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EFHed: Aug 01 2013 01:16P,

Transaction ID 53359611 Case No. 8762-

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

HIGH RIVER LIMITED PARTNERSHIP, ICAHN PARTNERS, LP, ICAHN PARTNERS MASTER FUND, LP, ICAHN PARTNERS MASTER FUND II, LP, and

ICAHN PARTNERS MASTER FUND III LP,


Plaintiffs,

DELL INC., MICHAEL DELL, JAMES W. BREYER, DONALD J. CARTY, JANET F. CLARK, LAURA CONIGLIARO, KENNETH M. DUBERSTEIN, WILLIAM H.

C.A. No.

GRAY, III, GERARD J. KLEISTERLEE, KLAUS S. LUFT, ALEX J. MANDL, SHANTANU NARAYEN, and ROSS
PEROT, JR.,
Defendants.
VERIFIED COMPLAINT

Plaintiffs High River Limited Partnership, Icahn Partners, LP, Icahn Partners
Master Fund, LP, Icahn Partners Master Fund II, LP, and Icahn Partners Master Fund III,

LP (collectively, the "Icahn Parties"), by and through their undersigned counsel, allege
upon knowledge as to themselves and upon information and belief as to all other matters,
as follows:

NATURE OF THE ACTION

1.

Dell Inc. ("Dell" or the "Company") is in crisis. The lame-duck board of

directors of Dell has been in office for over a year, but the board has repeatedly refused to
hold an annual meeting of stockholders to allow them to decide who should run the

Company at this critical time. Instead the directors have been using their waning
incumbency to try to ram through a going-private transaction proposal by Michael Dell

and his associates to acquire the Company (the "Merger"), even though that Merger has repeatedly failed to gain the necessary stockholder vote for approval. Moreover, by
refusing to call an annual meeting, the directors are deliberately preventing the
stockholders from voting to remove them and electing an alternative and superior

proposal made by Plaintiffs and othersa leveraged recapitalization of the Company.

2.

The board has taken further action to help Mr. Dell while still failing to call

an annual meeting. It has twice adjourned the special meeting of stockholders called to vote on the Merger (the "Special Meeting"), because each time the stockholders had voted to reject the Merger. Then it offered to reset the record date for the meeting in exchange for a 10 cent bump from Mr. Dell and Silver Lake. According to press reports,
Mr. Dell and the board have now agreed to change the record date of the Special Meeting.

A change in record date would be designed to give Mr. Dell a chance to finally win the

vote because the board had previously taken steps that changed the stockholder base after

the original June 3 record date by chasing away long-term holders who opposed the
Merger and replacing them with arbitrageurs who were far more likely to accept it.
3. The current record dateJune 3, 2013, which was set in late Mayis far

from stale, particularly since the Merger was approvedby the board in early February.
But, a change in record date could be dispositive because from the middle of June onward

the board and Mr. Dell, faced with massive stockholder resistance to the Merger, engaged
in a concerted effort to convince long-term stockholders who oppose the Merger that Dell

is facing enormous economic headwinds and that the market value of the Company's
stock will fall off a cliff if the Merger is voted down. Part of the purpose of these
presentations was to cause the anti-Merger stockholders to sell their shares with the knowledge that many of those shares would be bought by arbitrageurs who could be counted on to support the Merger if the record date was reset. 4. That campaign has been deeply cynical. Immediately after the Merger is

approved by stockholders, the Company and its investment bankers will be trying to

syndicate the financing necessary to consummate the highly leveraged Merger, and there

is no possibility that the Company will be telling debt investors that the sky is falling.
Indeed, the Power Point presentations showing that the Company can easily shoulder the new acquisition debt of $15.75 billion must already be drafted and resting in the servers
and hard drives of both Dell and its investment bankers, where they coexist uneasily with

the presentations to the stockholders saying that Dell could lose half its value if the
Merger is not approved. 5. It takes extraordinary cynicism to tell stockholders that the Company is

falling apart, and therefore they must vote for the Merger as their only way out, while at
essentially the same time telling prospective debt holders that everything is fine and that
the Company will easily handle another $15.75 billion in debt. It takes even more

cynicism, though, for fiduciaries to frighten stockholders into selling stock in order to put

the stock in the hands of arbitrageurs who can be counted on to support the Merger
particularly when the board prevents stockholders from considering alternative
transactions.

