The Last Hurdle For Dell’s LBO Cleared?

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Dell Inc. (NASDAQ:DELL) may get its leveraged buyout yet. A judge ruled against Carl Icahn on Friday in his lawsuit against the company. He was trying to get that suit fast-tracked, and the ruling against him is a major setback for the activist investor. Without that case being on the fast track, Icahn now has to hang all his hopes on the Sept. 12 shareholder meeting.

The Last Hurdle For Dell's LBO Cleared?

Dell buyout no longer threatened by Icahn

Steven M. Davidoff of DealBook explained why Friday’s ruling against Icahn essentially puts an end to the legal threat he poses. Icahn filed his suit in an attempt to keep Dell Inc. (NASDAQ:DELL)’s special committee from changing the voting rules and the record date for the buyout.

Changing the rules could make it easier for founder Michael Dell to win the vote because it enables only the votes which are cast to count in the total rather than making the votes which aren’t cast automatically count as no votes. Moving the record date back means more shareholders are allowed to vote, which again could work in Mr. Dell’s favor.

Icahn had also been trying to force Dell Inc. (NASDAQ:DELL) into holding the annual meeting at the same time as the merger vote. He could then theoretically attempt to swap out the company’s board for directors more sympathetic to his cause.

Surprises in Friday’s Dell ruling

According to Davidoff, the judge in Friday’s ruling defended Dell Inc. (NASDAQ:DELL)’s board, effectively saying that it did not breach its fiduciary duties in changing the voting rules for the buyout offer. He also said that the board was justified in changing the record date because almost 25 percent of Dell shares had been turned over after the previous date was set.

The judge also explained that they didn’t want to drag out this buyout issue any longer than necessary (imagine that!). However, he admitted that Icahn’s push for an annual meeting did have merit. Icahn argued that Delaware state laws require an annual meeting within 13 months of the previous meeting. If the 13 months go by, the court could require that the annual meeting be held.

A push for Dell’s annual meeting

As a result, the judge ordered that the part of the suit connected with Icahn’s meeting claim should be expedited. Currently the company’s annual meeting is set for Oct. 17, which is within the time frame required by the law. He basically said that Dell Inc. (NASDAQ:DELL) should have the meeting on that date but that it doesn’t need to be held sooner.

Then he set a briefing schedule that wouldn’t press for a hearing until late this month or early next year. In other words, he let those associated with Dell Inc. (NASDAQ:DELL) decide on the date for the annual meeting as long as it’s within the time frame set by his ruling and Delaware state law. As such, it seems pretty likely that Icahn is just out of luck—unless Mr. Dell does not get enough votes to approve his go-private leveraged buyout offer.

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