judgment application by a party who bears the
24 ultimate burden of proof, they are required to
130
1 introduce evidence to establish conclusively their
2 right to judgment after trial. It's their burden on
3 summary judgment in general. And in particular, that
4 burden is emphasized because they bear the ultimate
5 burden of proof at trial.
6 The defendants misunderstand their
7 evidentiary burden on their motion. They complain
8 that we have only advanced lawyers' arguments, with
9 no record citations. I would submit that even though
10 our brief may prove to be overlong, the 517 citations
11 to the record in our record are an interesting fact
12 in comparison to the paltry 27 record citations in
13 their reply brief.
14 We have presented an overwhelming
15 record that these people breached their duty of care.
16 They didn't know what they were doing. Their actions
17 are unreasonable under Unitrin. There are questions
18 based on the circumstantial evidence regarding their
19 motivations. Most importantly, there are critical
20 questions under Blasius regarding whether these
21 defendants can carry their burden of showing a
22 compelling justification for impeding the stockholder
23 franchise.
24 Your Honor is well aware of the
131
1 decisional law in this jurisdiction, enunciated
2 primarily by Chancellor Allen in Stahl I, and in
3 Wells Fargo, to the effect that the resolution of
4 fiduciary duty claims in general, and Unocal claims
5 in particular, requires a fine focus on the
6 particulars of the case, as well as highly contextual
7 determination of the reasonableness of the defensive
8 measures.
9 This is not the time, particularly on
10 this record, for the Court to make any ultimate
11 findings with respect to the validity of the
12 defendants' conduct.
13 As to the six questions that are
14 relied upon by the defendants in support of their
15 summary judgment application, let me review them with
16 the Court to make sure that we are clear on all six
17 of them.
18 As to independence of the directors,
19 we suggest that the directors are interested, as set
20 forth in Blasius and Aprahamian, because their
21 conduct is being undertaken in the context of a
22 control contest, where their removal from office is
23 the primary purpose of the proxy contest.
24 In addition, three of the directors
132
1 are quasi-insiders, who are former officers of the
2 company. We believe that raises a question of fact
3 as to whether they can truly be deemed disinterested
4 with respect to a hostile proposal to acquire the
5 company that they previously worked for.
6 Furthermore, two of their directors,
7 Mr. Hasler and Mr. Kissner, joined the board on June
8 5th. Under their explanation of how long it takes
9 directors to learn about the company, those directors
10 must have breached their duty of care by acting in
11 two months to reject our offer, instead of the six
12 months that they say that directors need to learn
13 enough information to determine whether to sell the
14 company.
15 So there are legitimate questions of
16 fact as to independence, as well as the evidence
17 regarding improper motivations and improper effects
18 of what the directors have done which justify a
19 trial.
20 There is a statement in the reply
21 brief to the effect that the Quickturn directors have
22 acted within the best traditions of Delaware law in
23 carefully analyzing and responding to Mentor's offer.
24 I look forward to seeing the directors at trial, so
133
1 they can respond directly to the many disputed
2 questions of fact which we have raised with respect
3 to their lack of understanding of what they've done,
4 and their failure to properly analyze the measures
5 that were before them.
6 Point Number 3 is that Quickturn,
7 quote, only took two defensive actions. I'm not sure
8 what the word "only" adds to the analysis when those
9 two actions have, for the reasons I identified, based
10 upon record citations, a preclusive and coercive
11 effect on the stockholder vote and on the outcome of
12 the Mentor tender offer.
13 Point Number 4 is that they've now
14 set the meeting date for January 8th. That, of
15 course, begs the question of whether it's proper to
16 use a bylaw and a rights plan amendment to defer a
17 meeting, to coerce the outcome of the vote and
18 effectively render the stockholders impotent to
19 replace the board.
20 The fifth point is the deferred
21 redemption provision only will delay the success of
22 Mentor's proposal by six months. That, of course, is
23 factually inaccurate. We are going to have to wait
24 until January 8th, and subsequently, until
134
1 approximately July 8th, in order to complete our
2 offer, absent the intervention of the Court to allow
3 us to proceed with the special meeting on an earlier
4 basis and, more importantly, to invalidate the
5 deferred redemption provision to allow the new board
6 to carry out its obligations under well-recognized
7 principles of Delaware law, to determine whether to
8 sell the company.
9 The net effect of the provisions
10 enacted by the defendants is to defer for eleven
11 months, nearly one year, our ability to complete the
12 offer. In addition, the eleven-month delay in
13 completing the offer begs the question of whether we
14 are going to be successful at any stockholder meeting
15 which might be held to obtain the requisite vote in
16 order to replace the directors. The success of our
17 offer, faced with their recalcitrance, depends upon
18 removing and replacing the directors. For the
19 reasons I've identified, the outcome of that proxy
20 contest is painfully in doubt, because of the effect
21 of the deferred redemption provision on stockholders'
22 willingness to vote at all, and the coercive effect
23 on any vote that they might make.
24 The sixth point is that Mentor can
135
1 keep its offer open for nine months. We don't know
2 that that's true. There is no evidence to that
3 effect. We have the right under the tender offer
4 materials to walk at any time. Ultimately, as I
5 explained to Your Honor this morning, we should not
6 be put to the test of declaring what we are going to
7 do or not do in response to illegal actions by the
8 defendants.
9 The six so-called undisputed facts
10 are all disputed or legally irrelevant at this stage
11 of the game. Most importantly, they ignore
12 completely the unjustifiable interference with the
13 stockholder franchise which results from the bylaw
14 amendment. They ignore the coercive and preclusive
15 effect of the defensive measures when considered
16 together.
17 For those reasons, we submit that the
18 summary judgment motion should be denied and we
19 should proceed to the trial that is scheduled to
20 start in less than two weeks. The plaintiffs thank
21 Your Honor for your cooperation in setting aside time
22 for the trial so promptly. We will be ready to
23 proceed. We continue to think that the three trial
24 days are more than enough to finish this proceeding
136
1 and will allow Your Honor time to render a decision
2 that will determine the outcome of our contentions
3 with respect to the unjustifiable delay in the
4 stockholder meeting.
5 THE COURT: Thank you.
6 MR. ABRAMS: Thank you, Your Honor.
7 MR. BERNSTEIN: Good afternoon, Your
8 Honor. Stanley Bernstein, for the shareholder
9 plaintiff. I was not going to be duplicative without
10 Your Honor's admonition. I will be brief and
11 nonduplicative, as well, given the time constraints.
12 I wholly adopt what Mr. Abrams
13 presented to Your Honor. From the shareholders'
14 perspective, let me emphasize several key points.