6.

That strategy gave the board a way to force the Merger through if all else

failed. And all else has now failed since Mr. Dell and the board have never been able to

gain enough votes to approve the Merger. Now, the Special Committee of the board
charged with supervising the merger has told Mr. Dell that for $0.10 per share (or 73

basis points) it will adjourn the meeting yet again and set a new record date. According to press reports, Mr. Dell has accepted that offer.
7. These are manipulations. What makes these manipulations even worse is

that there is an alternative to Mr. Dell's Mergeran alternative that Plaintiffs have been
urging on the board since early March and that the board has done everything in its power

to kill. And that is the recapitalizationa transaction that mirror's Michael Dell's

Merger, but instead of allowing him to gain control of 75% of the Company (which
would be his share after the Merger) and forcing the public stockholders out, would allow
those stockholders who wanted to stay with the Company to remain. The board has

continually rejected this approach for a varying list of purported reasons. Plaintiffs have
responded to each of the board's rationalizations and have now raised $5.2 billion in

committed financing to permit a recapitalization. The board, however, has repeatedly


refused to schedule a stockholdermeeting that would permit the stockholders to elect
new directors committed to such a transaction, even though the current directors were

elected on July 13, 2012over twelve months ago. Instead, the board has been trying to
get Mr. Dell's Merger rammed through before August 13, 2013, when Plaintiffs may
petition this Court under 8 Del. C. 211 for an annual meeting to elect a new board. 8. The directors other than Mr. Dell apparently contend that all of their actions

have been taken not to help Mr. Dell, but to either "protect" the stockholders, or to cause Mr. Dell to raise his bid. Just before the second session of the Special Meeting, Mr. Dell

offered to increase his bid by ten cents per shareone whole dimefrom $13.65 to

$13.75 if the board amended 3.21 of the Merger Agreementa provision that the
Merger Agreement itself says cannot be waivedto require only the approval of a majority of the unaffiliated stockholders who actually vote, rather than a majority of all
unaffiliated shares.

9.

The Special Committee rejected that request, but offered Mr. Dell what he

really wantedanotheradjournment and a change in the record date. And the $.10 per
share fee they agreed to is only payable if Mr. Dell winshe gets his fourth chance to

win for free, and risks nothing if the stockholders still reject his Merger. 10. What makes this worse is that while they pretend in public to be toughly

negotiatingwith Mr. Dell, the directors are refusing to use their real weapon to get Mr.
Dell to pay his real best and final price. And that is setting the date for an annual stockholders meeting (and, just as importantly, taking firm action to prevent Mr.

Dell from buying stock to win the vote or allowing Plaintiffs who are contractually
barred by Dell from making such purchases to buy stock also).
11. Mr. Dell publicly announced on July 25, 2013 that he is "at peace" with

either the Merger or a return to the pre-Merger status quo and that he will pay no more
than a bumped price of $13.75 per share. It is doubtful, however, that as the founder, namesake, chairman and CEO of Dell, he is "at peace" with the prospect that the
stockholders will throw him and his friends off the board and choose a leveraged

recapitalization in which he plays no part. Thus, a board that was actually attempting to maximize value for the stockholders and to get Mr. Dell to pay a higher price
would, faced with the current situation, immediately set an annual meeting date to be held at the same time as any continued Special Meeting. That is the board's big

stick in their "negotiations" with Mr. Dell, but they have repeatedly refused to use it and

their failure to do so is yet another fact that undermines the presumption that this board is
actually independent. Moreover, the directors know that by delaying the annual meeting

they are making the recapitalization less likely since the committed financing obtained
by Plaintiffs expires on September 30, 2013 and there is no assurance that it will able to

be renewed. Thus, if no annual meeting is held soon the opportunity for a leveraged recapitalization might disappear. There is no rational basis or compelling justification for
the directors allowing that to happen. It is, however, very much in the defendants'
interest for that to occur especially if the Merger is voted down because that could greatly increase their chances for remaining in control of Dell. 12. By not setting an annual meeting datethe one sure way to pressure Mr.

