Dell Signs Agreement To Cap Icahn's Share Ownership

itwbennett writes "As previously reported on Slashdot, activist investor Carl Icahn made a proposal to buy Dell for $15 per share. Now, as part of the review process of potential offers to take Dell private, the company's board of directors has approved an agreement with Icahn that would cap the amount of shares owned by the activist investor. Under the agreement, Icahn and affiliated entities 'have agreed not to make purchases that would cause them to own more than 10 percent of Dell's shares,' Dell said in a statement. Also as part of the agreement, Icahn has agreed not to enter into agreements with other shareholders to jointly own more than 15 percent of Dell's shares." From the press release: "The Special Committee believes that granting the limited waiver to Mr. Icahn while capping his share ownership will maximize the chances of eliciting a superior proposal from Mr. Icahn while at the same time protecting shareholders against potential accumulation of an unduly influential voting interest." Looks like Michael Dell has some serious competition for Dell.

Comments

I don't know *anything* about this

[nomel]

But how is this legal? Seems to me a truly public company wouldn't be able to limit the shares bought by any entity. I always assume public meant anyone could buy into the company...the more money you put in, the more of the company you own.

Re:I don't know *anything* about this

[Chuck Chunder]

There is a clear difference between a company deciding how it sells shares it currently owns in an IPO and restricting someone from buying shares from other parties.

The article isn't entirely clear though, at first glance it makes it sound like Icahn is being frozen out from buying the company, however I think his offer as far as that goes is still on the table. This agreement seems to be more about preventing a hostile takeover, ie Ichan gaining enough shares/influence in the meantime to control the process and have his offer approved with less oversight.

As it's an agreement Ichan is presumably OK with it though if you were a Dell shareholder you might be annoyed that the company has taken someone who might buy your shares out of the market for a while.

Re:I don't know *anything* about this

[alexander_686]

It's not - Dell can not stop Ichan from buying more shares - so they are giving him something different.

Ichan has publicly stated that he has no interested in buying out Dell - just that he thinks it worth more then M. Dell's offer of $14. People are speculating that Ichan wants 30% of the company, let M. Dell keep his 15%, at let the rest remain in public hands.,

So now we get to the tricky part. Companies must treat all shareholders equally. As part of that deal, minority shareholders can't collude behind management's back - they have to do things publicly. (These rules go back to the 1950s). So, from the article "Dell has also granted the Icahn entities a waiver that "facilitates" his ability to engage with other Dell stockholders."

So consider this a pause as Ichan can muster his forces.

Re:I don't know *anything* about this

[larry bagina]

They can't limit it (other than invoking a poison pill provision). But they can make an agreement with him. That's what a contract is - you agree to do (or not do) something in exchange for someone else doing (or not doing) something.

Re:I don't know *anything* about this

[rahvin112]

Dell has a poison pill provision. They can't stop Ichan from buying shares, but they can create so many more shares to dilute his ownership that every shareholder, including Ichan, could lose a ton of money in the process.

Re:I don't know *anything* about this

[sourcerror]

"minority shareholders can't collude behind management's back - they have to do things publicly. (These rules go back to the 1950s)"

What law forbids minority shareholders colluding?

Re:I don't know *anything* about this

[alexander_686]

I don't have that information at my finger tips, but research shareholder communications proxy solicitation rules. I think it is a combo of Act 34 and various SEC regulations. So laws may be too strong of a word. Then throw in the extra disclosure that occurs when somebody owns more than 5% of a company.

Analysis?

[Anonymous Coward]

We know Icahn, he's not going to give up something for nothing. But what does he get from this waiver?

My hunch is that Icahn doesn't think enough of Dell's prospects, with or without Michael Dell as CEO, to buy the company; but he does want his greenmail.

Re:Analysis?

[symbolset]

"We know Icahn, he's not going to give up something for nothing. But what does he get from this waiver?"

I'm just guessing here but... money?

Qui Bono?

[Compaqt]

The usual reason for a hostile takeover is that you think you can run the company better than the current owners/board or the assets would be more valuable in your hands.

Why would Icahn both pay more dollar$ and also not have control of the company? That would be the worst of both worlds.