15 What the Quickturn defendants have
16 constructed is the ultimate in a prisoner's dilemma
17 shareholder game theory with respect to voting. The
18 analysis, really, from a shareholder's perspective
19 distills to the following: "I have a vote. I can
20 vote for the directors who can accept my offer, but
21 they won't. I can vote for the directors who won't
22 accept my offer, or can't accept my offer." I'm
23 sorry. "Those who won't approve the offer can. The
24 Quickturn designees won't approve the offer. They
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1 won't accept the offer. But they are allowed to. If
2 I vote for the Mentor designees, who want the offer
3 to be accepted, they can't under the bylaw
4 designation and under the DRP."
5 What happens is I have to decide who
6 to vote for based on some type of gamesmanship as to
7 whether I vote for the incumbent, who could approve
8 the offer but they have indicated they won't, or vote
9 for the person who is new and indicated that they
10 might, but can't.
11 THE COURT: Doesn't that overlook one
12 thing? You're positing a choice between voting for
13 incumbents, who would defeat the expectations of the
14 shareholders who want the Mentor offer to be
15 accepted, and the nominees of Mentor, who would
16 fulfill those expectations, but who can't. But
17 that's only for six months. You didn't factor that
18 into your picture. So why don't we do that?
19 MR. BERNSTEIN: We do factor it in.
20 The six months, Your Honor, firstly, it's
21 disenfranchising, because only one slate has the
22 six-month handcuff. Immediately, it tilts the
23 playing field against the Mentor designees. The six
24 months is illusory, because as Mr. Abrams pointed
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1 out, it's really eleven months when you add in the
2 ninety days from the bylaw amendment. And the most
3 important fact is I don't know if Mentor is going to
4 be here in July of '99. Your Honor has asked
5 repeatedly --
6 THE COURT: Let's back up for a
7 minute. From the shareholders standpoint, which
8 presumably is what you are trying to portray, what
9 difference does it make what happened before the
10 meeting? We are now on the eve of the meeting and
11 trying to decide how to cast a vote. And from that
12 point on, we are only talking about a six-month delay
13 if you, for example, choose to vote for the Mentor
14 nominees, not nine months. It's not eleven months.
15 It's six months.
16 MR. BERNSTEIN: The six months -- I
17 don't know what is going to happen in those six
18 months. Mentor could walk. Someone else can walk
19 in, as we put forth in our brief, pages eight and
20 nine. There could be a bidding auction if Mentor
21 wins, and Mentor designees would be precluded from
22 accepting the highest bid, which might be theirs.
23 The issue --
24 THE COURT: Would it? Would they?
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1 MR. BERNSTEIN: Absolutely, Your
2 Honor. Mentor wins on October 29th --
3 THE COURT: I thought if the Mentor
4 designees are elected, they could accept the bid of
5 an unaffiliated third party.
6 MR. BERNSTEIN: Yes. They could
7 accept the unaffiliated third party. What I said was
8 if Mentor enters the bidding war, which is likely,
9 and is the highest bidder on October -- on November
10 15th, two, three weeks later, which is a normal
11 bidding cycle, and Company X bids $14 a share, and
12 Mentor decides to bid $15 per share, the Mentor
13 designees will be sitting there saying, "We can take
14 14 today. We can not take the $15 that Mentor is
15 offering for six months." Six months is a lifetime.
16 It's a lifetime in the financial markets. It's more
17 than a lifetime in the technology industry.
18 The gamesmanship in the voting
19 shareholder dilemma gets further complicated because
20 the choice is not necessarily the Mentor board or the
21 Quickturn board. I thought what Your Honor was
22 alluding to was another choice, all of which are
23 inappropriate under Blasius, which is the whole DRP
24 only kicks in if a majority of the Mentor -- a
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1 majority of the board becomes Mentor designees.
2 So maybe I have to decide to vote for
3 only two Mentor designees and leave three Quickturn
4 people on. The voting dilemma here has many
5 permutations. It's inappropriate, and it's
6 unnecessary. It serves no purpose.
7 As Mr. Abrams pointed out, if you
8 need six months to consider an offer, it's unheard
9 of. It's unthinkable. We are here on summary
10 judgment. We will have trial testimony on why you
11 don't need six months. But if you needed six months,
12 you don't need six months only to consider the Mentor
13 offer and not to consider Company X's offer. And
14 that's what the Quickturn defendants have done.
15 Their DRP proves that the stated
16 reason is false, a sham. I go so far as to say it's
17 simply a lie, because if you don't need six months to
18 consider General Motors' offer or Microsoft's offer,
19 you don't need six months to consider Mentor's offer.
20 You certainly don't need six months to consider
21 Mentor's offer when the Mentor designees have been
22 thinking about the Mentor offer for some time.
23 Dean Hasler was on the board for two
24 months. Before he got on the board, under
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1 cross-examination he said he spent a day or two
2 considering Quickturn's business. He had no problem
3 repricing options the first day. He had no problem
4 rejecting a bid that was within a range of fairness.
5 Six months is a sham.
6 THE COURT: You are repeating
7 arguments that have already been made. The argument
8 that wasn't made is the one that you led off with.
9 That is how does a shareholder -- what distorting
10 effect, if any, does the six-month delay period have
11 on a shareholder's vote.
12 MR. BERNSTEIN: Right.
13 THE COURT: I just want to make sure
14 I understand that. One of the arguments that
15 Mr. Abrams advanced was that there is evidence that
16 the combined nine-month delay, or perhaps it was just
17 six months redemption delay, would induce some
18 shareholders not to vote at all. I gather, however,
19 that your point is that the shareholder may vote, but
20 they would have to engage in a painstaking analysis,
21 some probability chart, to determine what might
22 happen so they could decide which way to go.
23 MR. BERNSTEIN: That's precisely
24 correct, with the only proviso that that is in
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1 addition to what the record evidence is, that some
2 shareholders might not vote at all. I'm trying not
3 to duplicate what Mr. Abrams said. Our brief and our
4 focus is the games theory, which we believe violates
5 Blasius.
6 THE COURT: How does it violate
7 Blasius?
8 MR. BERNSTEIN: It affects the voting
9 considerations by stockholders without any compelling
10 justification. And stockholder -- basically, Your
11 Honor, poison pills have been upheld by the Delaware
12 courts, as I understand it -- Your Honor understands
13 far better than I do, I am sure. The ultimate weapon
14 shareholders have -- that's how we started out today.
15 I agree with Mr. Nachbar on some things, as well.
16 This issue is here. Who is running
17 the show, the stockholders or directors? Poison
18 pills have been validated by the Delaware courts to
19 give target companies some leverage to negotiate,
20 subject to the ultimate check, the ultimate weapon
21 under Moran against Household. You can vote the
22 directors out if you are not happy with what they are
23 doing.