Dell into making his true best and final bid and the only way to allow the stockholders to
choose which alternative they wantby campaigning to drive long-term anti-Merger

stockholders out of the Company and by failing to take action to prevent Mr. Dell from

making massive market purchases as arbitrageurs sell shares if the merger fails, while
preventing Plaintiffs from buying material amounts of stock, the board has plainly

revealed its hand. It is loyal not to the stockholders but to Mr. Dell and/or to the

directors' own incumbencies and is willing to change the rules to help Mr. Dell force his Merger through as cheaply as possible or to allow Mr. Dell to re-elect the incumbent
board if the Merger fails. The directors have failed to act in good faith and have failed in
their duty of loyalty.

13.

This is an action to enjoin the lame-duck directors from using their changed

record date for the Special Meeting or from holding that meeting until it can be held at
the same time as the 2013 annual meeting of stockholders
THE PARTIES

14.

The Icahn Parties, which are managed by or under the direction of Carl C.

Icahn, own over 150 million shares of Dell stock, or over $2 billion at the Merger price,
and considerably more if the Icahn Parties' estimation of Dell's value is correct.

Plaintiffs oppose the Merger, have waged a proxy contest against it and have proposed a
leveraged recapitalization in its place. If an annual meeting of stockholders is held, they

intend to run a proxy contest to elect a board committed to a recapitalization.

15.

Defendant Dell is a Delaware corporation with its principal executive

offices in Round Rock, Texas. Started by Mr. Dell in 1984, Dell has grown from a
personal computer ("PC") company to become a global information technology company

that offers its customers a broad range of solutions and services delivered directly by Dell
and through other distribution channels.

16.

Dell has elected its directors in late June or early July for decades. In 2012,

it held its annual meeting on July 13, 2012. Thus, the current directors have been in

office for over a year, but they have made no apparent efforts to schedule an annual
meeting at which the stockholders could decide to retain their services. Plaintiffs have

repeatedly urged the board to allow the Merger to be voted on at the same time as an

election of directors so the stockholders could directly choose whether to elect the Merger
or a slate of directors that supported recapitalization, but the board has refused to do so. 17. Defendant Michael Dell is the Company's founder, CEO and Chairman.

As of July 2013, Michael Dell and various affiliates owned approximately 15% of Dell's
common stock, making him the Company's largest stockholder.

18.
April 2009.

Defendant James W. Breyer has served as a director of the Company since

19.

Defendant Donald J. Carty ("Carty") has served as a director of the

Company since December 1992. Carty served as Vice Chairman and Chief Financial

Officer of Dell from January 2007 until June 2008, for which he received approximately

$9.8 million in compensation. Carty was deemed non-independent pursuant to NASDAQ


Stock Market rules as recently as the Company's 2011 Proxy Statement.
20. Defendant Janet F. Clark has served as a director of the Company since

September 2011.

21.

Defendant Laura Conigliaro has served as a director of the Company since

September 2011. 22. Defendant Kenneth M. Duberstein has served as a director of the Company

since September 2011. 23. Defendant Gerard J. Kleisterlee has served as a director of the Company

since December 2010.

24.
March 1995.

Defendant Klaus S. Luft has served as a director of the Company since

25.

Defendant Alex J. Mandl ("Mandl") has served as a director of the

Company since November 1997, and currently serves as Presiding Director of Dell and
Chair of the Special Committee of the board that responded to the Merger (the "Special
Committee"). Mr. Mandl chaired the two sessions of the Special Meeting to date and declared them adjourned on his authority as meeting chairman.

26.

Defendant Shantanu Narayen has served as a director of the Company since

September 2009.

27.

Defendant Ross Perot, Jr. has served as a director of the Company since

December 2009, following Dell's acquisition of Perot Systems Corporation ("Perot


Systems") for approximately $3.9 billion in November 2009.
BACKGROUND FACTS

The Going Private Transaction

28.

On February 5, 2013, the Dell board of directors, acting on the

recommendation of the Special Committee, unanimously approved the Merger

Agreement whereby Mr. Dell and Silver Lake Partners, L.P. ("Silver Lake") would cash

out the Company's public stockholders for $13.65 per share. The approximately $25
billion Merger would result in Michael Dell owning approximately 75% of the remaining
entity and Silver Lake owning approximately 25%.

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Plaintiffs Propose A Recapitalization But The Board Refuses To Schedule The Annual Meeting At The Same Time As The Special Meeting

29.

