SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
Under Section 13(e) of the Securities Exchange Act of 1934
Amendment No. 9
DELL INC.
(Name of Issuer)
Dell Inc.
Denali Holding Inc.
Denali Intermediate Inc.
Denali Acquiror Inc.
Silver Lake Partners III, L.P.
Silver Lake Technology Associates III, L.P.
SLTA III (GP), L.L.C.
Silver Lake Group, L.L.C.
Silver Lake Partners IV, L.P.
Silver Lake Technology Associates IV, L.P.
SLTA IV (GP), L.L.C.
Silver Lake Technology Investors III, L.P.
Mr. Michael S. Dell
Susan Lieberman Dell Separate Property Trust
MSDC Management, L.P.
MSDC Management (GP), LLC
(Name of Persons Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
24702R101
(CUSIP Number of Class of Securities)
| Lawrence P. Tu Senior Vice President and General Counsel Dell Inc. One Dell Way Round Rock, Texas 78682 (512) 338-4400 |
Karen King Chief Legal Officer Silver Lake Partners 2775 Sand Hill Road, Suite 100 Menlo Park, California 94205 (650) 233-8120 |
Michael S. Dell
c/o Dell Inc.
One Dell Way
Round Rock, Texas 78682
(512) 338-4400
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Persons Filing Statement)
With copies to:
| Jeffrey J. Rosen, Esq. William D. Regner, Esq. Michael A. Diz, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 |
Richard Capelouto, Esq. Chad Skinner, Esq. Simpson Thacher & Bartlett LLP 2475 Hanover Street Palo Alto, California 94304 (650) 251-5000 |
Steven A. Rosenblum, Esq. Andrew J. Nussbaum, Esq. Gordon S. Moodie, Esq. Wachtell, Lipton, Rosen & Katz 52 West 52nd Street New York, New York 10019 (212) 403-1000 |
This statement is filed in connection with (check the appropriate box):
| x | The filing of solicitation materials on an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. |
| ¨ | The filing of a registration statement under the Securities Act of 1933. |
| ¨ | A tender offer. |
| ¨ | None of the above. |
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ¨
Check the following box if the filing is a final amendment reporting the results of the transaction: ¨
CALCULATION OF FILING FEE
|
| ||
| Transaction Valuation* | Amount of Filing Fee | |
| $24,592,442,397.43 |
$3,354,409.14 | |
|
| ||
|
| ||
| * | Set forth the amount on which the filing fee is calculated and state how it was determined. |
| * | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11: In accordance with Exchange Act Rule 0-11(c), the filing fee of $3,354,409.14 was determined by multiplying 0.0001364 by the aggregate merger consideration of $24,592,442,397.43. The aggregate merger consideration was calculated as the sum of (i) the product of (a) 1,781,358,078 outstanding shares of common stock (including shares subject to restricted stock units and shares of restricted stock) as of August 5, 2013 to be acquired in the merger, multiplied by (b) the per share merger consideration of $13.75, plus (ii) the product of (x) 15,182,262 shares of common stock underlying outstanding employee stock options with an exercise price of $13.75 or less, multiplied by (y) $6.51, representing the difference between the $13.75 per share merger consideration and the $7.24 weighted average exercise price of such options. |
| x | Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule, and the date of its filing. |
Amount Previously Paid: $2,829,910.77
Form or Registration No.: Schedule 14A
Filing Party: Dell Inc.
Date Filed: March 29, 2013
Amount Previously Paid: $524,498.37
Form or Registration No.: Schedule 13E-3/A
Filing Party: Dell Inc.