24 THE COURT: All right. You are
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1 saying that forcing the shareholders to engage in
2 this what you call game theory, or sophisticated
3 probability analysis, is tantamount to the purposeful
4 interference with the shareholder franchise that was
5 condemned in Blasius?
6 MR. BERNSTEIN: Absolutely our
7 position, Your Honor.
8 THE COURT: There is a qualitative
9 difference. Isn't there?
10 MR. BERNSTEIN: There is a
11 difference, but the effect is you are -- you are
12 tilting the playing field with respect to voting.
13 You are making shareholders decide who to vote for in
14 order to -- whether you can accept a takeover or not.
15 The ultimate -- the ultimate ratification, the
16 ultimate purpose, the ultimate vindication of a
17 poison pill is that the shareholders also have the
18 right to vote out directors if they don't like the
19 way the pill is being used.
20 Here, if you vote out the directors
21 because you don't like the way the pill is being
22 used, you are stuck back in the dilemma that you are
23 with directors that don't have the right to get rid
24 of the pill with respect to what is now the only and
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1 best alternative structure to the just say no.
2 THE COURT: What I'm really asking
3 you, is the evil of that situation that the
4 shareholders are forced to engage in this exercise,
5 or is it that once having engaged in the exercise,
6 they would more likely than not be tilted in favor of
7 voting for the incumbents; that is, against the
8 Mentor nominees, in which case, I gather, the effect
9 of the defensive measures is coercive.
10 MR. BERNSTEIN: It is closer to the
11 latter, Your Honor. I can't speak with personal
12 knowledge as to whether shareholders are going to
13 make the ultimate conclusion that they are better off
14 with the Quickturn board, who can redeem the DRP,
15 redeem the pill, but won't, than to buy into the
16 possibility that Mentor will still be there in six
17 months. My point is that they are going to have to
18 make this sophisticated analysis.
19 THE COURT: I'm trying to
20 determine -- I'm trying to make legal sense out of
21 that. If I understand you correctly, you are making
22 two separate arguments. If I don't understand you
23 correctly, I hope you will tell me.
24 One of the arguments is that the
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1 mere -- merely being required or forced to engage in
2 this game theory analysis is, of itself, a purposeful
3 interference with the franchise under Blasius.
4 MR. BERNSTEIN: I believe that's
5 correct.
6 THE COURT: Is that what you are
7 arguing?
8 MR. BERNSTEIN: Yes, Your Honor.
9 THE COURT: You are also arguing,
10 aside from that, that the circumstances, the
11 objective circumstances, are such that once having
12 engaged in that exercise, a rational shareholder
13 would be tilted toward voting against the Mentor
14 nominees, which is a coercion argument under Unitrin.
15 MR. BERNSTEIN: It's coerces them to
16 vote for Quickturn or makes them gamble on a
17 six-month delay.
18 THE COURT: Those are your two legal
19 arguments.
20 MR. BERNSTEIN: Yes, with respect to
21 that. I might also point out with the DRP, just
22 quickly -- I don't want to take other counsel's time.
23 Quickturn makes a point that the DRP and six-month
24 restriction is akin to a standstill agreement and any
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1 long-term contract in the ordinary course. That's
2 just plain wrong. It's a specious argument, Your
3 Honor. I don't know if that point has been made
4 adequately.
5 I have no particular problem with a
6 board in the ordinary course entering into a long-
7 term agreement or a standstill agreement. But the --
8 this DRP only binds certain boards. It doesn't bind
9 all boards. And the fact that it only binds certain
10 boards again goes into this issue of, "Who do I vote
11 for? Do I vote for the board that is bound or do I
12 vote for a board that is not bound?"
13 You can't look at the six-month
14 restriction against accepting that Mentor bid as a
15 simple standstill agreement with Mentor, because it
16 only binds the Mentor designees. Therefore, I have
17 to decide am I better off with a bound Mentor group
18 or with a Quickturn group.
19 With respect to the delay, just -- I
20 would like to point out very quickly -- Mr. Abrams
21 covered virtually everything. The ninety-day delay
22 on the bylaw issue, H&Q, as Mr. Abrams pointed out,
23 valued this company at 7.50 a share, based on the
24 public information of its research analysts just a
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1 couple months ago. Mentor has this public
2 information, too. They came in with a
3 $12-and-an-eighth bid.
4 Mentor made the bid in writing and
5 repeated thereafter -- they said, "Give us due
6 diligence. Maybe we'll come up with more money."
7 The Quickturn defendants won't give the due
8 diligence. They won't negotiate. They instructed
9 H&Q not to negotiate. They instructed H&Q not to
10 seek alternatives.
11 Our point is that the delay in this
12 case is completely unnecessary. It would have been
13 nice if the Quickturn defendants used this time to
14 get the due diligence, extract more money from
15 Mentor. If they are not doing the due diligence and
16 not seeking out alternatives, there is no purpose
17 seeking a delay. You won't get a higher price
18 without giving due diligence.
19 We are afraid that -- we are not
20 talking about a short-term 30 days or 90 days or six
21 months or eleven months, Your Honor. What we are
22 really talking about here is a gamble that Mentor is
23 going to walk. And Mr. Abrams doesn't say that he is
24 going to walk. He doesn't say he is going to stay.
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1 And frankly, that's a risk that I don't think the
2 Quickturn defendants should put us in. Nine months,
3 eleven months, these are numbers, as the trial
4 testimony will show -- hostile tender offers don't,
5 in virtually any circumstance, survive that long.
6 Indeed, the Quickturn board, had it
7 paid attention to the H&Q analysis, was advised that
8 none of these offers lasted more than five months.
9 Any offer, hostile offer, that lasted more than five
10 months --
11 THE COURT: Excuse me. Where do you
12 come up with that?
13 MR. BERNSTEIN: H&Q August 21 book
14 showed there was no successful hostile offer in this
15 industry that was open for more than five months.
16 THE COURT: Does it show that?
17 MR. BERNSTEIN: I believe it did.
18 THE COURT: Show me where it shows
19 that.
20 MR. BERNSTEIN: I misstated it, so I
21 withdraw it. That's how I understood it. I know
22 Mr. Cleveland testified that he wasn't aware of any
23 that lasted longer than that.
24 THE COURT: That may be, but the
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1 question is what the board knew.
2 MR. BERNSTEIN: Your Honor, what we
3 are afraid of is not a ninety-day delay or six-month
4 delay. The odds are stacked against this offer
5 succeeding if it's delayed by eleven months. If it
6 doesn't succeed at all, Mentor walks, there is no
7 alternative.
8 It's not a question of whether you
9 get your money in ninety days or 120 days or in
10 eleven months. If there was a letter of credit
11 posted and no conditions that this offer could last
12 until July 9th, maybe there could be negotiations,
13 but that's not the situation here. There are no
14 guarantees other than there is a pending offer that
15 can be withdrawn at any time.