On March 5, 2013, Plaintiffs proposed that the board adopt a form of

leveraged recapitalization and specifically suggested that the board allow the
stockholders to choose which transaction they wanted by holding a special meeting to

vote on the Merger at the same time as the annual meeting to elect a new board. In that
letter, Plaintiffs specifically stated that at the annual meeting, "[w]e intend to run a slate

of directors that, if elected, will implement our proposal for a leveraged recapitalization."
30. The board did not agree then, or ever, to hold an annual meeting. The

Company did engage in talks with Plaintiffs and as a part of those talks Plaintiffs signed
an agreement forbidding them to make material additional purchases of stock. Critically,
Mr. Dell faces no such barrier and accordingly unless the board takes action to prevent it, Mr. Dell could buy outcome-determinative amounts of stock to try to win a proxy contest at the eventual annual meeting, while Plaintiffs would be prevented from doing so. The
directors have a direct interest in allowing Mr. Dell to do so because he would use the
new shares to vote for them as well as himself.

31.

In May, 2013, Plaintiffs outlined a somewhat different recapitalization as a

superior alternative to the Merger. That proposed recapitalization has since been
amended and Plaintiffs believe that it represents a superior alternative to the Merger.

32.

In a May 9, 2013 letter to the board, Plaintiffs urged "the Board to put our

proposal before Dell's shareholders, preferably by recognizing it as a Superior Proposal

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and proceeding with our proposal in lieu of the Going Private Transaction; or
alternatively by calling an annual meeting simultaneously with the vote of shareholders
on the Going Private Transaction."
33. Plaintiffs reiterated in the letter their intent to run a slate of directors at the

Company's annual meeting, which, if elected, would implement the recapitalization.


Thus, Plaintiffs implored the Dell board to "do everything necessary to create a level
playing field, including holding the annual meeting and the vote on the Going Private
Transaction at a single meeting." Plaintiffs have made the same point to the board

repeatedly since then and have also repeatedly warned it about the issue raised by the
standstill signed by Plaintiffs while Mr. Dell is permitted to buy stock. 34. Compounding the problems created by the directors, during negotiations

with Plaintiffs, the directors took the view that Plaintiffs' recapitalization proposal was not sufficiently definite because it did not have committed financing. Plaintiffs therefore undertook raising, and did raise, $5.2 billion in committed financing. That financing, however is only committed until September 30,2013 and thus if a new board is not

elected sufficiently before approximately September 15, to consider and potentially

approve the financing and recapitalization, the financing will expire by its terms and there
is no guarantee that it can be extended or replaced. The board is aware of these facts, and
this point has been repeatedly made to it by Plaintiffs. The board, however, is committed

to preventing the stockholders from being allowed to vote for new directors who are in

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favor of the recapitalization proposal because, among other things, the current directors
might lose their seats.

35.

The Dell board refused to permit a level playing field. Instead, the director

defendants decided not to hold the annual meeting in July as has been Dell's practice for
many years. Instead, they indefinitely deferred the annual meeting and it appears they still have made no effort to schedule such a meeting. Thus, the director defendants tilted

the playing field in favor of the Merger and against the recapitalization proposed by
Plaintiffs. 36. The effect of this was to leave Dell's stockholders with the choice of

accepting an immediate cash payment of $13.65 pursuant to the Merger or incurring the market risk of waiting an unknown number of months until Plaintiffs' nominees can be elected and potentially implement the proposed recapitalization if financing is still
available. That delay, and the market risk caused by it, was intended to render the

recapitalization less attractive than it should be, and to push stockholders into voting for the Merger. To date that coercive effect has not been sufficient to cause enough
stockholders to vote in favor of the undervalued Merger and if defendants had permitted a

vote at the Special Meeting on its original date, its adjourned date, or its second

adjourned date the Merger would have been overwhelmingly rejected.

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Defendants' Further Efforts To Rig The Vote

37.

The Special Meeting was first convened July 18, 2013. On that date, Mr.

