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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
October 25, 2018
Carl C. Icahn
Chairman
Icahn Enterprises L.P.
767 Fifth Avenue, 47th Floor
New York, New York 10153
Re: Dell Technologies Inc.
PREC14A preliminary proxy statement filing made on Schedule
14A
Filed on October 16, 2018 by Barberry et al.
File No. 001-37867
Dell Technologies Inc.
DFAN14A definitive soliciting material under Rule 14a-12
Filed on October 15, 2018 by Barberry et al.
File No. 001-37867
Dear Mr. Icahn,
We have reviewed the above-captioned filings, and have the following
comments. Some
of our comments may ask for additional information so we may better
understand the disclosure.
Please respond by amending the filings and/or by providing the
requested information.
After reviewing any amendments and/or any information provided in response to
these
comments, we may have additional comments. If you do not believe our comments
apply to
your facts and circumstances, and/or do not believe an amendment is required,
please tell us why
in a written response.
Definitive Soliciting Material filed under Rule 14a-12 on October 15, 2018 |
Exhibit 2
1. Please refer to the assertion that reads, "[m]ake no mistake, if the
current `opportunistic' deal
succeeds, 100% of the discount, approximately $11 billion, will be an
economic windfall
mostly attributable to Michael Dell and his Silver Lake partners." In
addition, please refer to
the question that reads, "[h]ow else can one explain an agreement that so
obviously transfers
$11 billion in value to the controlling stockholders at the expense of the
minority
stockholders?" In the definitive proxy statement to be filed, please
briefly disclose the
mathematical foundation presumably supporting the participants' assertion
that stockholders
other than Michael Dell and Silver Lake will be deprived of $11 billion in
value.
Carl C. Icahn
Icahn Enterprises L.P.
October 25, 2018
Page 2
2. In the definitive proxy statement to be filed, please include a clarifying
statement that
indicates, if true, that the referenced purported value transfer will not
result in a direct deposit
into the private accounts of Michael Dell and Silver Lake. Alternatively, to
the extent the
participants believe that the purported value will be so transferred, please
reconcile such
belief with the fact that Dell Technologies Inc. as distinguished from
Michael Dell and
Silver Lake is seeking shareholder approval of a merger agreement
authorizing the merger
of Teton Merger Sub Inc. into Dell Technologies Inc. pursuant to a regulated
solicitation.
3. In the definitive proxy statement to be filed, please briefly disclose in
slightly greater detail
the analytical steps that support the participants' belief that the "Dell
Tracker...is worth on
pure mathematical basis approximately $144 per share." While we recognize
that footnote
number one has been offered in an apparent attempt to provide a general
factual basis for the
statement, the Division's expectations remain that disclosure must be
provided that facilitates
shareholders' understanding of the mathematical foundation of, and the
limitations on, the
projected realizable value. Absent such disclosure, competing parties in
these types of
contested solicitations may not engage in meaningful debate of the merits of
such valuations
for a number of reasons, not the least of which are perceptions of serious
liability risk for
attempting to forecast an alternative valuation. Refer to Note b. of Rule
14a-9 and Exchange
Act Release No. 16833 (May 23, 1980).
PREC14A filed on October 16, 2018
4. In a CNBC interview with Mr. Icahn that aired on October 15, 2018, and
remains available
on the CNBC website, Mr. Icahn represented that "Dell has continually
manipulated the
corporate machinery to depress the value of the tracking stock[ ]...." In
the proxy statement
to be filed, please include a clarifying statement that indicates the
factual support for the
claim, or alternatively removes the implication, that Michael Dell
intentionally took action to
manipulate the value of the tracking stock. In addition, please reconcile
how the Dell
tracking stock could be worth $144 if in fact it existing value has been
artificially suppressed
but nevertheless reflects a value ascribed by a market. If possible,
describe the circumstances
under which the alleged artificial depression of the value could be
reversed.
5. In the same CNBC interview, Mr. Icahn expresses the view that upon receipt
of information
relating to his "220 request" under Delaware General Corporate Law, evidence
will surface
which will demonstrate that "Dell" has engaged in "manipulation" and
"coercion." In the
definitive proxy statement to be filed, please either disclose the factual
foundation supporting
this expectation or a clarifying statement that also explains in part
whether or not the
participants are pursuing any breach of fiduciary claims in light of the
quoted assertions.
We remind you that the participants are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence
of action by the
staff.
Carl C. Icahn
Icahn Enterprises L.P.
October 25, 2018
Page 3
You may contact me at (202) 551-3266 with any questions.
Sincerely,
/s/ Nicholas P. Panos
Nicholas P. Panos
Senior Special Counsel
Office of Mergers &
Acquisitions
cc: Andrew Langham, Esq.
Icahn Enterprises L.P.