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Court delays conference on Icahn lawsuit to block Dell deal

A Dell laptop computer is pictured in New York in this August 26, 2008 file photograph. REUTERS/Brendan McDermid/Files
A Dell laptop computer is pictured in New York in this August 26, 2008 file photograph. REUTERS/Brendan McDermid/Files

By Dave Warner

(Reuters) - A legal battle between activist investor Carl Icahn and computer magnate Michael Dell has been delayed until Friday, with a court setting a hearing then on Icahn's contention that Dell's bid to buy back Dell Inc is "an insult to shareholders."

Delaware's Chancery Court scheduled a conference for 12:30 p.m. Friday to determine whether to grant Icahn's request for an expedited hearing.

Icahn ranks as the No. 2 investor in Dell, with 8.9 percent of the shares. Known for his aggressive tactics, Icahn sued Dell and its board this month as part of a broader effort to derail CEO Michael Dell's proposed $25 billion buyout of the world's No. 3 PC maker.

Icahn, who argues that the offer severely undervalues the company, wants the court to stop Dell Inc from changing voting requirements in favor of the CEO's bid, while forcing the company to hold a special vote on the proposal at the same time it convenes its annual shareholders' meeting. Icahn wants to nominate a slate of directors to replace several board members, arguing that they are not acting in shareholders' best interests in accepting the CEO's deal.

The court had originally listed the conference for Monday before Chancellor Leo Strine, but rescheduled it for Friday, according to a court official and a lawyer familiar with the case.

At that time, Strine could rule whether Icahn has made his case to expedite the case and could also set a date for the proceeding, the court official said.

Icahn's lawyers will have to show that Icahn is at risk of irreparable injury if they are to win their bid for an expedited hearing.

Dell reached a new agreement with Dell Inc on August 2, boosting his bid for the company in hopes of ending months of wrangling. The new bid included a special dividend of 13 cents a share on top of a 10-cent increase in the sale price to $13.75 per share. If the deal goes through, it would be worth $25 billion.

Dell and his private equity partner Silver Lake also convinced the company's special committee to agree to change the voting rules so that abstentions no longer count as opposing votes.

The latest agreement between Michael Dell and the board set a new September 12 date for a special meeting of shareholders to vote on the deal. The company's annual shareholding meeting is scheduled for October 17.

The special meeting has already been postponed three times as Michael Dell and Silver Lake have struggled to round up the needed votes or convince "no" votes to support the deal.

Icahn's legal team said in court papers that the question before the court is "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."

Brian Quinn, a professor at Boston College Law School, said it is not clear what potential harm Icahn could potentially suffer since there is no competing offer for all of the stock.

Last month, Icahn and Southeastern Asset Management proposed a share buy-back proposal that they say could be worth up to $18 per share. Under their plan, Dell would remain a public company.

The battle over Dell has raged for months, adding more uncertainty about a company already shrinking along with a rapidly declining PC market. Dell is trying to transform itself into an IBM-like enterprise computing firm.

Strine has already considered requests to expedite class actions over the Dell buyout. In a hearing on June 19 he found that the board had done enough to protect shareholders.

But since then, some things have changed. The board will no longer consider abstentions as "no" votes, which Strine had cited as a protection of shareholders.

Also, on Tuesday, Dell will have gone 13 months without an annual meeting, which under Delaware law gives shareholders a right to sue to force a meeting.

That has given Icahn an opening to ask Strine to move the two meetings to the same day.

"I think the real question is 'What is Strine's attitude toward the rule change' (about abstentions)," said Quinn. "Now that one of the more important protections is gone, will Strine feel the same way? He may, or he may not."

The board said in court papers that holding an annual shareholder meeting on September 12 would be "unprecedentedly swift, but also impracticable (if not impossible) for any public company."

(Reporting by Dave Warner in Philadelphia; Editing by Dan Grebler)

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