16 The markets are very volatile.
17 Mentor is very volatile. Quickturn is very volatile.
18 The technology industry is very volatile. There is
19 only so much time that Quickturn needs to analyze
20 this or negotiate. They decided they don't want to
21 negotiate. They analyzed it. They made the
22 determination. It's now up to the stockholders to
23 decide.
24 If we wait until July, there may be
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1 nothing for the stockholders to decide, as a
2 practical matter. There may not be an offer there.
3 We don't know if there will be an offer there in
4 January. So cases that have allowed delay have
5 allowed delay for a purpose. At this point, there is
6 no purpose.
7 With that, Your Honor, if you have
8 any further questions, I could answer that, but I
9 think between the brief and Mr. Abrams' presentation,
10 I've covered what -- the key points we would like to
11 make.
12 THE COURT: Thank you, Mr. Bernstein.
13 MR. NACHBAR: Good afternoon, Your
14 Honor. Your Honor asked about the six undisputed
15 facts. And I didn't hear any disputed facts, really,
16 as to any of them, save one.
17 The one I heard, a factual dispute
18 from the other side on -- I'll explain why there
19 isn't a factual dispute -- is on the issue of
20 irreparable harm. Mr. Abrams said that there were
21 five relevant statements in the record, two from
22 Mr. Burch, one from Mr. Varelas, two from
23 Mr. Cleveland.
24 I'm going to go through those. None
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1 of them provides any evidence of irreparable harm.
2 There are some statements that I'll go through that
3 contradict any evidence of irreparable harm.
4 THE COURT: Before you do that,
5 Mr. Abrams made the point that the use of the term
6 "irreparable harm" in this context is somewhat
7 curious, because we are not in an injunctive mode.
8 We are in a summary judgment mode. And I'm a little
9 curious about that, too. Are we really talking about
10 the harmful effect, if any, or the absence of a
11 harmful effect of the defensive measures?
12 MR. NACHBAR: I think we used it as a
13 shorthand to cover two things. First, is this
14 preclusive? I'll lump coercive into that same
15 category. I'll show that the testimony shows that
16 it's not. And second, there is a required element of
17 the relief they sought. They brought this action
18 seeking a permanent injunction. They've got to show
19 irreparable harm. If there is a damage remedy, they
20 don't get a permanent injunction.
21 But I'll leave the irreparable harm
22 aside and let's talk about preclusive and coercive.
23 I think they are the same thing.
24 Mr. Burch, who is the other side's
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1 proxy solicitor, here is what his testimony was, Your
2 Honor. This is page 181.
3 "Question: If I described
4 MacKenzie's job as soliciting agent designations and
5 the mechanics of securing whatever percentage of
6 agent designations you sought to get or soliciting
7 tender shares, is there any Quickturn action that you
8 can point to that has made your job more difficult?"
9 Mr. Abrams then said, "Are you
10 purposely excluding the proxy solicitation with that
11 question? I believe you may have misspoken."
12 And Mr. Van Loben Sels, who took the
13 deposition, "No, I did not purposely omit it."
14 There is then colloquy and Mr. Burch
15 gives his answer.
16 "Answer: To some degree, some of the
17 actions have made our job easier and those same
18 actions can also make our job more difficult."
19 Then he gives an explanation. He
20 says that there is counterbalancing of the two
21 effects. That doesn't sound coercive to me, and it
22 doesn't sound preclusive to me.
23 He goes on a page-and-a-half later.
24 This is the second statement. He is asked, "Is there
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1 anybody out there who didn't submit a proxy because
2 of these actions?
3 "Answer: We have not yet
4 solicited -- well, we've mailed, but we haven't yet
5 really commenced our solicitation of proxies for
6 meetings, so people haven't told us they weren't
7 going to vote for us because of the bylaw yet and its
8 potential to delay that meeting," etc. So he doesn't
9 have any evidence.
10 Next we are told, well, we have to
11 look at what Mr. Varelas said. Let's do that, page
12 ninety and ninety-one. Mr. Varelas was asked how the
13 dead hand impacts this. And he said two things:
14 First, he said, "Well, it may prevent shareholders
15 from voting..." -- not it will. Not it has. Not
16 it's preclusive. Not it's going to coerce people.
17 "It may prevent shareholders from voting for our
18 offer."
19 Then he goes on to say, "Secondly,
20 we, as the acquirer, may not view the opportunity as
21 attractive given the fact that we will not be able to
22 take control of the company for an extended period of
23 time and, therefore, will not be able to yield the
24 business results which warrant the share price that
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1 we're offering," etc. He goes on.
2 He is not an officer of Mentor. But
3 leaving that aside, the fact of the matter is, Your
4 Honor, January 8th, if they win their proxy contest,
5 they are going to take control. They can put in
6 their own board members. They can fire the CEO.
7 They can put in their own people. They can do
8 whatever they want to do. I mean this ceases to be a
9 hostile offer after January 8th.
10 So all the stuff we have heard about
11 hostile offers for nine months and eleven months, the
12 question here is: Will the stockholder meeting be on
13 October 29 or will it be on January 8th?
14 Now if they get enough proxies -- and
15 there is no evidence that they are not getting
16 proxies because of anything we have done. They may
17 not be getting proxies because their offer isn't
18 adequate, like the state board of Wisconsin said.
19 But if they do get the proxies, they are going to
20 control the board. And it ceases to be a hostile
21 offer at that point. The board is then controlled by
22 people who are receptive to their offer.
23 So what we are talking about is a
24 little more than two months, between October 29th and
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1 January 8th. That's all we are talking about.
2 Finally, Mr. Cleveland, our
3 investment banker, is quoted, twice mentioned.
4 Extremely misleadingly, Your Honor. Page 86.
5 "Question: Do you personally have a
6 view on whether a dead-hand provision in a rights
7 agreement has an effect on the ability to replace a
8 target board of directors by proxy contest?
9 "Mr. Berger: A never-expiring dead-
10 hand provision?
11 "Mr. Beck: Yeah, the dead-hand
12 provision that was in existence on August 17, I'm
13 talking about."
14 That's the one before the amendment
15 here, Your Honor. That's the one that you could
16 never redeem.
17 He goes on, "Well, that could
18 decrease the likelihood of someone making an offer."
19 That is not the six-month delayed
20 redemption provision we are talking about. You know,
21 maybe the other side just made a mistake, or maybe
22 they know that. I don't know. But either way, their
23 citation is incorrect.
24 Now what we do know is that when
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1 Mr. Hinckley, who is the architect of this, set out
2 to get a bank commitment, he got a three-year bank
3 commitment on his financing. That's Hinckley pages
4 226, 227.