Dell had not obtained nearly enough votes to approve the Merger. In an effort to procure
stockholder approval of the Merger, the chairman of the meeting unilaterally adjourned the Special Meeting until July 24, 2013. On July 24, the board once more adjourned the
meeting. This time, though, not only did Mr. Dell lack the votes to get the Merger

approved, he had just delivered his latest proposal to the Special Committee.
38. Mr. Dell's proposal was simple. The board would need to "amend"

expressly unwaivable 6.1 of the Merger Agreement to provide that an affirmative vote of a majority of the unaffiliated stockholders would no longer be necessary. Instead all

that would be needed to approve the Merger would be the vote of a majority of those

actually voting. According to Mr. Dell, the current provision is "unfair" to those
stockholders who vote in favor of the Merger, and "[t]here is simply no rational basis for

shares that are not voted to count as votes against the merger agreement for purposes of
the unaffiliated stockholder vote."

39.

Mr. Dell did not explain why he signed an agreement with such an unfair

and irrational provision in it. Nor did he explain why he believes that he and the board have the power to change the definition of "unaffiliated stockholders" in the Merger

Agreement, given that 6.1 specifically states that the provision "shall not be waivable"

even by a "writing by [Mr. Dell's acquisition vehicle] and Company." Perhaps Mr. Dell

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contends that fundamentally amending the provision does not constitute"waiving" it, but
8.11 of the Merger Agreement answers that. It explicitly equates amendments with
waiversunder the Merger Agreement they are the same thing. Moreover, even if such a
contention was correct that would mean that making the unaffiliated stockholders

provision non-waivable in the first place was essentially a sham because while it could
not be "waived" it could always be "amended." 40. The stockholders were given no indication that the provision did not matter,

though. Rather, again and again the stockholders were told that they did not need to vote

to oppose the Merger. For example, 3.21 of the Merger Agreement provides:

Required Vote of Company Stockholders. The affirmative vote (in person or by proxy) at the Company Meeting, or any adjournment or postponement thereof, of (i) the holders of a majority of the outstanding Shares entitled to vote thereon in favor of the adoption of this Agreement (the "Stockholder Approval") and (ii) the holders of a majority of the outstanding Shares entitled to vote thereon not owned, directly or indirectly, by the Parent Parties, the MD Investors, any other officers and directors of the Company or any other Person having any equity interest in, or any right to acquire any equity interest in, Merger Sub or any Person of which Merger Sub is a direct or indirect Subsidiary, in favor of the adoption of this Agreement (the "Unaffiliated Stockholder Approval" and, together with the Stockholder Approval, the "Company Stockholder Approvals") are the only votes or approvals of the holders of any class or series of capital stock of the Company or any of its Subsidiaries which are necessary to adopt this Agreement and approve the transactions contemplated herein. 41. As set forth in Section 6.1 of the Merger Agreement, Unaffiliated

Stockholder Approval was a non-waivable condition to the Going Private Transaction:

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Section 6.1 Conditions to Each Party's Obligation to Effect the

Merger. The respective obligations of each party to effect the Merger and the other transactions contemplated herein shall be subject to the fulfillment (or waive in writing by Parent and the Company, except with respect to Section 6.1(a). which shall not be waivable) at or prior to the Effective Time of the following
conditions:

(a) Company Stockholder Approvals:

(i) The Stockholder Approval shall have been obtained in accordance with applicable Law and the certificate of incorporation and bylaws of the Company. (ii) The Unaffiliated Stockholder Approval shall have been
obtained....

42.

The Company's May 30 proxy statement accurately described the Merger

Agreement, stating at page 135 that:


Proposal to Adopt the Merger Agreement For the Company to consummate the merger, under Delaware law and under the merger agreement, stockholders holding at least a majority of the shares of Common Stock outstanding at the close of business on the record date must vote "FOR" the proposal to adopt the merger agreement. In addition, the merger agreement requires, as a condition to the consummation of the merger, that stockholders holding at least a majority of the shares of Common Stock outstanding at the close of business on the record date, other than the Parent Parties, the MD Investors, the Gift Trusts, any other officers and directors of the Company or any other person having any equity interest in, or any right to acquire any equity interest in, Merger Sub or any person of which Merger Sub is a direct or indirect subsidiary, vote "FOR" the proposal to adopt the merger agreement.

43.