Date Filed: August 14, 2013
Introduction
EXPLANATORY NOTE
On September 23, 2013, Denali Borrower LLC, a wholly-owned subsidiary of Denali Acquiror Inc. (“Merger Sub”), and Denali Finance Corp., a wholly-owned indirect subsidiary of Merger Sub (collectively, the “Issuers”), and Merger Sub entered into a Purchase Agreement pursuant to which the Issuers agreed to issue and sell $1,500,000,000 aggregate principal amount of 5.625% senior first lien notes due 2020 (the “Notes”) to the initial purchasers named therein. The offering is exempt from registration under the Securities Act of 1933, as amended. The closing of the Notes offering is expected to occur on October 7, 2013, and the Issuers expect to deposit into escrow on that date the gross proceeds of the Notes offering plus an amount sufficient to pay all regularly scheduled interest that would accrue on the Notes to November 11, 2013 (the “Interest”). Upon release of the funds from escrow, the proceeds of the Notes will be used to fund a portion of the cash consideration for the proposed transactions contemplated by the Agreement and Plan of Merger, dated as of February 5, 2013, as amended on August 2, 2013, by and among Denali Holding Inc., a Delaware corporation (“Parent”), Denali Intermediate Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Intermediate”), Merger Sub, a Delaware corporation and wholly-owned subsidiary of Intermediate and Dell Inc., a Delaware corporation (the “Company”) and the issuer of the common stock, par value $0.01 per share that is subject to the Rule 13e-3 transaction. Denali Borrower LLC has syndicated and priced a US dollar denominated senior secured term loan B facility in an aggregate amount of $4,660,000,000, a Euro denominated senior secured term loan B facility in an aggregate amount of €700,000,000 and a US dollar denominated senior secured term loan C facility in an aggregate amount of $1,500,000,000. The Company terminated and paid in full amounts due in connection with the Dell Asset Revolving Trust Program, the Dell Conduit Funding L.P. Program and the Dell Asset Securitization Holdings L.P. Program. Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P., Mr. Michael S. Dell, Susan Lieberman Dell Separate Property Trust and MSDC Management, L.P. entered into a letter agreement regarding their respective funding of the Interest and have amended their respective equity commitment letters correspondingly.
This Amendment No. 9 to Rule 13E-3 Transaction Statement on Schedule 13E-3, together with the exhibits thereto (the “Transaction Statement”) is being filed with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), jointly by the following persons (each, a “Filing Person,” and collectively, the “Filing Persons”): (i) the Company, (ii) Parent, (iii) Intermediate, (iv) Merger Sub, (v) Silver Lake Partners III, L.P., a Delaware limited partnership, (vi) Silver Lake Technology Associates III, L.P., a Delaware limited partnership, (vii) SLTA III (GP), L.L.C., a Delaware limited liability company, (viii) Silver Lake Group, L.L.C., a Delaware limited liability company, (ix) Silver Lake Partners IV, L.P., a Delaware limited partnership, (x) Silver Lake Technology Associates IV, L.P., a Delaware limited partnership, (xi) SLTA IV (GP), L.L.C., a Delaware limited liability company, (xii) Silver Lake Technology Investors III, L.P., a Delaware limited partnership, (xiii) Mr. Michael S. Dell, an individual and Chairman and Chief Executive Officer of the Company, (xiv) Susan Lieberman Dell Separate Property Trust (and, together with Mr. Dell, the “MD Investors”), (xv) MSDC Management, L.P., a Delaware limited partnership and (xvi) MSDC Management (GP), LLC, a Delaware limited liability company, to incorporate by reference into Item 16 thereof the disclosures identified below in Item 16(b)(3), Item 16(d)(3)(ii), Item 16(d)(4)(ii), Item 16(d)(5)(ii), and Item 16(d)(9)(ii). Item 16 of the Transaction Statement, as so amended, is set forth below in its entirety.
Item 16. Exhibits
| (a)(2)(i)(A) | Definitive Proxy Statement of Dell Inc. (incorporated by reference to the Schedule 14A filed on May 31, 2013 with the Securities and Exchange Commission). | |
| (a)(2)(i)(B) | Proxy Statement Supplement of Dell Inc. (incorporated by reference to the Schedule 14A filed concurrently with this Transaction Statement with the Securities and Exchange Commission). | |
| (a)(2)(ii) | Form of Proxy Card (incorporated herein by reference to the Proxy Statement Supplement). | |
| (a)(2)(iii) | Letter to Stockholders (incorporated herein by reference to the Proxy Statement Supplement). | |
| (a)(2)(iv) | Notice of Special Meeting of Stockholders (incorporated herein by reference to the Proxy Statement Supplement). | |
