First Security Corp. issued supplemental proxy materials to its shareholders early Wednesday with a cover letter that makes it clear Utah's largest bank holding company is prepared to play hardball if Zions Bancorp. fails to follow through and complete its merger with the embattled company.
Admitting that there is "significant risk" that Zions shareholders won't approve the deal once they see new proxy materials being sent out by Zions, First Security chairman and chief executive officer Spencer F. Eccles stopped just short of threatening a lawsuit if the once congenial, now rancorous marriage fails to take place."First Security believes that Zions is in breach of its obligations . . ." to use its "reasonable best efforts" to complete the deal, Eccles tells shareholders in the cover letter. He adds that Zions should stop taking actions that could kill the deal and warns Zions' board of directors that it has failed in its obligation to "at all times continue its recommendation of the merger."
The letter says First Security is going ahead with its own shareholders' meeting, scheduled for 11 a.m. Wednesday, March 22, at the Marriott Hotel downtown, at which shareholders also will be asked to approve an "alternative structure" to the deal. Zions has postponed its shareholders meeting until March 31.
First Security is proposing that the deal now be structured as a "reverse triangular merger" in which FSCO (First Security's stock symbol) would establish a new subsidiary that would then merge into Zions. Under this structure there would be no change in the amount each Zions shareholder would receive for their stock. Nor would it change the tax consequences or accounting treatment for either bank.
Eccles went on to warn that his company "is prepared to pursue all options available to it to protect its interests and the interests of its stockholders," then adds that he and his associates "still remain hopeful" that Zions will honor its prior commitments and take the necessary actions "so that the transaction can go forward as planned."
But that scenario seems unlikely at this point.
Global securities firm Donaldson, Lufkin & Jenrette (DLJ) told its clients this week that the "recent developments" in the merger "make it considerably more likely that the . . . transaction (will be) voted down by shareholders on March 31."
Those developments include: First Security's announcement last week that it expects its first-quarter earnings to be down as much as 27 percent, the retraction Monday by investment banker Goldman Sachs Group Inc. of its former opinion that the stock swap deal is fair to Zions' shareholders, and the decision by Zions to postpone its March 22 shareholders meeting so that it can mail out "new information" and new proxy cards with which they can change their votes -- presumably from in favor of the merger to against it.
The Deseret News has not seen the supplemental information being sent out to Zions' shareholders but DLJ says it "understands" that the material is likely to include language permitting Zions insiders -- executive management and directors -- to vote against the merger.
DLJ points out that while the merger needs only a simple majority (51 percent) of Zions shares voting "yes" to be approved, the combination of 46 percent institutional ownership of Zions' shares -- which DLJ's analysts say are now "very likely" to vote against the deal -- plus another 8 percent of shares owned by the family of Harris H. Simmons, president and CEO, and other executives and directors, who would then be allowed to vote against the deal, "should tip the scales toward a defeat by shareholders, a somewhat unprecedented event."
DLJ also notes that the new proxies being sent to Zions' shareholders are not likely to include management's support of the deal this time as they did the first time around. That, says the firm, should also increase the number of retail, or individual, investors who are likely to vote against the marriage of the two banks.
"We would also note," says DLJ, "that if the merger fails to close by March 31, 2000, either party can walk away from the transaction without penalty."
First Security strongly disagrees with that. In its Wednesday mailing the bank said it has informed Zions that the agreement would require Zions "to take additional actions past March 31," including calling another shareholders' meeting, if the contract isn't upheld due to Zions' "breach" of the agreement. "First Security intends to reserve all rights . . . to hold Zions accountable for its actions," the proxy materials state.
Eccles says his bank doesn't agree with Goldman Sachs' opinion that the deal is no longer fair to Zions shareholders, pointing out that its own financial adviser, investment banker J.P. Morgan Securities Inc., has reaffirmed as of Feb. 17 -- the same date that Goldman Sachs issued its original fairness letter that it has since recanted -- the fairness of the exchange ratio of 0.442 share of Zions stock for each FSCO share.
Other than a brief statement issued Monday announcing the Goldman Sachs decision and the delay in voting on the merger, Zions hasn't been talking about its intentions. DLJ makes that point when it states ". . . we remain unclear about the motivations of Zions' management at this stage. Does management really want the transaction to fall through, or is this posturing for a renegotiation of terms?"
DLJ says it "suspects" that Zions' management is still interested in pursuing the deal if the terms can be successfully renegotiated, given Zions' earlier statements on the benefits of merging with First Security.
And given what it terms "First Security's somewhat limited strategic alternatives at this point, we expect FSCO would also be interested in a renegotiation, particularly now."
Brad Hansen, senior vice president in the Salt Lake office of brokerage firm D.A. Davidson & Associates, told the Deseret News on Tuesday that if the deal falls through, First Security shares could trade down to as low as $8 or $9, compared to $11.37 in early trading Wednesday (down 0.27 percent). DLJ predicts a range of $8.50 to $9.50 in that event. Zions shares were up 1.89 percent at $37.12 in early trading Wednesday.
The investment firm said it would also be surprised if Zions were to renegotiate a deal which "included the originally agreed upon management structure."
DLJ said it is maintaining its current market performance rating on Zions' shares until it "obtains clarity" on where the company's management is going with the deal, something it concedes may not occur until the March 31 shareholder vote.
"If the merger fails to close, we are likely to revise our rating upward (on Zions' stock) as this would remove significant . . . risk and double the size of DST (Zion's subsidiary technology company) relative to the whole.
"However, Zions shares, while well off their highs, remain expensive . . . currently trading at a 50 percent premium to the mid-cap bank group."