5 Why did he do that if he needed to
6 complete this offer in forty-five days, one might
7 ask. Mr. McMahon, of the bank, confirmed that the
8 financing will be available. I think he was asked
9 about June. It will be available in July, too. He
10 said it's available until the offer is consummated.
11 He was specifically asked if it would be available in
12 June of 1999. He said yes.
13 Mr. Hinckley was then asked, "Well,
14 you know, how have you been harmed by this?"
15 His answer was, "They've increased
16 our expense. They have slowed the process. They
17 have potentially jeopardized the business of
18 Quickturn."
19 That's it. Nothing about preclusion.
20 Nothing about coercion.
21 In fact, we know from the press
22 release that they put out today that they now have
23 tenders for over 40 percent of the stock. Mr. Burch
24 testified that tenders don't come in until the last
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1 minute and a lot of people wait. They have also
2 testified -- Mr. Richardson testified that he was
3 told at the mid-September board meeting that their
4 tenders are ahead of where they were projected.
5 This business about this being
6 preclusive and coercive, it's a figment of some
7 lawyer's imagination. There is absolutely no record
8 support for that.
9 And I would submit that the lawyers'
10 arguments are not cognizable on this motion. But if
11 they are going to make arguments like Mr. Bernstein
12 did about prisoner's dilemmas, and things like that,
13 let's look at what the Court has said about that.
14 NWA case. Identical delayed
15 redemption provision. The Court says that because
16 there are two slates, both of which are committed to
17 selling the company, there will be a slight effect on
18 voting, although the Court says, "I'm rather
19 unimpressed that that will have an effect."
20 The Court then goes on to say, "Had
21 the NWA board not recently announced itself willing
22 to consider a value-enhancing transaction I would
23 feel more confident that the real issue facing the
24 shareholders is whether they want the company sold
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1 now or not. In that context, the issue would have
2 been clearly joined and the delayed redemption
3 provision would have seemed a relatively
4 insignificant cloud."
5 That's where we are, Your Honor. The
6 issue has been joined. Relatively insignificant
7 cloud. That's not coercive. That is not preclusive.
8 We also heard there have been no
9 tender offers that have been kept open for nine
10 months. We haven't done an exhaustive study over
11 lunch, but I thought of two of them that I knew were.
12 One is the Holly Farms case, litigated in this Court,
13 where a hostile offer was opened and successfully
14 concluded after, I think it was, ten months. The
15 other is the Bally Alliance Gaming case, that was
16 also litigated.
17 The lawyers' arguments aren't
18 sufficient to resist summary judgment. You have got
19 to come forward with facts. The other side had the
20 opportunity to do so. They have failed.
21 We heard about the -- whether the
22 180-day period was a reasonable period and whether
23 the board made any investigation. There were
24 discussions about that at the board meeting, and the
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1 other side got testimony about that. It's in our
2 briefs. Hasler deposition 33 is certainly one place
3 where that was discussed.
4 And there were discussions on
5 counsel -- with counsel about these issues. And this
6 is undisputed. It meets the Van Gorkom obligations.
7 And I don't believe that Van Gorkom requires you to
8 disclose substantive advice of counsel in order to
9 say to the board, "Operate it appropriately." I'm
10 not aware of any case that says that.
11 There was a statement made in reply
12 that Mr. Cleveland wasn't asked any questions about
13 the bylaw amendment. That's false. Mr. Cleveland's
14 testimony, page 88 and page 89, he couldn't recall
15 specific questions, but he said there was extensive
16 discussion and extensive questions about that.
17 In terms of the January 8 day, I
18 think that's not disputed now. But in all events,
19 for the record we put out a press release on October
20 1. I believe it is appended to a securities law
21 filing. But it's certainly publicly announced.
22 There is no mystery about it.
23 You know, for the reasons that we
24 have previously said, we believe and the board
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1 believed that the ninety-to-a-hundred-day period was
2 akin to an advanced notice provision and was
3 reasonable. I would only point out that at the time
4 that the board enacted that, they didn't know -- the
5 board, I think, expected that the agent designations
6 might be delivered immediately. You only need 10
7 percent. Mentor already had 3-and-a-half percent.
8 There were several large stockholders. It was
9 possible that the request for a meeting would be
10 delivered the next day. The board set forth a
11 reasonable period, ninety to a hundred days. It
12 keyed that to indicate a determination was made that
13 the meeting had properly been requested.
14 Finally, there was this question
15 about reasonable investigation and the first prong,
16 as opposed to the second prong, of Unitrin. There is
17 no dispute here that there was a threat to corporate
18 policy and effectiveness. The first prong was
19 satisfied.
20 Mr. Abrams says that you have got to
21 act in accordance with Van Gorkom and reasonable
22 investigation in the first prong. I think as a
23 matter of law he is correct about that. But here
24 there is no dispute. I mean one of the reasons that
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1 specifically is in the minutes of the board meeting
2 and in the 14D-9 is the situation vis-a-vis the
3 intellectual property rights.
4 It was not a coincidence that this
5 offer was made seven days after a critical federal
6 circuit court ruling affirming the validity of our
7 patents. We asked about that. We asked Mentor's
8 directors about that. They refused to answer on the
9 basis of attorney/client privilege. But we do know
10 what they said in the letter that they handed us on
11 the night of the 11th, the night before they
12 commenced their offer.
13 At the same time they were calling
14 the Wall Street Journal to place the ad for the
15 tender offer, they handed our chairman a letter.
16 They said right in the letter, "In addition, in
17 separate patent infringement lawsuits over the past
18 two-and-a-half years, Mentor Graphics has sued
19 Quickturn and Quickturn has sued Mentor Graphics.
20 The acquisition will resolve these disputes between
21 our companies, which otherwise will continue to
22 require substantial time and expense and represent a
23 significant distraction for both companies well into
24 the future."
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1 Director Richardson, Mentor director
2 Richardson, also said one of the attractive reasons
3 for going forward with the offer was that it would
4 allow Mentor to sell its otherwise infringing
5 products. There is no question that that was one of
6 the factors that Mentor took into account. There is
7 no factor that that's a 180-degree reversal of where
8 the company otherwise would be in its strategy. That
9 is a threat. That is a threat to corporate policy
10 and effectiveness. Action was taken in response to
11 that threat.
12 For the reasons previously stated, I
13 think those actions, in the circumstances, are
14 reasonable and they pass the Unocal test. But it's
15 certainly a Unocal test, not a Blasius test. I won't
16 repeat that argument.
17 Finally, I would note in passing that
18 we also asked for summary judgment on Section 203,
19 the issue there being that the failure to approve the
20 offer pursuant to 203 is a question of business
21 judgment, rather than a Unocal or Blasius question.