| (a)(2)(v) | Press Release issued by Dell Inc., dated February 5, 2013, incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(vi) | Key Messages, dated February 5, 2013, incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(vii) | E-mail from Michael Dell to Employees, transmitted on February 5, 2013, incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(viii) | E-mail from Brian Gladden and Steve Price to Employees, transmitted on February 5, 2013, incorporated by reference to Exhibit 99.4 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(ix) | VPD Call Transcript, dated February 5, 2013, incorporated by reference to Exhibit 99.5 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(x) | Executive Leadership Team Call Script, dated February 5, 2013, incorporated by reference to Exhibit 99.6 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(xi) | Team Member Frequently Asked Questions, dated February 5, 2013, incorporated by reference to Exhibit 99.7 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(xii) | E-mail to Channel partner, transmitted on February 5, 2013, incorporated by reference to Exhibit 99.8 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(xiii) | EMEA Works Council E-mail, transmitted on February 5, 2013, incorporated by reference to Exhibit 99.9 to the Company’s Current Report on Form 8-K filed with the SEC on February 5, 2013. | |
| (a)(2)(xiv) | Account Executive Talking Points, delivered on February 6, 2013, incorporated by reference to the Schedule 14A filed with the SEC on February 6, 2013. | |
| (a)(2)(xv) | E-mail to Employees, transmitted on February 7, 2013, incorporated by reference to the Schedule 14A filed with the SEC on February 7, 2013. | |
| (a)(2)(xvi) | E-mail to Employees, transmitted on February 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on February 8, 2013. | |
| (a)(2)(xvii) | Note, communicated on February 11, 2013, incorporated by reference to the Schedule 14A filed with the SEC on February 11, 2013. | |
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| (a)(2)(xviii) | Questions and Answers About the Dell Transaction, posted to the Dell Inc. web site on February 14, 2013, incorporated by reference to the Schedule 14A filed with the SEC on February 14, 2013. | |
| (a)(2)(xix) | Communication to Employees, circulated on March 4, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 4, 2013. | |
| (a)(2)(xx) | Note, communicated on March 5, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 5, 2013. | |
| (a)(2)(xxi) | Statement from the Special Committee, issued on March 6, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 6, 2013. | |
| (a)(2)(xxii) | Statement from the Special Committee, issued on March 7, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 7, 2013. | |
| (a)(2)(xxiii) | Note, communicated to Dell employees on March 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 8, 2013. | |
| (a)(2)(xxiv) | Interview given by Michael Dell on March 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 11, 2013. | |
| (a)(2)(xxv) | Letters sent on March 12, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 12, 2013. | |
| (a)(2)(xxvi) | Letter sent on March 15, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 15, 2013. | |
| (a)(2)(xxvii) | Statement from the Special Committee, issued on March 25, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 25, 2013. | |
| (a)(2)(xxviii) | Press release issued by the Special Committee on March 29, 2013, incorporated by reference to the Schedule 14A filed with the SEC on March 29, 2013. | |
| (a)(2)(xxix) | Message to Employees, made available on April 1, 2013, incorporated by reference to the Schedule 14A filed with the SEC on April 1, 2013. | |
| (a)(2)(xxx) | Press release issued by the Special Committee on April 5, 2013, incorporated by reference to the Schedule 14A filed with the SEC on April 5, 2013. | |
| (a)(2)(xxxi) | Press release issued by the Special Committee on April 16, 2013, incorporated by reference to the Schedule 14A filed with the SEC on April 16, 2013. | |
| (a)(2)(xxxii) | Note to Employees, sent on April 19, 2013, incorporated by reference to the Schedule 14A filed with the SEC on April 19, 2013. | |
| (a)(2)(xxxiii) | Press release issued by the Special Committee on April 19, 2013, incorporated by reference to the Schedule 14A filed with the SEC on April 19, 2013. | |
| (a)(2)(xxxiv) | Note to Employees, sent on April 23, 2013, incorporated by reference to the Schedule 14A filed with the SEC on April 23, 2013. | |
| (a)(2)(xxxv) | Press release issued by the Special Committee on May 10, 2013, incorporated by reference to the Schedule 14A filed with the SEC on May 10, 2013. | |
| (a)(2)(xxxvi) | Press release issued by the Special Committee on May 13, 2013, incorporated by reference to the Schedule 14A filed with the SEC on May 13, 2013. | |
