Icahn sues Dell in latest attempt to foil buyout

Activist investors asks court to block rule changes proposed by Michael Dell ahead of shareholder vote

PUBLISHED : Friday, 02 August, 2013, 10:33am
UPDATED : Friday, 02 August, 2013, 10:33am

Activist investor Carl Icahn has sued Dell and its board, his latest attempt to derail a US$24.4 billion buyout bid by the computer maker’s founder and chief executive Michael Dell.

Icahn asked a court to block rule changes Michael Dell has proposed ahead of a shareholder vote set for Friday. Icahn and his affiliates also want the court to stop Dell from changing the record date by which shareholders must have purchased their shares in order to vote.

They want to stop Michael Dell from voting any Dell shares acquired since February 5 at any annual shareholder meeting. The February 5 date was when his buyout bid was announced. The lawsuit also seeks the court to bar the company from changing any shareholder voting requirements.

The lawsuit, filed in the Court of Chancery of Delaware, seeks to force the company to call an annual shareholder meeting on the same day as the special meeting on the buyout in case Dell sets a new record date.

“My personal reaction, bombastic,” said Larry Hamermesh, a professor at the Widener University School of Law in Wilmington, Delaware, referring to the lawsuit. “The lynchpin of it seems to be that it’s inappropriate to move or create a new record date because that takes advantage of a cynical effort to put shares in the hands of arbitrageurs who will want to vote for the deal.”

Hamermesh pointed out that the judge who is likely to take this case, Leo Strine, often made the point in the takeover battle by industrial gases companies Air Products of rival Airgas that arbitrageurs are shareholders with the same rights.

Icahn, who views Michael Dell’s offer as too low, has amassed an 8.7 per cent stake in Dell and is leading a charge with Southeastern Asset Management against the buyout with an offer of his own. He has been campaigning to get Dell to set a date for the annual shareholder meeting so he can put up his own slate of directors for the company.

A spokesman for Dell declined to comment on the suit but said Dell board has always sought to act in accordance with its fiduciary duties.

The debate over the go-private transaction has dragged on for months, jeopardizing the future of the computer maker facing a decline in its core business of personal computers amid the growing popularity of tablets. Michael Dell has said a turnaround of Dell should be done away from the scrutiny of public investors.

A vote on the buyout, which has been postponed twice, is now scheduled for Friday and sources familiar with the matter have said another adjournment is unlikely.

The special committee has said it would put the original buyout offer of US$13.65 per share up for a shareholder vote.

Dell’s special board committee rejected new voting terms in a revised bid by Michael Dell and Silver Lake, which raised their offer price last week by 10 cents to US$13.75 per share on the condition the voting rules were changed.

Currently, shareholders who abstain are counted as voting against the deal, but the buyout group wanted those investors to be excluded from the tally.

Michael Dell’s unusual demand sparked outrage among major investors, but the buyout group had said about 27 per cent of the unaffiliated shares had not yet been voted and the presumption that these shares should be treated as if they had voted against the transaction was unfair.

The votes that have come in so far are split evenly between yes and no, sources have said, but there appears to be some signs that Michael Dell could get more votes.

Some of Dell’s largest investors, who have abstained from voting on the buyout, told the company’s board this week that they would back the deal at the buyout group’s latest offer price, three sources close to the matter have told Reuters.

Dell’s shares closed up 2.3 per cent at US$12.96 on the Nasdaq.

TIMELINE-Dell’s buyout a topsy-turvy affair:

The proposal by Michael Dell and Silver Lake to buy out and take private the world’s No. 3 PC maker, Dell will be put to the test on Friday, when shareholders gather for a third time in Texas to cast their votes.

Here are several of the major events that have transpired in the months-long battle that followed almost half a year of behind-the-scenes negotiations

Feb. 5 - Michael Dell and Silver Lake’s buyout offer is announced and a 45-day “go shop” period commences during which a special board committee solicits rival offers.

In all, Dell contacts 67 parties.


Feb 8 - Opposition from major shareholders grows on the perception the US$13.65 a share Michael Dell and Silver Lake offer undervalues the company. By the end of the week, some of the largest shareholders - Southeastern Asset Management, Harris Associates and Yacktman Asset Management and Pzena Asset Management - express opposition to the deal.


March 5 - Icahn informs Dell’s board he is a substantial shareholder, later revealing he owns US$1 billion in stock.


March 7 - Icahn demands that Dell pay US$9 a share in special dividends and combine its annual shareholders meeting with a special meeting convened to vote on the chief executive’s buyout offer. He threatens a proxy fight and “years of litigation” if Dell rebuffs him.


March 11 - Icahn gets a confidential look at Dell’s books.