Re:Qui Bono?

[phantomfive]

He doesn't think he can run the company better than Dell, exactly, except from the perspective of 'break it apart and sell off the pieces.' Remember Dell told Apple to "close the company and give the money back to the shareholders?" That's basically what Michael Dell trying to do, except he was trying to keep the biggest chunk for himself.

Dell the company has something like $40 billion in assets, but the cost of buying all the stock (market cap) is $24billion. Dell planned on taking the company private and then disbursing a lot of that cash to himself and his friends.

Carl Icahn saw that and said, "the share price you are offering is too cheap. I'm going to pay more than your $24billion offer and then keep the money for myself."

Dell is trying to say, "calm down, let's find a point midway that makes us all happy before this bidding war gets out of control." Who knows if that will work, but the likely endgame in all scenarios is that Dell the company will be destroyed.

Re:Qui Bono?

[forkazoo]

Dell is trying to say, "calm down, let's find a point midway that makes us all happy before this bidding war gets out of control." Who knows if that will work, but the likely endgame in all scenarios is that Dell the company will be destroyed.

Which is kind of a shame. Dell actually has some nice products. (Lots of terrible ones as well...) They are almost at the point where I would seriously consider a very large scale storage solution from Dell. (Think many hundreds of TB SAN) They have been acquiring some interesting storage companies and doing good integration work. Given that Isilon and BlueArc are currently both trying to kick their customers in the nuts, there is a good opportunity for Dell in the Datacenter.

Re:Qui Bono?

[phantomfive]

Agreed. Especially since they supported Linux probably the most of any manufacturer.

Re:Qui Bono?

[MachineShedFred]

What's even more interesting is that while all of this is going on, Dell has been on a shopping spree of buying up companies that do business with large enterprise.

My company uses a data-at-rest encryption product that is now owned by Dell, and we're looking at an identity management suite from a company that was just bought by Dell. They also bought Wyse, who is either #1 or #2 in Thin Clients depending on what day of the week it is (HP would be the other #1 or #2).

If a private equity deal was done in order to break up Dell and sell off chunks of the business, then these companies are royally screwed.

Re:Qui Bono?

[gottabeme]

More than HP?

Re:Qui Bono?

[phantomfive]

I don't know, does HP sell consumer laptops with Linux? I should clarify that I meant, "their consumer boxes are more likely to have driver support than any other manufacturer"

Board malfeasance

[__aaltlg1547]

If I own Dell stock and I claim that limiting Icahn's ownership undermines my share value (which it probably does), I could sue the company.

Re:Board malfeasance

[ThosLives]

It's a shame that people tend to view the purpose of (public) companies is to make money for their owners, rather than provide a product or service which can only be provided by pooling the resources of a group of people acting corporately.

Re:Board malfeasance

[khallow]

What's a shame about it? They're not doing it for free.

Re:Board malfeasance

[alexander_686]

No - that not true. If it were M. Dell would have approved his own takeover.

The board has to independently review all offers and pick the best one. That is why the board 1. formed a special sub-committee that M. Dell was not on and 2. got a "shop around" option and 3. was given enough cash to hire some Wall Street investment banker types.. This is standard in terms of handling conflicts of interest like this.

Re:Board malfeasance

[alexander_686]

And it is a shame that people don't understand what profit is.

Are you doing a good job, are you adding economic value, producing something society wants? If you do, then you generate profits. If not – well – not so much. Don't think corporations are adding value? They you are using a measuring stick that society does not use. Don't like it? Get society to change the measuring stick they use. (And this is not a glib comment.)

Re:Board malfeasance

[Anonymous Coward]

Are you doing a good job, are you adding economic value, producing something society wants? If you do, then you generate profits. If not – well – not so much. Don't think corporations are adding value? They you are using a measuring stick that society does not use. Don't like it? Get society to change the measuring stick they use. (And this is not a glib comment.)

How incredibly naive. History shows that huge profits can be made doing predatory and destructive things, while many firms go broke providing valuable things.

Re:Board malfeasance

[ThosLives]

Who is the "they" here? The employees of the company? Shareholders?