22 The other side makes some legal argument that we
23 think is erroneous. We haven't heard anything about
24 it here today. And we believe we are entitled to
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1 summary judgment on that as well.
2 Thank you, Your Honor.
3 THE COURT: It's now five minutes of
4 three. Let me just inquire, do counsel wish to go
5 forward with the motion to compel or to argue that at
6 a different time, with the motion in limine.
7 MR. BERGER: Your Honor, David
8 Berger. We are prepared to move forward with the
9 motion to compel, if it's convenient for the Court.
10 I don't think it touches upon the motion in limine.
11 On the other hand if Your Honor
12 wishes to defer it to another day, we are willing to
13 do that, if the summary judgment --
14 MS. SCHMIDT: We are prepared to
15 argue that today, Your Honor, in the time remaining.
16 THE COURT: I will impose an
17 arbitrary 30-minute deadline to complete argument on
18 that. I'm also going to take a five-minute recess.
19 We will reconvene at 3:00 o'clock.
20 (Recess at 2:55.)
21 THE COURT: Mr. Berger, before you
22 begin, before the recess, I neglected to do the most
23 important thing, I guess, from your standpoint. That
24 is to announce what it is that I'm going to do.
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1 It is probably no surprise that I'm
2 going to take the motion under advisement. I'm not
3 in a position to decide the summary judgment motion
4 from the bench, and I will get back to counsel as
5 soon as I can with respect to that. So let's now
6 proceed on the motion to compel.
7 MR. BERGER: Thank you, Your Honor.
8 David Berger, from Wilson, Soncini, Goodrick &
9 Rosati. It's again a pleasure to appear in this
10 Court.
11 Your Honor, our motion is very brief,
12 and I think rather straightforward, and summarized
13 amply in our papers. Just a couple of very quick
14 issues.
15 One, we are seeking the depositions
16 of two individuals, Mr. Jon Shirley, who is the
17 chairman of Mentor's board of directors, and Bernd
18 Braune, who is the head of the Mentor business unit,
19 which competes directly with Quickturn, and we
20 understand recently is also the one who has been
21 having some discussions that are directly relevant to
22 this action. Those are the two depositions we are
23 seeking.
24 The second portion of our motion
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1 deals with a request to overrule Mentor's objections
2 on the basis of the business-strategies privilege.
3 Mentor has asserted that privilege to block
4 testimony, to withhold documents, based upon --
5 solely upon their current offer.
6 The only discovery we are seeking
7 that is at issue with the business-strategies
8 privilege has to do with the analyses of their
9 current offer. We are not seeking to inquire into
10 what Mentor may do in the future, how they may value
11 Quickturn six months from now, or what decisions they
12 may make in the future.
13 THE COURT: All right. What I would
14 like to do, Mr. Berger is bifurcate the argument.
15 MR. BERGER: Sure.
16 THE COURT: They are very different
17 questions.
18 MR. BERGER: Yes.
19 THE COURT: Let's take the deposition
20 issue first. Is it correct that your argument is,
21 basically, that when counsel appeared before Vice
22 Chancellor Steele, Vice Chancellor -- Vice Chancellor
23 Steele ruled that would you be entitled to take those
24 depositions?
166
1 MR. BERGER: That's with
2 Mr. Shirley's deposition. That's clear. I don't
3 want to repeat that. I don't think I need to. It
4 shouldn't be reargued.
5 Mr. Braune -- we sought the
6 deposition of Mr. Braune very early on. It was not
7 argued before Vice Chancellor Steele. We originally
8 understood that Mentor was going to produce
9 Mr. Braune for depositions. At the last minute, he
10 was not produced for deposition.
11 There is this claim -- the only
12 issue, as I understand it, in Mr. Braune's deposition
13 is that it's after the discovery cutoff date in this
14 action. We have not agreed to any discovery cutoff
15 date in this action. Indeed, we are not even going
16 to finish identifying witnesses for trial until
17 October 10th. We have -- the parties have agreed
18 after October 10th, any witnesses who have been so
19 identified who have not yet been deposed can be
20 deposed -- there is a slight disagreement on this
21 issue, but can be deposed subsequent to October 10th
22 is for sure.
23 THE COURT: All right. Thank you.
24 MR. BERGER: That's it with the
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1 depositions.
2 THE COURT: I think you clarified the
3 issue.
4 MS. SCHMIDT: Good afternoon, Your
5 Honor. With respect to the depositions, Mr. Berger
6 is relying on Vice Chancellor Steele's ruling but has
7 not explained the circumstances and the entire
8 ruling.
9 At the time that Vice Chancellor
10 Steele was asked to rule on whether they could have
11 two outside directors, they had agreed to produce to
12 us all of the outside directors on Quickturn's board,
13 unable to make a determination as to which particular
14 directors would be relied upon at trial.
15 At the time they made that decision,
16 we had asked specifically for Director Antle, D'Amour
17 and Huang. We found out during the course of
18 depositions that Mr. Huang was unavailable.
19 Apparently, his unavailability was being pigeon-holed
20 under a prong of the second of Vice Chancellor
21 Steele's rulings, which was we had to respect the
22 business commitments of these directors. Therefore,
23 we were only entitled to take half-day depositions,
24 at best, because these were busy people.
168
1 We explained to Mr. Berger at the
2 time that we were having similar problems with
3 Mr. Shirley; if that's the rule that was going to be
4 applied, we would live with that. He refused to do
5 so, and so we offered a compromise. We would produce
6 Mr. Shirley, Mr. Braune, and help facilitate Arthur
7 Andersen, for their production of the remaining
8 witnesses, which have been unavailable to us,
9 Mr. Huang, Mr. Alberding, and the remainder of
10 Mr. Kissner, who was pulled after three hours because
11 of his business commitments. Mr. Berger refused that
12 offer, and that is why he doesn't have Mr. Shirley.
13 With respect to Mr. Braune, they
14 identified in a 30(b)(6) notice the topics they now
15 seek from Mr. Braune. Mr. Hinckley was produced for
16 two days to address those topics. If they chose not
17 to address them with Mr. Hinckley, that is not an
18 excuse to obtain further discovery after the cutoff.
19 As to the lack of agreement,
20 Mr. Berger explained to Vice Chancellor Steele at
21 page twenty of the transcript, "Depositions are from
22 the 15th through the 23rd in this action. That's all
23 the time we have. They want to depose each of the
24 directors. They want to depose third parties. We
169
1 don't have the time to have full-day depositions for
2 each."
3 We took eight depositions. They took
4 fourteen. It begs the question who the defendants
5 are in this action.
6 THE COURT: Well, you don't have any
7 counterapplication to take the depositions of the
8 directors on their side that you want. Is that
9 correct?
