The letter follows:
April 5, 2013
Mr. Carl C.
Icahn
Icahn Enterprises, L.P.
767 Fifth Avenue, 47th Floor
New York, NY 10153
Expense Reimbursement
Dear Mr. Icahn:
This is in response to your request to the Special Committee of the Board of Directors (the “Special Committee”) of Dell Inc. (“Dell” or the “Company”) that Dell reimburse you for your expenses in pursuing a potential transaction involving the Company.
The Committee has carefully established an open and thorough process intended to result in a sale of Dell on the best available price and terms. We have welcomed your participation in that process, which has resulted in your submission of a proposal that the Committee has determined could reasonably be expected to result in a “Superior Proposal” within the meaning of Dell’s merger agreement with affiliates of Silver Lake Partners and Michael Dell. We encourage your continuing participation in our process, and hope that you will in fact submit a proposal we can determine to be superior to the currently pending merger.
At the same time, however, you have threatened the Company’s directors with “years of litigation” and a proxy fight if they do not conduct the transaction process in the manner you prefer. You have also sought a special waiver of Delaware’s business combination statute not only to facilitate your acquisition proposal within our process, but also your ability to contest that process and to pursue your goals outside of it.
We are willing to provide you with the same expense reimbursement that has been made available to the other two bidders if you will commit contractually to work within our process, but we are not prepared to do so as long as you, unlike them, reserve the right (and continue the threat) to subvert it with a proxy fight, litigation and other tactics that would prolong the instability and uncertainty facing the company. Our goal is to create a truly level playing field in which the best transaction would prevail. Absent a commitment on your part to play on such a field, we must respectfully decline your request for expense reimbursement.
Regardless of your decision regarding the expense reimbursement, litigation and a proxy fight, we remain willing, on the terms we have proposed, to grant the Delaware waiver you have requested, in exchange for the protections for Dell and its stockholders we have outlined.
Very truly
yours,
The Special Committee
of the Board of Directors
of Dell Inc.
Forward-looking Statements
Any statements in these materials about prospective performance and
plans for the Company, the expected timing of the completion of the
proposed merger and the ability to complete the proposed merger, and
other statements containing the words “estimates,” “believes,”
“anticipates,” “plans,” “expects,” “will,” and similar expressions,
other than historical facts, constitute forward-looking statements
within the meaning of the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Factors or risks that could
cause our actual results to differ materially from the results we
anticipate include, but are not limited to: (1) the occurrence of any
event, change or other circumstances that could give rise to the
termination of the merger agreement; (2) the inability to complete the
proposed merger due to the failure to obtain stockholder approval for
the proposed merger or the failure to satisfy other conditions to
completion of the proposed merger, including that a governmental
entity may prohibit, delay or refuse to grant approval for the
consummation of the transaction; (3) the failure to obtain the
necessary financing arrangements set forth in the debt and equity
commitment letters delivered pursuant to the merger agreement; (4)
risks related to disruption of management’s attention from the
Company’s ongoing business operations due to the transaction; and (5)
the effect of the announcement of the proposed merger on the Company’s
relationships with its customers, operating results and business
generally.
Actual results may differ materially from those indicated by such forward-looking statements. In addition, the forward-looking statements included in the materials represent our views as of the date hereof. We anticipate that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing our views as of any date subsequent to the date hereof. Additional factors that may cause results to differ materially from those described in the forward-looking statements are set forth in the Company’s Annual Report on Form 10–K for the fiscal year ended February 1, 2013, which was filed with the SEC on March 12, 2013, under the heading “Item 1A—Risk Factors,” and in subsequent reports on Forms 10–Q and 8–K filed with the SEC by the Company.
Additional
Information and Where to Find It
In connection with the proposed merger transaction, the Company will
file with the SEC and furnish to the Company’s stockholders a proxy
statement and other relevant documents. Stockholders are urged to read
the proxy statement when it becomes available and any other documents
to be filed with the SEC in connection with the proposed merger or
incorporated by reference in the proxy statement because they will
contain important information about the proposed merger.
Investors will be able to obtain a free copy of documents filed with the SEC at the SEC’s website at http://www.sec.gov. In addition, investors may obtain a free copy of the Company’s filings with the SEC from the Company’s website at http://content.dell.com/us/en/corp/investor-financial-reporting.aspx or by directing a request to: Dell Inc. One Dell Way, Round Rock, Texas 78682, Attn: Investor Relations, (512) 728-7800, investor_relations@dell.com.
The Company and its directors, executive officers and certain other members of management and employees of the Company may be deemed “participants” in the solicitation of proxies from stockholders of the Company in favor of the proposed merger. Information regarding the persons who may, under the rules of the SEC, be considered participants in the solicitation of the stockholders of the Company in connection with the proposed merger, and their direct or indirect interests, by security holdings or otherwise, which may be different from those of the Company’s stockholders generally, will be set forth in the proxy statement and the other relevant documents to be filed with the SEC. You can find information about the Company’s executive officers and directors in its Annual Report on Form 10-K for the fiscal year ended February 1, 2013 and in its definitive proxy statement filed with the SEC on Schedule 14A on May 24, 2012.
About Dell
Dell Inc. (NASDAQ: DELL) listens to customers and delivers worldwide
innovative technology, business solutions and services they trust and
value. For more information, visit
www.Dell.com. You may follow the Dell Investor Relations Twitter
account at:
http://twitter.com/Dellshares. To communicate directly with Dell,
go to
www.Dell.com/Dellshares.