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The Shareholder Forumtm

special project of the public interest program for

Fair Investor Access

Supporting investor interests in

appraisal rights for intrinsic value realization

in the buyout of

Dell Inc.

For related issues, see programs for

Appraisal Rights Investments

Fair Investor Access

Project Status

Forum participants were encouraged to consider appraisal rights in June 2013 as a means of realizing the same long term intrinsic value that the company's founder and private equity partner sought in an opportunistic market-priced buyout, and legal research of court valuation standards was commissioned to support the required investment decisions.

The buyout transaction became effective on October 28, 2013 at an offer price of $13.75 per share, and the appraisal case was initiated on October 29, 2013, by the Forum's representative petitioner, Cavan Partners, LP. The Delaware Chancery Court issued its decision on May 31, 2016, establishing the intrinsic fair value of Dell shares at the effective date as $17.62 per share, approximately 28.1% more than the offer price, with definitive legal explanations confirming the foundations of Shareholder Forum support for appraisal rights.

Each of the Dell shareholders who chose to rely upon the Forum's support satisfied the procedural requirements to be eligible for payment of the $17.62 fair value, plus interest on that amount compounding since the effective date at 5% above the Federal Reserve discount rate.


 

 

For a subsequent progress report, see

 

For a printable copy of this report with a copy of the letter as transmitted, click here.

Forum Report: Fair Investor Access (Dell Valuation Project)

 

Do Dell Directors Want Responsibility for Investor Decisions?

As reported last week, Dell’s legal officer has continued to argue that the company is not obligated to respond to stockholder information demands because investors should rely upon the company’s board to disclose what is relevant to investor decisions.[1] I have therefore offered to withdraw the demand for records if the company’s directors are actually willing to accept the fiduciary duty suggested by this legal theory.

The text of my letter is copied below.

Conventionally, directors have been relied upon to assure compliance with reporting requirements and fair disclosure of material information, and it is assumed that nobody questions the practical wisdom of that well established duty. What Dell now argues is that the board should also be relied upon to determine what every investor needs to know, and that investors should therefore give up their right to ask questions and get answers.

It is unlikely that this suggested shift in responsibilities would be welcomed by most corporate directors or by most investors, especially considering the impracticality of a board’s determining the different objectives of each company stockholder.[2] Forum participants with a wide range of perspectives have told me that a company’s board “can’t be expected to read my mind;” that no corporate director wants to be burdened with trying to do so; and that beyond this “implicit limitation of a board’s ability to know” the interests of each investor, our marketplace depends on the “investor right to seek clarification, and to verify what is reported.”

The first test of this new theory is with Dell’s board. Its members must now make a simple choice: either accept responsibility for investor decisions or respect investor rights to make their own decisions.

GL – April 3, 2013

Gary Lutin

Chairman, The Shareholder Forum

575 Madison Avenue, New York, New York 10022

Tel: 212-605-0335

Email: gl@shareholderforum.com

 

 


 

For a printable copy of this letter as transmitted, click here.

  [letterhead of The Shareholder Forum]

 

April 2, 2013

By email and postal service

Mr. Michael S. Dell

Chairman, Board of Directors

            and

Mr. Alex J. Mandl

Presiding Director and Chairman of the Special Committee, Board of Directors

Dell Inc.

One Dell Way

Round Rock, Texas 78682

 

Dear Messrs. Dell and Mandl:

 

Dell’s Vice President – Corporate, Securities & Finance Counsel, Janet B. Wright, has argued in recent letters[1] that the company is not obligated to respond to information demands I have been authorized to make on behalf of a stockholder.[2] Although most of Ms. Wright’s points can be easily resolved by lawyers, her substantive argument presents a question that can be answered only by Dell’s board of directors.

 

According to Dell’s legal theory, the company is not obligated to respond to the demand for information because a stockholder should rely upon Dell’s board to determine what information is needed for that stockholder’s consideration of the board’s proposed transaction. This view would necessarily make the board responsible for determining the particular investor objectives of each and every company stockholder, and of each stockholder’s associated decision-making criteria and information requirements. That is a very significant expansion of board responsibility beyond the conventional limits of determining the interests of the corporation. I must therefore ask whether the members of Dell’s board will in fact accept this new fiduciary duty.

 

If you inform me that Dell’s directors are assuming the fiduciary duty to determine each stockholder’s interest, I will respect their responsibility and withdraw my demand for records. Otherwise, I will welcome discussions of confidentiality provisions and procedural arrangements that will allow a Dell stockholder to get answers to its own questions and assume independent responsibility for its own interest.

 

Sincerely yours,

 /s

Gary Lutin,

            as Delegate

 

cc:        Ms. Janet B. Wright


[1] See Ms. Wright’s letters of March 12 and March 15, 2013, which were published by Dell in SEC Schedule 14A reports of proxy solicitation material on March 12 and March 15, and her letter of March 28, 2013.

[2] See my March 21, 2013 letter presenting “Revised demands for records.”

 

 

This project was conducted as part of the Shareholder Forum's public interest  program for "Fair Investor Access," which is open free of charge to anyone concerned with investor interests in the development of marketplace standards for expanded access to information for securities valuation and shareholder voting decisions. As stated in the posted Conditions of Participation, the Forum's purpose is to provide decision-makers with access to information and a free exchange of views on the issues presented in the program's Forum Summary. Each participant is expected to make independent use of information obtained through the Forum, subject to the privacy rights of other participants.  It is a Forum rule that participants will not be identified or quoted without their explicit permission.

The management of Dell Inc. declined the Forum's invitation to provide leadership of this project, but was encouraged to collaborate in its progress to assure cost-efficient, timely delivery of information relevant to investor decisions. As the project evolved, those information requirements were ultimately satisfied in the context of an appraisal proceeding.

Inquiries about this project and requests to be included in its distribution list may be addressed to dell@shareholderforum.com.

The information provided to Forum participants is intended for their private reference, and permission has not been granted for the republishing of any copyrighted material. The material presented on this web site is the responsibility of Gary Lutin, as chairman of the Shareholder Forum.

Shareholder Forum™ is a trademark owned by The Shareholder Forum, Inc., for the programs conducted since 1999 to support investor access to decision-making information. It should be noted that we have no responsibility for the services that Broadridge Financial Solutions, Inc., introduced for review in the Forum's 2010 "E-Meetings" program and has since been offering with the “Shareholder Forum” name, and we have asked Broadridge to use a different name that does not suggest our support or endorsement.