10 MS. SCHMIDT: If Your Honor is
11 inclined to extend discovery, we certainly will have
12 a counterapplication. But we feel that for the
13 positions taken by the parties previously, discovery
14 has been concluded.
15 THE COURT: Well, I'm confused.
16 Mr. Berger says that there has been no agreement to a
17 cutoff. You are saying there has been an agreement.
18 MS. SCHMIDT: Absolutely. Mr. Berger
19 used the fact that discovery was only going to take
20 place between the 15th and 23rd to obtain the ruling
21 that we could only take the defendants in this action
22 for half days. So to now turn around and say there
23 is no agreement I believe is a bit disingenuous.
24 THE COURT: All right.
170
1 MS. SCHMIDT: Thank you.
2 MR. BERGER: Your Honor, very brief
3 reply to this issue. Again, all argument before Vice
4 Chancellor Steele --
5 THE COURT: Not all. Just Shirley.
6 MR. BERGER: Just Shirley. But the
7 issue of the discovery cutoff, which is now being
8 raised by my colleague on the other side -- we came
9 in, we believed, under the original schedule. We
10 thought it made sense to do very expedited discovery.
11 In the argument before Vice
12 Chancellor Steele, Mr. Laster argued in opposition to
13 me, and did a splendid job and convinced Vice
14 Chancellor Steele that we had to identify trial
15 witnesses by October 10th, and that afterwards, if
16 there were witnesses that had been so identified that
17 had not been deposed, you would depose them
18 afterwards, after October 10th. That was --
19 So the notion there is a discovery
20 cutoff when they are going to identify their
21 witnesses by October 10th, and we still have to
22 identify ours -- indeed, just this past week there
23 was correspondence between Mr. Abrams and my partner,
24 Mr. DiBoise, concerning additional depositions.
171
1 These are expert depositions.
2 THE COURT: What is the significance
3 of the October 23rd date?
4 MR. BERGER: September 23rd date.
5 THE COURT: September 23rd.
6 MR. BERGER: Originally, it was
7 limiting fact discovery to September 23rd. We talked
8 about limiting the number of depositions. Neither of
9 those positions were accepted by the plaintiffs. The
10 issue now, that there is a quid pro quo from
11 Mr. Shirley's deposition, again wasn't raised by
12 before Vice Chancellor Steele.
13 I could go into the offer that was
14 given to me. It's not worth it. Vice Chancellor
15 Steele spoke loud and clear on Mr. Shirley's
16 deposition. We are happy to do Mr. Braune's
17 deposition in a half day, as well.
18 If there are no further questions --
19 THE COURT: No, there are no further
20 questions as to that. Obviously, any ruling on these
21 issues may be viewed by some as a signal as to how
22 the Court is going to rule on the summary judgment
23 motion. After all, what difference does any of this
24 make if your side is entitled to summary judgment.
172
1 So what I'm going to do is rule in the context of
2 this case going to trial, which is yet to be decided.
3 MR. BERGER: That's fine, Your Honor.
4 If you were to rule in favor of us on summary
5 judgment, we will withdraw the motion.
6 THE COURT: You can go ahead and take
7 Mr. Shirley's deposition. You can take Mr. Braune's
8 deposition. If, however, there is a need on the
9 other side to take additional discovery and you can't
10 agree to that -- obviously, both sides are going to
11 have to be reasonable -- then the other side, Ms.
12 Schmidt, may apply for relief from the Court. That
13 is, I'm going to open up -- this will be a two-way
14 street if the case is going to trial, not one way.
15 MS. SCHMIDT: Your Honor, we would
16 make that application today, orally, only because of
17 the pressures of time. If the case is going forward,
18 we are approaching trial and we want time to conduct
19 the additional depositions. We asked for, in our
20 letter on September 23rd, specifically Mr. Huang,
21 Mr. Alberding, and the continuation of Mr. Kissner.
22 MR. BERGER: Your Honor, I would ask
23 the papers be submitted on that issue. The problem
24 with that is they have deposed six of our eight
173
1 directors. It's not like they have --
2 The difference between the two sides
3 is this: We have had one outside director from
4 Mentor deposed. They have had six of our eight
5 members of our board. The only two members of our
6 board who have not been deposed are Mr. Alberding,
7 who lives in upstate New York and had some personal
8 issues, and Mr. Huang, who had business issues that
9 took him away.
10 There is no question -- I will make
11 that representation right now. We are not going to
12 offer Mr. Alberding's testimony or Mr. Huang's
13 testimony at trial. I don't see the need for their
14 depositions. I'm happy to present Kissner.
15 THE COURT: I'm not in a position to
16 rule on that. All I'm saying is that as far as I'm
17 concerned, this is a two-way street. If there are
18 valid reasons, apart from that, for the other side
19 not being permitted to take discovery of those
20 witnesses, I'll consider it. But I'm going to have
21 to consider it based on some exchange of letters. I
22 can't do it right now.
23 MR. BERGER: Okay. Second issue,
24 very briefly, the business-strategies privilege. Our
174
1 assertion is they have used the business-strategies
2 objection to block inquiry at depositions of their
3 financial advisor, as well as Mr. Hinckley, and I
4 believe one other representative. They have actually
5 used the business-strategies assertion to withhold
6 from production the few key documents they have
7 remaining concerning their analysis of the tender
8 offer. As you know, at the beginning --
9 THE COURT: Let me stop you for a
10 minute.
11 MR. BERGER: Sure.
12 THE COURT: I have trouble with what
13 it is you are trying to find out, and why this is
14 important to your case, where the issue is the
15 conduct of your clients.
16 MR. BERGER: The issue is the conduct
17 of our client. The real issue is the value of
18 Quickturn. And just as Mr. Abrams, in his argument,
19 handed you up that chart, the bar chart from
20 Hambrecht & Quist, we believe that the analysis that
21 is being withheld here shows unequivocally that
22 Mentor valued Quickturn, at the time it made its
23 offer, at considerably more than 12-and --
24 12-and-an-eighth; indeed, considerably more than the
175
1 values that are in the H&Q presentation.
2 What this evidence will do is it
3 will -- it will buttress the board's argument that
4 the offer is inadequate. It surely is impermissible
5 for Mr. Abrams on the one hand to argue that the
6 Quickturn board acted irresponsibly in determining
7 that the offer was inadequate and on the other hand
8 to withhold from production his analyses, the
9 analyses of their financial advisers, that show
10 conclusively, we believe, that the offer was far
11 below the value of Quickturn.
12 And if we are going to face here at
13 trial the Salomon Brothers representative or a
14 representative from Mentor that is going to say the
15 price is at this great premium and this spectacular
16 offer and the Quickturn board breached its fiduciary
17 duties in accepting this offer -- I'm sorry -- in
18 rejecting this offer as inadequate, then we ought to
19 be able to inquire into what the analyses from Mentor
20 showed.
