BEA Systems' largest shareholder is demanding that its board of directors allow shareholders to vote on a $17-per-share purchase offer from Oracle, which is set to expire at 5 p.m. Pacific Time Sunday.
Carl Icahn, who holds more than 58 million shares of BEA stock, said in a statement that he has begun lawsuit proceedings in Delaware to force an annual shareholder meeting "before any scorched earth transactions (such as stock issuances, asset sales, acquisitions or similar occurrences) take place at BEA, other than transactions that are approved by shareholders."
The investor accused BEA's board of intending "to find ways to derail a sale and maintain your control of the company." BEA's board has repeatedly rejected Oracle's bid to buy the company, demanding $21 per share. Oracle's offer amounts to $6.7 billion, while BEA's demand works out to $8.3 billion. Oracle has called that price "impossibly high."
Icahn said BEA can avoid litigation if it conducts an auction sale, allowing shareholders to consider offers from the highest bidder.
"BEA should not allow the stalking horse bid from Oracle to disappear (failure to take the Oracle bid as a stalking horse would be a grave dereliction of your fiduciary duty in my view)," he wrote. "But if no topping bid arises it should be up to the BEA shareholders to decide whether to take the Oracle bid or remain as an independent Company."
Icahn also demanded that "BEA should agree not to take any action that would dilute voting by issuing stock, entrench management or derail a potential sale of BEA."
Shares of BEA stock closed at $16.50 and were trading at $16.75 after hours on Friday.
A BEA spokesman could not immediately be reached for comment.