| (a)(2)(xxxvii) | Message to Employees, sent on May 13, 2013, incorporated by reference to the Schedule 14A filed with the SEC on May 13, 2013. | |
| (a)(2)(xxxviii) | Press release issued by the Special Committee on May 20, 2013, incorporated by reference to the Schedule 14A filed with the SEC on May 20, 2013. | |
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| (a)(2)(xxxix) | Press release issued by the Special Committee on May 31, 2013, incorporated by reference to the Schedule 14A filed with the SEC on May 31, 2013. | |
| (a)(2)(xl) | Message to Employees, sent on May 31, 2013, incorporated by reference to the Schedule 14A filed with the SEC on May 31, 2013. | |
| (a)(2)(xli) | Special Committee Investor Presentation, incorporated by reference to the Schedule 14A filed with the SEC on June 5, 2013. | |
| (a)(2)(xlii) | Press release issued by the Special Committee on June 5, 2013, incorporated by reference to the Schedule 14A filed with the SEC on June 5, 2013. | |
| (a)(2)(xliii) | Message to Employees, sent on June 5, 2013, incorporated by reference to the Schedule 14A filed with the SEC on June 5, 2013. | |
| (a)(2)(xliv) | Letter to Shareholders from the Special Committee, mailed on June 18, 2013, incorporated by reference to the Schedule 14A filed with the SEC on June 18, 2013. | |
| (a)(2)(xlv) | Press release issued by the Special Committee on June 18, 2013, incorporated by reference to the Schedule 14A filed with the SEC on June 19, 2013. | |
| (a)(2)(xlvi) | Message to Employees, sent on June 19, 2013, incorporated by reference to the Schedule 14A filed with the SEC on June 19, 2013. | |
| (a)(2)(xlvii) | Investor Presentation prepared by Michael S. Dell, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on June 21, 2013. | |
| (a)(2)(xlviii) | Special Committee Investor Presentation, incorporated by reference to the Schedule 14A filed with the SEC on June 24, 2013. | |
| (a)(2)(xlix) | Message to Executive Team Members, sent on July 1, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 1, 2013. | |
| (a)(2)(l) | Press release issued by the Special Committee on July 1, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 1, 2013. | |
| (a)(2)(li) | Supplemental Investor Materials, incorporated by reference to the Schedule 14A filed with the SEC on July 5, 2013. | |
| (a)(2)(lii) | Press release issued by the Special Committee on July 5, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 5, 2013. | |
| (a)(2)(liii) | Press release issued by the Special Committee on July 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 8, 2013. | |
| (a)(2)(liv) | Message to Employees, sent on July 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 8, 2013. | |
| (a)(2)(lv) | Consolidated Special Committee Investor Presentation, incorporated by reference to the Schedule 14A filed with the SEC on July 8, 2013. | |
| (a)(2)(lvi) | Letter to Shareholders from the Special Committee, mailed on July 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 8, 2013. | |
| (a)(2)(lvii) | Press release issued by the Special Committee on July 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 9, 2013. | |
| (a)(2)(lviii) | Letter to Shareholders from the Special Committee, mailed on July 11, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 11, 2013. | |
| (a)(2)(lix) | Press release issued by the Special Committee on July 11, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 12, 2013. | |
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| (a)(2)(lx) | Press release issued by the Special Committee on July 12, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 15, 2013. | |
| (a)(2)(lxi) | Amended and Restated Supplemental Investor Materials, incorporated by reference to the Schedule 14A filed with the SEC on July 15, 2013. | |
| (a)(2)(lxii) | Amended and Restated Special Committee Investor Presentation, incorporated by reference to the Schedule 14A filed with the SEC on July 15, 2013. | |
| (a)(2)(lxiii) | Press release issued by the Special Committee on July 16, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 17, 2013. | |
| (a)(2)(lxiv) | Press release issued by the Special Committee on July 18, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 18, 2013. | |
| (a)(2)(lxv) | Letter to Shareholders from the Special Committee, mailed on July 20, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 22, 2013. | |
| (a)(2)(lxvi) | Message to Employees, sent on July 22, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 22, 2013. | |
| (a)(2)(lxvii) | Press release issued by the Special Committee on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 24, 2013. | |
| (a)(2)(lxviii) | Press release issued by Michael S. Dell and Silver Lake Partners on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on July 24, 2013. | |
| (a)(2)(lxix) | Press release issued by Michael S. Dell and Silver Lake Partners on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Denali Holding Inc. on July 24, 2013. | |