In either case I don't think it's relevant; my comment was more an observation of the fact that some people believe the only purpose of companies is to make money for the owners.

I might, though, go so far as to argue that most shareholders "do it" for almost nothing: they risk only financial loss, but have no responsibility for the activities of their company. Have shareholders ever been held responsible for the actions of the company they "own"?

Re:Board malfeasance

[thoth]

Dealing with crap like this is one of the reasons Dell wants to take his company private. He'll have the freedom/ability to act as he sees fit without dealing with shareholder lawsuits at every turn.

Re:Board malfeasance

[khallow]

my comment was more an observation of the fact that some people believe the only purpose of companies is to make money for the owners.

Who in this thread is one of those people? I didn't see anyone. I still don't get where the "shame" is supposed to be going.

Re:Board malfeasance

[alexander_686]

I would disagree. I would bet that most of the examples you point out were due to fraud, greed, or manias. These are human conditions that exist without the profit motive. Or, another way to put it, capitalism (either in it's left wing “socialism light” or your hard right liberation form) is like democracy – a horrible system whose only saving grace is that it is better then any other system.

Re:Board malfeasance

[b4dc0d3r]

If you own Dell stock and you claim that limiting ownership undermines your share value, then GO SUE THE FUCKING COMPANY.

Either you do, or you don't, and either you can or you can't. Plenty of companies have made millions, or billions, before someone actually sued them and got a court order for them to stop their shenanigans.

No one here gives a shit until someone who actually has standing to sue does so, with a valid, comprehensible, lucid argument that stands up in a legal argument. If you don't, or you can't, no one here cares.

Re:Board malfeasance

[rahvin112]

Your Naive if you think there is a soul on the board of directors that wasn't hand picked by Dell. Most boards of public companies these days are friends of the CEO (often CEO's of other companies) picked and appointed by the CEO. It one of the primary reason the entire system is gamed against the small investor (the other being institutional investors taking no active role in management or voting through the often significant stock positions they hold).

Re:Board malfeasance

[schnell]

I might, though, go so far as to argue that most shareholders "do it" for almost nothing: they risk only financial loss, but have no responsibility for the activities of their company. Have shareholders ever been held responsible for the actions of the company they "own"?

I think you - and probably most Slashdotters - misunderstand the whole purpose of corporations as compared to partnerships or proprietorships. This is a gross oversimplification, and I'm only familiar with US company structures, but here's the real short version:

Companies can take many forms, but the most common are sole proprietorships, partnerships (regular or limited liability, etc.) or corporations. In a sole proprietorship or partnership, the shareholders are legally responsible for the actions of the company (to varying degrees). If your sole proprietorship/partnership violates the law or racks up huge debts, guess who they're coming after personally? You. That's why these company structures are only suitable when there is just a small group of owners who are all involved in the running of the business and can thus accept the risk of being responsible for it.

If you want lots and lots (thousands or millions) of people to buy stock in your company (thereby funding it through their purchase in your IPO), that's not going to happen if they're all individually responsible for the actions of the corporation. For example, it makes no sense for a little old lady whose retirement fund holds shares in BP to be held responsible for the failure of their GoM drilling rigs. So you create a "corporation" which has the legal fiction of personhood that is separate from the shareholders. So if the corporation violates laws or goes down in flames owing big piles of cash, you can go after the executives and/or give the "death sentence" to the corporation (e.g. the Bell System antitrust breakup, Chapter 7 bankruptcy, etc.) but you can't hold the shareholders responsible. Note though that this isn't 100% true - courts can "pierce the corporate veil" if you have a corporation that is being run like an individual's fiefdom with no oversight, and hold the individuals liable as well like it was a sole proprietorship or partnership.

The above explanation is way, WAY oversimplified but I can't think of any way to explain it in a detailed fashion with a car analogy.

Re:Board malfeasance

[Ceriel Nosforit]

For example, it makes no sense for a little old lady whose retirement fund holds shares in BP to be held responsible for the failure of their GoM drilling rigs.

