Forum Home Page see Broadridge note below]

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.


 

 

Note: Neither Mr. Dell nor any representative of Dell Inc. responded to the letter reported below prior to the August 8, 2014 deadline for the questionable document demand, so that legal counsel for the petitioner was required to file a 17 page objection with the court (here).

 

For a printable copy of this report with its referenced letter and filing, click here.

Forum Report: Dell Appraisal Rights

 

Dell Asked to Respect Rights of Former Co-Investors to Long Term Value

In a letter sent yesterday to Michael Dell (see below), the increasingly vocal supporter of capitalist and charitable interests was asked to consider instructing Dell Inc.’s attorneys to withdraw a court filing that was apparently designed to discourage his company’s former shareholders from exercising their rights to appraisal.

The filing demanded copies of extensive records from each of the investors that have volunteered to act as “petitioners” to guide the appraisal proceedings, requiring copies of all documents since January 2011 relating to their consideration of Dell. This kind of record production can of course be especially burdensome for fund managers that may have had several researchers, analysts, portfolio managers, proxy voting officials and even board members involved in reviews of a company.

Although demands for a representative party’s records of investment evaluation are common in securities class actions, in which the claims are based on a plaintiff’s assertion that it was misled in its decisions, there is no reason to consider the past or present views of a petitioner in an appraisal proceeding. The appraisal is to be conducted by the court, which may consider expert views. Unless a petitioner plans to take the unusual action of presenting itself as an expert in testimony, its views would have no relevance in the proceeding.

 The legal process of resolving this records demand, whether argued or conceded, would be costly to both Dell and the investors – petitioners as well as the more than hundred other former shareholders who may share in the allocation of expenses. While Dell’s lawyers may have considered this cost justified to obstruct the appraisal proceeding, none of the parties can be expected to benefit from continuing this legal diversion.

Please let me know if you have any questions. I will of course report Mr. Dell’s response to the letter.

GL – July 15, 2014

Gary Lutin

Chairman, The Shareholder Forum

575 Madison Avenue, New York, New York 10022

Tel: 212-605-0335

Email: gl@shareholderforum.com

 


[For the original letter with its referenced copy of the court filing, click here.]

 

[letterhead of The Shareholder Forum]

 

July 14, 2014

By email and postal service

 

Mr. Michael S. Dell

Dell Inc.

One Dell Way

Round Rock, Texas 78682

 

Dear Mr. Dell:

 

In the accompanying copy of a July 9, 2014 court filing, you will see that Dell Inc.’s attorneys are making extensive demands for records from the investors that have volunteered to serve as petitioners for the appraisal proceeding in which more than a hundred of your former shareholders are, like you, pursuing their rights to the long term value of your company. I believe you will want to consider withdrawing these document demands, since any response – whether the attorneys for petitioners decide to oppose or appease – will impose significant costs on your company as well as on all the investors required to bear expenses.

 

As a reasonably informed non-lawyer, my view of the records being demanded is that they could have no possible relevance to either an investor’s rights to appraisal or the court’s conduct of the appraisal. Especially in the context of an earlier round of legal demands requiring investor responses to dubious challenges of eligibility, the current demands seem to have no purpose other than to create burdens that discourage investors from pursuing their rights.

 

You may recall that during last year’s attention to your buyout I consistently encouraged Forum participants to respect the interests of all investors, including you, in your company’s long term enterprise value. When we initiated the project to support minority shareholders’ use of appraisal rights to realize that long term value, I stated “Our objective is to support the interests of investors who want the same thing that Michael Dell and Silver Lake are seeking in their proposed acquisition: the long term value of the Dell enterprise, which everyone apparently agrees is greater than the price set by current market bids.”* The viability of our capital markets depends on this respect of both buyers and minority shareholders for the interests of the other.

 

I must now ask you to consider your responsibility to your former Dell shareholders and to the marketplace, and to instruct your representatives to do what is right rather than what is legally arguable.

 

Sincerely yours,

/s

Gary Lutin

 

 

 

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.