| (a)(2)(lxx) | Press release issued by Michael S. Dell and Silver Lake Partners on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on July 24, 2013. | |
| (a)(2)(lxxi) | Press release issued by Michael S. Dell and Silver Lake Partners on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Denali Holding Inc. on July 24, 2013. | |
| (a)(2)(lxxii) | Message to Employees, sent on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 24, 2013. | |
| (a)(2)(lxxiii) | Letter to Shareholders issued by Michael S. Dell on July 24, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on July 25, 2013. | |
| (a)(2)(lxxiv) | “Michael Dell Addresses Buyout, Southeastern and the Future,” published by The Wall Street Journal on July 28, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on July 29, 2013. | |
| (a)(2)(lxxv) | “Michael Dell Says Bid Is His ‘Best and Final Offer’: Interview,” published by Bloomberg on July 28, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on July 29, 2013. | |
| (a)(2)(lxxvi) | Press release issued by the Special Committee on July 31, 2013, incorporated by reference to the Schedule 14A filed with the SEC on July 31, 2013. | |
| (a)(2)(lxxvii) | Press release issued by the Special Committee on August 2, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 2, 2013. | |
| (a)(2)(lxxviii) | Message to Employees, sent on August 2, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 2, 2013. | |
| (a)(2)(lxxviii) | Communications with Customers and Suppliers, sent on August 2, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 2, 2013. | |
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| (a)(2)(lxxix) | Current Report on Form 8-K, dated August 7, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 7, 2013. | |
| (a)(2)(1xxx) | Message to Employees, sent on August 8, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on August 8, 2013. | |
| (a)(2)(1xxxi) | Message to Customers and Partners, sent on August 11, 2013, incorporated by reference to the Schedule 14A filed with the SEC by Michael S. Dell on August 12, 2013. | |
| (a)(2)(1xxxii) | Q&A, sent on August 13, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 13, 2013. | |
| (a)(2)(lxxxiii) | Letter to Shareholders from the Special Committee, mailed on August 14, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 14, 2013. | |
| (a)(2)(lxxxiv) | Message to Employees, sent on August 16, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 16, 2013. | |
| (a)(2)(lxxxv) | Letter to Shareholders from the Special Committee, mailed on August 26, 2013, incorporated by reference to the Schedule 14A filed with the SEC on August 26, 2013. | |
| (a)(2)(lxxxvi) | Press release issued by the Special Committee on September 3, 2013, incorporated by reference to the Schedule 14A filed with the SEC on September 3, 2013. | |
| (b)(1)†††† | Second Amended and Restated Facilities Commitment Letter, dated May 3, 2013, among Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank PLC, Credit Suisse AG, Credit Suisse Securities (USA) LLC, Royal Bank of Canada, RBC Capital Markets, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Morgan Stanley Senior Funding, Inc., UBS Loan Finance LLC, BNP Paribas and HSBC Bank USA, N.A. and Denali Intermediate Inc. | |
| (b)(2)† | Amended and Restated Securities Purchase Agreement, dated as of March 22, 2013, by and between Denali Holding Inc. and Microsoft Corporation. | |
| (b)(3) | Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, by and among Denali Holding Inc., Michael S. Dell, Susan Lieberman Dell Separate Property Trust, MSDC Management, L.P., Silver Lake Partners III, L.P. and Silver Lake Partners IV, L.P. | |
| (c)(1) | Opinion of J.P. Morgan Securities LLC, dated August 2, 2013 (incorporated herein by reference to Annex B of the Proxy Supplement). | |
| (c)(2) | Opinion of Evercore Group L.L.C., dated August 2, 2013 (incorporated herein by reference to Annex C of the Proxy Statement Supplement). | |
| (c)(3)†††††† | Presentation of The Boston Consulting Group to the Board of Directors of the Company, dated February 4, 2013. | |
| (c)(4)*††††† | Presentation of Evercore Group L.L.C. to the Board of Directors of the Company, dated February 4, 2013. | |
| (c)(5)*††††† | Presentation of J.P. Morgan Securities LLC to the Board of Directors of the Company, dated February 4, 2013. | |
| (c)(6)†††††† | Presentation of The Boston Consulting Group to the Special Committee of the Company, dated February 4, 2013. | |
| (c)(7)*††††† | Presentation of Evercore Group L.L.C. to the Special Committee of the Company, dated February 4, 2013. | |
| (c)(8)*††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated February 4, 2013. | |