21 THE COURT: Are you aware of any
22 authority, any cases, in which the target board was
23 allowed to take that kind of discovery from the
24 hostile acquiror?
176
1 MR. BERGER: Well, Your Honor, the
2 issue has usually come up, again, in the business-
3 strategies privilege. And the business-strategies
4 assertion is very, very limited. It covers, solely,
5 issues going into future plans and future prospects.
6 That's what all the commentaries say. That's what
7 the cases say. So the typical issue where it comes
8 up is the bidder with the target withholding
9 information about its plans.
10 THE COURT: Right. That's why I'm
11 asking whether there is any authority for what you
12 are trying to do.
13 MR. BERGER: Your Honor, the only
14 time I'm aware that this issue has been raised is in
15 the Circon/U.S. Surgical case, where Chancellor
16 Chandler addressed the issue and was -- I think he
17 denied the request for additional discovery.
18 THE COURT: All right.
19 MR. BERGER: Thank you.
20 MS. SCHMIDT: Your Honor addressed
21 this issue in the Atlantic Research Corporation case.
22 And Your Honor concluded --
23 THE COURT: That was a lifetime ago.
24 Wasn't it?
177
1 MS. SCHMIDT: It's still good law, as
2 far as I know.
3 THE COURT: Was that discovery being
4 sought of the bidder?
5 MS. SCHMIDT: Yes, it was.
6 THE COURT: What kind of discovery?
7 MS. SCHMIDT: Business-strategy type
8 information. And --
9 THE COURT: You mean how they valued
10 the target?
11 MS. SCHMIDT: Yes. I believe so.
12 It's a transcript ruling, so it's limited. But Your
13 Honor stated in that opinion, "..the decision of the
14 Atlantic directors as to whether and the extent to
15 which Clabir constituted a threat, and the need to
16 adopt the pill in response, is a decision the
17 validity of which has to rise or fall on what the
18 directors knew and considered at the time that they
19 adopted the pill, and should not be considered on the
20 basis of what they did not know and what they did not
21 consider."
22 They did not know anything regarding
23 the Mentor strategies. They could not have known
24 that. They did not consider that. In addition, just
178
1 as we are not entitled to know what price Quickturn
2 would accept, they are not entitled to know the
3 highest price Mentor might be willing to offer. If
4 they wanted to know that information, instead of
5 trying to pierce the business-strategy privilege,
6 they should enter into negotiations. Mentor has
7 continuously expressed a willingness to do so, and
8 they have continuously refused. But the fact that
9 they rejected the first offer doesn't mean that the
10 strategy is dead. Therefore, it would always be in
11 the bidder's control. Reject the first offer, find
12 out the range and hold out for more. The strategy is
13 meant to be a two-way street.
14 Also, Your Honor, it's not true that
15 they have provided us with all of their analyses.
16 They have not. They have not let us investigate what
17 the direct -- what analyses the directors themselves
18 might have performed in connection with considering
19 this offer. And they have asked for, and we have
20 returned, documents prepared by H&Q which outlined
21 what other potential bidders could pay.
22 There is no testimony that there are
23 continuing negotiations with any of these bidders.
24 In fact, Mr. Cleveland testified that these were done
179
1 just to show if someone else could pay more, maybe
2 Mentor's offer wasn't where it should be. Well,
3 under their theory, if Mentor's offer has been
4 rejected, those types of documents would not be
5 protected under the business-strategy privilege,
6 because they went to the rejection of Mentor's offer.
7 So we are not seeing the same
8 application of this privilege, and I would submit
9 that for the same reasons Your Honor held in Atlantic
10 Research Corporation, they are not entitled to
11 Mentor's business strategies.
12 MR. BERGER: Again, Your Honor, I'll
13 be very, very brief. When I argue cases and try
14 cases, it's beyond my belief that the one side can
15 put at issue an issue -- here, the valuation of
16 Quickturn. They are allowed to look at our documents
17 and allowed to take evidence as to what our
18 investment banker and -- thought was the value of the
19 company, and we can't get the same information from
20 them, to impeach their arguments; that by looking at
21 the chart that was handed up, the chart is right and
22 the offer is invalid.
23 THE COURT: Well, Mr. Berger, that's
24 one of the problems with privilege. That is,
180
1 privileged information, by its nature, is almost
2 always relevant. It can be used for impeachment
3 purposes in many different ways to harm the case of
4 the other side. But for public policy reasons, that
5 information is made unavailable to serve other ends
6 that are deemed to be more important from a social
7 point of view. I think that's the case here.
8 I'm not persuaded, assuming there is
9 a compelling-need standard -- I don't know that to be
10 the case -- that you have shown any compelling need
11 to have this information. All your clients have to
12 do is to defend on the basis of what they reasonably
13 perceived and knew at the time. There is a -- the
14 problem is that in allowing your side to have that
15 information, there is a real risk concerning the
16 kinds of strategic information going to what they are
17 willing to pay, and how much would be discoverable,
18 and that is precisely the area that is protected
19 under the business-strategy privilege.
20 MR. BERGER: Your Honor, if I might
21 just for one moment follow up, isn't that precisely
22 the same issue that we faced when we handed over
23 documents like the chart that we handed over to the
24 other side? That is, what I'm having difficulty
181
1 understanding is the distinction and why that
2 privilege doesn't attach to documents going to our
3 analysis of the prior offer, versus their analysis of
4 the prior offer.
5 I would certainly agree with Your
6 Honor that we are not entitled to understand their
7 bidding strategies, or what information -- they may
8 do in the future. We are not seeking that. I'm just
9 looking for information regarding the current offer,
10 which by definition isn't part of any future
11 strategy.
12 THE COURT: I've heard you say that,
13 but I'm not sure what it is you are asking for that
14 wouldn't encroach on the area that is precluded by
15 the privilege.
16 MR. BERGER: Okay, Your Honor. Thank
17 you.
18 THE COURT: All right. The Court
19 stands in recess. I'll get back to counsel as soon
20 as I can.
21 (Recess at 3:25 p.m.)
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1 CERTIFICATE
2 I, WILLIAM J. DAWSON, Official Court
3 Reporter of the Chancery Court, State of Delaware, do
4 hereby certify that the foregoing pages numbered 3
5 through 181 contain a true and correct transcription
6 of the proceedings as stenographically reported by me
7 at the hearing in the above cause before the
8 Chancellor of the State of Delaware, on the date
9 therein indicated.
10 IN WITNESS WHEREOF I have hereunto
11 set my hand at Wilmington, this 9th day of October,
12 1998.
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14
15
Official Court Reporter
16 of the Chancery Court
State of Delaware
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