The requirement of Unaffiliated Stockholder Approval as a condition of the

Going Private Transaction was repeated in a June 2013 Dell Special Committee Investor

16

Presentation included as part of Dell's Schedule 14A Definitive Additional Materials

filed June 5, 2013 and again in Schedule 14A Definitive Additional Materials filed June 24, July 5, and July 15. To back up its claim that "favorable rules of engagement" had

been established, the board's presentation stated that the "Transaction requires approval
by holders of a majority of the unaffiliated shares." (footnote omitted).
44. Similarly, in Schedule 14A Definitive Additional Materials filed June 18,

2013, the Company stated that "If you fail to vote or abstain from voting on the
transaction, the effect will be the same as a vote against the transaction." (emphasis

added.) Likewise, in a July 8, 2013 letter from the Special Committee to the Company's stockholders, filed as part of further Schedule 14A Definitive Additional Materials, the
Committee reiterated that "failing to vote has the same effect as voting against the

transaction." (emphasis in original). Another Schedule 14A Definitive Additional

Materials filed just three days later also warned that "If you fail to vote or abstain from
voting on the transaction, the effect will be the same as a vote against the transaction."

(emphasis in original). The same language appears in a July 22, 2013 Schedule 14A Definitive Additional Materials and in an FAQ on Voting Process included in a

communication to Dell employees and filed the same day as part of another Schedule

14A Definitive Additional Materials, where it was again made clear that "If you fail to
vote or abstain from voting on the merger agreement, the effect will be the same as a vote against the adoption of the merger agreement."

17

Thus, the stockholders were repeatedly told that not voting is the same as voting "no."
The Special Committee has, at least for now, turned Mr. Dell down on 3.21. But, as discussed previously, it has offered him much the same thing by proposing a new record
date, which he reportedly has now accepted. Neither the Special Committee nor the
board attempted to maximize their negotiating leverage by setting an annual meeting for

the same date and time as the 4th session ofthe Special Meeting.
The Board Causes Stock To Flow To The Arbs

45.

Starting in early June 2013, the board caused Dell to begin a series of

presentations that purported to show that Dell was facing extremely strong economic

headwinds and that, because of those headwinds, the market would likely cause Dell's

stock price to plummet and stay down if the stockholders rejected the Merger. Dell

disseminated these projections widely, and they caused large downward movements in the stock price as longer term stockholders sold their apparently (and suddenly) far-more
risky shares in the market, often to arbitrageurs who saw an opportunity to make a nice profit if the Merger was approved.
46. The themes of these presentations were that Dell's personal computer

business was declining, the Company had been unable to forecast welland thus the rosier forecasts upon which Mr. Dell's proposal had been based were suspectthat companies in which stockholders voted down transactions underperformed, and that there were no better alternatives to the Merger. One noteworthy slide, which was used in many

18

of the presentations given by Dell and its directors, andwhich has never been changed,
indicated that if the Merger were voted down the stock would probably be worth no more than the multiples used to value Hewlett-Packard's stock, which implied a range in values

from $5.88 to $8.72 per share for Dell's sharesfar below the Merger priceof $13.65
per share.

47.

There can be no doubt that this slide was meant to cause great concern

among Dell's shareholders and as the following chart shows, there can be little doubt that
it and the other statements made in the presentations found their markshareholders
dumped their shares immediately following a number of these predictions of reduced

value, which can be seen from the huge surge in the volume of stock trading. But there can also be little doubt that these charts were largely an exercise in cynicism. For example, take the valuation range of $5.88 to $8.72 per share. According to the Merger proxy statement and Dell's 10-Q for the first quarter of 2014, Dell currently has 1.755
billion shares of common stock outstanding. Multiplying the stock prices by the shares

outstanding, one finds that Dell is implying that the equity value of the Company if the
Merger is rejected would range from $10.3 to $15.3 billion.

48.

In the case of Dell, equity value equals total enterprise value because Dell

holds approximately $13.2 billion in cash and investments, while it had only
approximately $7.2 billion in short and long-term debt, giving it a negative net debt

number of approximately $6 billion. Thus, according to the (faulty) logic of Dell's slide

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(which among other things, ignores the value of that cost), after a vote against the
Merger, Dell's total enterprise value would range between the $10-15 billion it predicted
for the equity.

49.

What makes those numbers extremely awkward for Dell is the fact that

according to the Merger proxy statement, the Merger will be financed by new borrowings
of up to $2 billion in subordinated debt from Microsoft and an additional $13.75 billion

in syndicated debt. That totals $15.75 billion in new debt to fund the Mergeror more
than the implied enterprise value of the entire Company. The syndication of that debt
will start immediately after there is a favorable vote on the Merger. One can safely presume that none of Dell, Mr. Dell or the members of the board are going to be telling the purchasers of the debt that the Company is worth less than they are lending it.