Undoing my moderation for this;

Doesn't it? Is it really fair for her to neglect her responsibility as an elder in the community for the sake of convenience and profit? If so, the floating ice sheet method of retirement appears equally good.
If she is too infirm to make decisions to this end, someone else should be managing her wealth. If not, I profess that she should still be considered legally responsible for her actions which are buying, voting with dollars, exercising power. - I poo-poo your 'little old lady' rhetoric.

Re:Board malfeasance

[symbolset]

It takes a special kind of genius to find a way forward for a publicly held company that requires improving the human condition to maximize profit.

Fortunately both Sergey Brin and Larry Page are that sort of genius.

Re:Board malfeasance

[ShanghaiBill]

Who in this thread is one of those people? I didn't see anyone. I still don't get where the "shame" is supposed to be going.

The largest shareholders are pension fund companies and mutual fund companies. So if you have a pension plan (401k, IRA, etc.), or if you have shares in a mutual fund, then you probably own some Dell shares. So most people in this thread are "one of those people" whether they realize it or not.

Re:Board malfeasance

[symbolset]

Pah! Google seems to think their goal is "To Serve Man" and they're the second biggest company in technology.

Re:Board malfeasance

[symbolset]

This alone is reason enough to avoid both Dell securities and their products.

Re:Board malfeasance

[alexander_686]

Your criticisms are fair, but I would like to make a point.

Some boards are strong and independent, others are weak and are captured by management. And there is always questions about balancing management (long term vision, fat contracts) verses the small investor (many contradiction voices, often short term, and the real owners of the companies.)

Historically speaking, boards tend to do poorly when it comes to manager pay / performance, long term planning, and selecting a new CEO. However, they tend to do much better job in kicking out CEOs and handling being bought out.

Re:Board malfeasance

[Bacon Bits]

I would disagree. I would bet that most of the examples you point out were due to fraud, greed, or manias. These are human conditions that exist without the profit motive. Or, another way to put it, capitalism (either in it's left wing “socialism light” or your hard right liberation form) is like democracy – a horrible system whose only saving grace is that it is better then any other system.

Doesn't that suggest the system should "be refreshed from time to time with the blood of patriots and tyrants"? I, for one, would like to see what color blood comes out of an investment banker's heart.

Re:Board malfeasance

[mattack2]

In either case I don't think it's relevant; my comment was more an observation of the fact that some people believe the only purpose of companies is to make money for the owners.

That's exactly what the goals of a for-profit company are.

If you're not trying to make money, be a non-profit, or do something as a hobby.

Re:Board malfeasance

[mattack2]

The above explanation is way, WAY oversimplified but I can't think of any way to explain it in a detailed fashion with a car analogy.

Executive:corporation::car:airbags/seat belt

The air bags & seat belt will help protect you if you get in an accident, but you can still be injured/killed in an accident if you act too irresponsibly.

Re:Board malfeasance

[ThosLives]

I still think there's a difference between the following philosophies:

• "I have a company whose purpose is to provide good or service X, and want to make enough money to be able to do X well and for a long time."
• "I have a company and want to make money, so I'll provide good or service X so I can make good money for a long time."

Re:He wants the debt

[Billly Gates]

His proposal is that the $20 billion needed to borrow to buyback the shareholders all go to Mr. Icahn in a one lump sum payout (ok all the shareholders get it ... but added for dramatization) while Dell pays it back with interest over 20 years and possibly dying. Icahn sells it to someone else who gets screwed while he gets rich in the short term price bubble. Or Icahn keeps it and forces dell to sell all of its assets to raise the shareprice and then sells it when it has to repurchase all its assets again.

Icahn did that to Timewarner. The company had to sell everything and then repurcahse it again after the stock price surged and the others were left holding the bag.

This man is a menace!

Re:Can anyone else get more than 10%?

[alexander_686]

I think Mr. Dell has 15%.And my I ask why you are against Icahn getting more then 15%?

To the OP, Greenmail is now illegal, so it can't be that.

re

[ralphlaurena]

wait for other good answer

Re:He wants the debt

[Bacon Bits]

Oh, so he's a grifter that hides behind the title "investor". We love those in America! He should go far.