March 22 - Blackstone and Icahn Enterprises send separate proposals to the special committee. Blackstone, which teamed up with Francisco partners and Insight Venture partners, offers over US$14.25 per share for the entire company.

Icahn offers about US$15 per share for 58 per cent, the first of several counter-offers designed to give shareholders an alternative to Michael Dell’s bid.

Under both proposals, Dell would remain a public company.


March 25 - Icahn starts initial talks with Blackstone, opening the door to an alliance with the private equity firm.

Around this time, sources with knowledge of the various discussions taking place say both opposing parties are talking with potential chief executive candidates to replace Michael Dell in the event their bids succeed.


March 29 - Dell warns it will be dangerous to take on a lot of debt and remain public, calling the Blackstone and Icahn offers fraught with risk.


April 5 - Blackstone Group makes plans to begin an in-depth analysis of the company. Dell’s special committee says it will give Icahn the same expense reimbursement available to the other two bidders if he does not threaten or embark on a proxy fight.


April 9 - Southeastern Asset Management issues an open letter arguing the company’s proxy statement fails to make a compelling case for accepting the Michael Dell-Silver Lake offer. It casts doubt on the integrity of the filing, saying: “The board’s sudden rush to sell is triggered by one thing: Mr. Dell’s desire to buy.”


April 16 - Dell strikes a deal with Icahn to limit his investment in the company. They agree he will not make purchases that boost his stake to over 10 per cent of Dell’s shares, or sign deals with other shareholders who, together with Icahn entities, would collectively own more than 15 per cent.


April 19 - Blackstone withdraws from Dell buyout process, citing a “rapidly eroding financial profile” and an unprecedented 14 per cent market decline in PC volume. Dell shares fall to a two-month low of US$13.40.


April 24 - Several of the Oakmark Funds sell Dell shares after Blackstone ends its pursuit of the computer maker.

April 29 - Venture capitalist James Breyer plans retirement from Dell board.

May 6 - Dell acquires cloud-management company Enstratius.


May 10 - Icahn and Southeastern Asset Management propose a deal that gives shareholders US$12 in cash for every share they own, as well as allow them to keep their stock.

May 13 - Icahn and Southeastern unveil candidates for a new board. The proposed alternate board includes Bernard Lanigan Jr., chief executive of Southeast Asset Advisors; Rahul Merchant, New York City’s chief information officer; Jonathan Christodoro, managing director of Icahn Capital; Daniel Ninivaggi, Icahn Enterprises President; and Harry Debes, operating partner with buyout firm Advent International Corp.


May 16 - Dell reports a 79 per cent slide in fiscal first quarter profit as personal computer sales continue to shrink.


June 5 - Dell’s special board committee says Icahn is almost US$4 billion short of the cash needed to fund his proposal for a US$12-per-share special dividend. Continues to recommend buyout offer from Michael Dell and Silver Lake.

June 18 - Icahn reveals he is now the company’s largest external shareholder, with Southeastern selling nearly US$1 billion of its stock to him at US$13.52 a share. He now proposes that Dell commence a tender offer for about 1.1 billion Dell shares at US$14 apiece.

Icahn also lays out his plan to finance his deal, including offering US$2 billion from himself and affiliates if needed.


June 21 - Michael Dell, in a regulatory filing, says he opposes any leveraged recapitalisation and calls for shareholders to support his proposal.


July 3 - Several large shareholders, who collectively own more than 5 per cent of the company, urge the board to draw up a contingency plan in case the buyout fails.


July 8 - Major proxy firms, including ISS, recommend that shareholders accept Michael Dell’s offer, boosting his position.


July 10 - Icahn urges shareholders to vote against the buyout and suggests they pursue in court their legal right to an appraisal of the fair value of the shares.


July 12 - Icahn and Southeastern Asset Management raise their bid for Dell by adding a warrant they say would value each share at between US$15.50 and US$18, up from US$14.

July 16 - Dell considers delaying its July 18 shareholder meeting because the vote might be too close to call, a person familiar with the situation tells Reuters.


July 24 - A second shareholder meeting on the buyout is adjourned. Michael Dell raises his bid by 10 cents to US$13.75 a share, but adds a controversial requirement that a majority of votes cast be enough to seal the deal. Currently, all votes need to be considered and votes that are not cast are counted as a “no.”


July 31 - The special committee rejects Michael Dell’s demand, but says it is willing to move forward the vote’s record date, which determines eligibility.


Aug 1 - Icahn files a lawsuit against the company and its board in Delaware. In particular, he asks the court to prevent any substantial voting requirement changes, including changing the record date, and reject Michael Dell’s requirement that absentee or non-votes be discounted.