Indeed, one can safely presume that at this very minute presentations are prepared that will explain how the Company's actual and projected EBITDA will clearly cover the debt charges, and that any reasonable valuation using the figures in those presentations would

show the Company to have an enterprise valuation equal to or above that implied by the
Merger price, which is approximately $25 billion.

50.

Such conduct cannot be justified. The presentations were designed to

frighten long-term stockholders who opposed the Merger into selling their stock in order
to get the shares into the hands of arbitrageurs, who could be counted on to support the

20

Merger. Indeed, upon information and belief, Dell's proxy solicitors expressly kept track of the amount of stock that was flowing into the hands of the arbitrageurs.
51. The following is a chart showing the trading prices, volumes in Dell's stock

and the daily volume compared to normal 2013 volume, from June 1, 2013 until July 25, 2013. As can be seen, trading volume spiked during those days when the board was attempting to scare Dell stockholders into voting for the Merger:
Adj.
Date

Open

High

Low

Close

Volume

Close

Event Mult, of 2012

Avg.
6/3/2013 13.36 13.43
13.44

13.46

13.33

13.45

10,932,200

13.37

0.6

6/4/2013
6/5/2013 6/6/2013 6/7/2013
6/10/2013

13.5
13.46
13.5 13.53

13.4

13.42 13.43
13.49 13.49 13.42

13,909,900
6,908,400
13,827,700 11,453,200 7,518,600 7,789,900

13.34
13.35
13.41 13.41 13.34 13.29

0.7

13.38
13.4

Special

Committee Presentation

0.4 0.7
0.6 0.4

13.42
13.52

13.46
13.4

13.46 13.4 13.39

13.48

6/11/2013 6/12/2013 6/13/2013


6/14/2013

13.43
13.41

13.36
13.36 13.36
13.38

13.37 13.37 13.45


13.39

0.4
0.7 0.4
0.6

13,689,600
8,737,200

13.29
13.37

13.38
13.42

13.58
13.5

11,630,900 8,444,300

13.31 13.33

6/17/2013
6/18/2013

13.41
13.41 13.47 13.38 13.38

13.43
13.74

13.39
13.4 13.4 13.33 13.32

13.41
13.48
13.41 13.37 13.35

0.4
5.1 0.7

98,983,700
13,706,500 17,173,600 22,960,500 10,615,200

13.4
13.33

6/19/2013
6/20/2013

13.48
13.4 13.38

13.29
13.27 13.26

0.9

6/21/2013

Dell Personal Presentation

1.2

6/24/2013
6/25/2013 6/26/2013

13.36
13.39 13.44 13.38
13.33 13.37 13.32

13.37 13.45 13.48 13.44


13.4

13.28
13.36 13.38

13.34
13.43 13.46

Special Committee Presentation

0.5
0.5 0.6
0.4
0.9 1.0 1.1

10,213,000 11,711,200
8,502,600
16,860,700

13.35 13.38
13.34
13.33 13.31

6/27/2013
6/28/2013 7/1/2013 7/2/2013

13.34
13.32 13.3

13.34
13.33

13.39

13.31 13.38 13.31

19,970,100 21,957,900

13.39 13.37 13.25

13.31
13.29 12.7

13.38

7/3/2013

13.31 13.25

27,334,000
1

13.31

1.4

7/5/2013

13.03

| 53,008,200 | 13.03
21

Special Committee Presentation

2.7

7/8/2013 7/9/2013 7/10/2013

13.36 13.43
13.4

13.44

13.28
13.36 13.33

13.44

50,012,300

13.44 13.36 13.33

2.6

13.48 13.4
13.46

13.36 13.33
13.35 13.32

26,878,000 31,077,100
24,035,800 20,144,200 18,365,100 62,402,700 51,980,000

7/11/2013 7/12/2013 7/15/2013


7/16/2013 7/17/2013 7/18/2013 7/19/2013

13.36
13.37

13.34
13.28
13.14 12.92 12.75

13.35 13.32
13.15

13.39
13.3

13.29
13.19 12.8

13.15
13.02 12.88 13.12

13.19
12.99 13.22 13.17

13.02
12.88 13.12 13.14

13.12 13.16

13.07
12.99 12.95

42,562,000 34,726,600 36,477,400

Meeting Adjourned

13.14 13.02 12.88

7/22/2013 7/23/2013 7/24/2013


7/25/2013

12.97
13.04

13.12 13.05
13.25

13.02
12.88
12.92

12.85
12.66
12.84

21,616,600
94,583,700
15,148,800

12.83

12.92
12.98

Meeting Adjourned

12.85

12.99

52.

