Judge Leo Strine Jr. of Delaware Chancery Court today was to have heard arguments from Icahn’s attorneys for speeding up the suit, designed to head off a planned Sept. 12 shareholder vote on the $24.9 billion takeover. The hearing was postponed until 12:30 p.m. on Aug. 16, Kenneth Lagowski, a court administrator in Wilmington, said in an interview.
Billionaire Michael Dell, 48, and Silver Lake Management LLC offered $13.65 a share for the Round Rock, Texas-based PC maker. Icahn, 77, opposed the deal and sued the board Aug. 1 saying it failed to get the top price.
In a sweetened bid, the Dell founder agreed to pay $13.75 a share and a special dividend of 13 cents a share, on top of a regular 8 cents a share dividend. The total investors would get in the transaction rose to $13.96 a share.
Dell fell 2 cents to $13.72 cents at 11:09 a.m. New York time in Nasdaq Stock Market trading.
Stockholders “will suffer irreparable harm” without a quick hearing of the case, because the buyout “is nearly certain to be approved through an unfair vote,” while investors will be “powerless to nominate new directors” beforehand, Icahn contended in a brief.
He called Dell directors’ actions part of “their self-granted imperial status.”
Icahn, chairman of New York-based Icahn Enterprises Holdings LP (IEP) also challenged the board’s revised record date of Aug. 13, tomorrow, allowing newer investors to vote. The company has set its annual meeting for Oct. 17.
“The lame-duck board of Dell has been in office for over a year” and refuses to hold a meeting to let investors choose new directors while trying “to ram through a going-private transaction,” Icahn contended in court papers.
David Frink, a company spokesman, said in a statement that Dell’s board has “sought to maximize value for, and acted in accordance with its fiduciary duties to, Dell stockholders and will continue to do so.”
Icahn is asking the judge to bar Dell, the third-largest PC maker, from setting a new shareholder record date; to stop Michael Dell and his affiliates from voting any shares acquired since Feb. 5, the day the deal was announced; to stop the company from changing voting requirements; and to find that the board breached its fiduciary duties.
The investor also asked the judge to prohibit Dell directors from holding the special meeting “until it can be held at the same time” as the annual meeting.
Icahn “appears” to be asking the court to order Dell to hold the special meeting vote simultaneously with the annual meeting, the company said in court papers. Reverting to the old record date would exclude newer potential voters and nullify the latest negotiated buyout agreement, the company said.
The plaintiffs are using the court as “another theater in their public relations battle,” Dell said.
In an e-mail last week to Dell’s 110,000 employees, Michael Dell said he is committed to completing the buyout and using research and development acquisitions to make the company more competitive.
“Dell needs to transform, and we need to do it quickly,” he wrote. “The technology landscape has fundamentally changed since the company was founded, and success requires this transformation.”
Shareholders have sued Dell officials in federal court in Houston and at least 20 other Delaware suits seeking more money are pending.
The case is High River v. Dell Inc. (DELL), CA8762, Delaware Chancery Court (Wilmington).
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