Getting the Information Before Instead of After Investor Decisions
In the absence of any response to my March 18 letter asking Dell’s
legal counsel for any additional views of how the company believes a
demand for records should be stated to satisfy the requirements of
applicable Delaware law,
I sent the company a revised demand that accommodates all of the views
that had been presented in two letters as reasons why Dell should not
provide the information needed by investors.
March 21, 2013 letter from Gary Lutin as Delegate to Michael S. Dell
of Dell Inc., re: Revised demand for records (4 pages, 197 KB, in
format), bookmarked for its sections addressing
Authority of Delegate to act on behalf of Shareholder
Demand for records
Purposes of demand
The revised demand letter does not waive any rights to enforce the
original demands, of course, but it is assumed that writing a new
letter that eliminates Dell’s grounds for arguing will get the desired
result much faster than engaging in the argument.
Routinely provided information
Although the letter is considerably longer than the initial demand,
the amount of information demanded has been cut back to easily
specified records that are routinely provided for
investor review in court proceedings involving appraisal rights.
Delaware law provides Dell shareholders with appraisal rights if they
elect “dissenter” status, and experts representing investors would
then be expected to review the same information that is specified in
today’s revised demand to prepare professional valuation reports or
views of what others have reported. Since it is certain in a
transaction with Dell’s large number of shareholders that at least
some will exercise dissenter rights to appraisal, it is also certain
that Dell will eventually be required to allow investor access to all
of the information in the revised demand.
The revised demand will therefore require only that Dell provide
access to the specified information now, rather than delay access
until after the vote.
GL – March 21, 2013
Chairman, The Shareholder Forum
575 Madison Avenue, New York, New York 10022