Upon information and belief, the board not only knew that stock was

flowing into arbitrage hands but it was part one of the Company's strategy of turning the
tide if necessary. Plaintiffs estimate that over 25% of the float was traded during the periods in which the Company was actively trying to scare the investors.
53. Now, the board is taking the second stepthe cynical maneuver to

enfranchise those arbitrage votes in exchange for a dime per share. Moreover, the board

still refuses to use the big stick of setting an annual meeting date. From these actions it is
clear that this board's loyalty in the end is to Mr. Dell and themselvesnot the public
stockholders.

54.

There is no compelling justification for the director defendants' actions

listed above, nor are the director defendants' actions reasonable in relation to a

reasonably perceived threat to the Company or its stockholders.

22

COUNT I

AGAINST THE DIRECTOR DEFENDANTS FOR BREACH OF FIDUCIARY DUTY

55.
herein.

Plaintiffs repeat and reallege the foregoing paragraphs as if fully set forth

56.

The director defendants have violated their fiduciary duties to the

Company's stockholders by placing the interests of Mr. Dell above those of the other

stockholders. Among other things, they have (1) delayed the annual meeting and failed
to allow the stockholders to vote on both the Merger and new directors at the same time;

(2) adjourned the Special Meeting three times in order to allow Mr. Dell's Merger to
prevail and have now changed the record date in order to allow him to pick up the arbitrageurs' votes; (3) radically talked down Dell's economic chances, which has had the effect of causing long-term stockholders opposed to the Merger to sell their shares, putting stock in the hands of arbitrageurs committed to the Merger; (4) failed to set an

annual meeting to force Mr. Dell to make his best bid and (6) failed to take steps to
prevent Mr. Dell from buying stock while keeping Plaintiffs from doing so.
57. Plaintiffs have no adequate remedy at law.
COUNT II DECLARATORY JUDGMENT

58.

The director defendants' reported agreement to set a new record date for the

Special Meeting for a contingent 73 basis points a share, while continuing to defer the

23

Company's 2013 annual meeting, and allowing Mr. Dell to purchase shares while
preventing Plaintiffs from doing so, constitute breaches of fiduciary duty by the director
defendants.

59.

Plaintiffs seek a declaration that the above described conduct would

constitute a breach of fiduciary duty. WHEREFORE, Plaintiffs respectfully request a final order and judgment: A. Enjoining defendants from holding the 4 session of the Special Meeting

with the new record date;

B.

Enjoining defendants from holding the 4 session of the Special Meeting

th

unless it is held at the same date and time as the annual meeting with the same record
date;

C.

Enjoining Mr. Dell and his affiliates from voting any Dell shares acquired

by market or private purchase after February 5, 2013 at the 2013 annual meeting of
stockholders;

D.
duty;

Declaring that defendants' actions detailed herein constituted breach of

E.

Enjoining the defendants from changing the voting standard requiring a

majority vote of all unaffiliated shares outstanding to approve the Merger included in 3.21 of the Merger Agreementa provision that the Merger Agreement itself says
cannot be waived;

24

F.

Awarding Plaintiffs damages for any losses caused by Defendants'

breaches of duty and the costs and disbursements of this action, including reasonable
attorneys' fees; and;

G.

Granting such other and further relief as this Court deems just and proper.

ASHBY & GEDDES

/s/ Stephen E. Jenkins (#2152)

Stephen E. Jenkins (#2152)


Philip Trainer, Jr. (#2788)

Marie M. Degnan (#5602) 500 Delaware Avenue, 8l Floor


P.O. Box 1150

Wilmington, DE 19899 Phone:(302)654-1888

Attorneysfor the Icahn Parties


Dated: August 1,2013

25