InBev files suit to let Anheuser holders ax board

By Martinne Geller and Emily Chasan

NEW YORK (Reuters) - InBev NV INTB.BR said on Thursday it filed a lawsuit to confirm that Anheuser-Busch Cos Inc BUD.N shareholders can remove the entire 13-member board without cause, as it seeks avenues of support for its $46.3 billion takeover bid.

While the move was seen by experts as the beginning of what could become a hostile takeover bid for Anheuser-Busch, InBev said its "strong preference" is to enter into a constructive dialogue with the U.S. brewer's board to achieve "a friendly combination."

The Belgian-Brazilian maker of Stella Artois and Beck's has launched a $65-per-share bid for the Budweiser brewer, but the Anheuser-Busch board of directors rejected the offer on Thursday, saying it undervalued the company.

"What we see now is how quickly what was a relatively friendly offer has devolved," said Anthony Sabino, a law professor at St. John's University's Tobin College of Business in New York.

"The legal maneuver is right out of the playbook in mergers and acquisitions. They want to have a shareholder vote and get their people on the board."

Anheuser-Busch got approval in 2006 to destagger its board elections but is still phasing in the changes, meaning some board members must be reelected annually while others can serve longer terms.

In the lawsuit filed in Delaware Chancery Court, InBev said that under Anheuser's corporate charter and state law, it is clear that eight directors elected after 2006 are subject to removal without cause through written shareholder consent.

The suit seeks to confirm that the remaining directors, who were elected before Anheuser changed its board rules, are also now subject to removal through the same mechanism, InBev said.

"The tricky part is ... director removal provisions," said Shirley Westcott, managing director of policy for proxy advisory firm Proxy Governance Inc. Westcott said it would be up to the Delaware court to decide such an issue.

An Anheuser-Busch spokeswoman was not immediately available for comment, but the company's Board moved swiftly on Thursday to change its bylaws regarding shareholder written consent actions.

The company said in a U.S. Securities and Exchange Commission filing that its board had altered the company's bylaws to change the process of establishing a record date for shareholders to launch a written consent action.

"They are enhancing their defenses slightly," said Steven Davidoff, a law professor at Wayne State University Law School in Michigan. "It gives them some control over the timing of which shareholders vote."

The company's shares closed down 41 cents at $61.35 on the New York Stock Exchange.

(Editing by Mark Porter and Phil Berlowitz)