A legal effort to prevent a change in voting rules in the upcoming Dell privatization effort has been denied by Judge Leo Strine of the Delaware Court of Chancery. Carl Icahn and his voting block
were trying to stop a September 12 shareholders' vote on Michael Dell and investment partners' offer, that has had its voting rules recently modified by a slight increase in the buyout offer
. The judge ruled that the vote is "probably within the time the court itself might set."
Icahn argues the new offer still seriously undervalues the company, and wants the court to stop the voting change. The change in voting turns votes that aren't cast into "abstain" votes, rather than the previous "vote against" Michael Dell and investment Silver Lake's offer to take the company private.
The current agreement set the special meeting of shareholders for September 12, with an annual shareholder meeting on October 17. Icahn's lawyers were posed the question by the court "whether our law will allow these directors to act as Platonic guardians, repeatedly refusing to take 'no' for an answer on the merger, stacking the cards in its favor and deliberately postponing the annual meeting." Icahn failed to prove that he has been irreparably financially damaged in order to win the expedited hearing, so the hearing will proceed as scheduled.
Icahn's offer trumps Dell and Silver Lake's $13.75 per share offer with a $0.13 per share special dividend at a value of up to $18 per share, with the company remaining public. Icahn also claims to be able to fire the existing board, and force Michael Dell out of the company he founded.
Following Icahn's original $14 per share offer
, Michael Dell called his offer sufficient, and refused to raise it, despite pressure to do so by advisory firms. The existing privatization deal put on the table by Michael Dell requires the majority of the shareholders (not including Dell's own shares) to vote in favor of the payout. Southeastern Asset Management, another vocal opponent of the Michael Dell buyout, would lose at least $825 million if the privatization deal completes as Michael Dell has proposed. Dell has dramatically cut its forecasts for 2013 operating profit by $700 million, to an estimated $3 billion -- casting further shadows over any deal.