| (c)(9)*†††††† | Presentation of The Boston Consulting Group to the Board of Directors of the Company, dated January 18, 2013. | |
| (c)(10)*††††† | Presentation of Evercore Group L.L.C. to the Board of Directors of the Company, dated January 18, 2013. | |
| (c)(11)*††††† | Presentation of J.P. Morgan Securities LLC to the Board of Directors of the Company, dated January 18, 2013. | |
| (c)(12)*†††††† | Presentation of The Boston Consulting Group to the Special Committee of the Company, dated January 15, 2013. | |
| (c)(13)*††††† | Presentation of Evercore Group L.L.C. to the Special Committee of the Company, dated January 15, 2013. | |
| (c)(14)*††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated January 15, 2013. | |
| (c)(15)*†††††† | Presentation of The Boston Consulting Group to the Special Committee of the Company, dated January 2, 2013. | |
| (c)(16)††††† | Discussion Materials of J.P. Morgan Securities LLC to the Special Committee of the Company, dated December 22, 2012. | |
6
| (c)(17)†††††† | Presentation of The Boston Consulting Group to the Board of Directors of the Company, dated December 6, 2013. | |
| (c)(18)††††† | Discussion Materials of J.P. Morgan Securities LLC to the Board of Directors of the Company, dated December 6, 2012. | |
| (c)(19)†††††† | Presentation of The Boston Consulting Group to the Special Committee of the Company, dated December 5, 2013. | |
| (c)(20)††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated December 5, 2012. | |
| (c)(21)*††††† | Discussion Materials of J.P. Morgan Securities LLC to the Special Committee of the Company, dated October 27, 2012. | |
| (c)(22)*††††† | Discussion Materials of J.P. Morgan Securities LLC to the Special Committee of the Company, dated October 18, 2012. | |
| (c)(23)†††††† | Discussion Materials of Goldman, Sachs & Co. to the Board of Directors of the Company, dated October 18, 2012. | |
| (c)(24)†††††† | Discussion Materials of Goldman, Sachs & Co. to the Special Committee of the Company, dated October 10, 2012. | |
| (c)(25)*††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated October 9, 2012. | |
| (c)(26)††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated October 1, 2012. | |
| (c)(27)*††††† | Discussion Materials of J.P. Morgan Securities LLC to the Special Committee of the Company, dated September 23, 2012. | |
| (c)(28)††††† | Perspectives on Denali of J.P. Morgan Securities LLC to the Special Committee of the Company, dated September 21, 2012. | |
| (c)(29)††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated September 14, 2012. | |
| (c)(30)††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated November 16, 2012. | |
| (c)(31)††††††† | Presentation of J.P. Morgan Securities LLC to the Special Committee of the Company, dated August 2, 2013. | |
| (c)(32)††††††† | Presentation of J.P. Morgan Securities LLC to the Board of Directors of the Company, dated August 2, 2013. | |
| (c)(33)††††††† | Presentation of Evercore Group L.L.C. to the Special Committee of the Company, dated August 2, 2013. | |
| (c)(34)††††††† | Presentation of Evercore Group L.L.C. to the Board of Directors of the Company, dated August 2, 2013. | |
| (d)(1) | Agreement and Plan of Merger, dated as of February 5, 2013, by and among Denali Holding Inc., Denali Intermediate Inc., Denali Acquiror Inc. and Dell Inc. (incorporated herein by reference to Annex A of the Definitive Proxy Statement). | |
7
| (d)(1)(i)††††††† | Amendment No. 1 to Agreement and Plan of Merger, dated as of August 2, 2013, by and among Denali Holding Inc., Denali Intermediate Inc., Denali Acquiror Inc. and Dell Inc. (incorporated herein by reference to Annex A of the Proxy Statement Supplement). | |
| (d)(2) | Voting and Support Agreement, dated as of February 5, 2013, by and among the stockholders listed on the signature pages thereto and Dell Inc., incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K/A filed with the SEC on February 15, 2013. | |
| (d)(3)† | Rollover and Equity Financing Commitment Letter, dated February 5, 2013, among Michael S. Dell, Susan Lieberman Dell Separate Property Trust and Denali Holding Inc. | |
| (d)(3)(i)††††††† | Amendment No. 1 to Rollover and Equity Financing Commitment Letter, dated as of August 2, 2013, among Michael S. Dell, Susan Lieberman Dell Separate Property Trust and Denali Holding Inc. | |
| (d)(3)(ii) | Amendment No. 2 to Rollover and Equity Financing Commitment Letter, dated as of September 23, 2013, among Michael S. Dell, Susan Lieberman Dell Separate Property Trust and Denali Holding Inc. | |
| (d)(4)† | Equity Financing Commitment Letter, dated February 5, 2013, between MSDC Management, L.P. and Denali Holding Inc. | |
| (d)(4)(i)††††††† | Amendment No. 1 Equity Financing Commitment Letter, dated as of August 2, 2013, between MSDC Management, L.P. and Denali Holding Inc. | |
| (d)(4)(ii) | Amendment No. 2 to Equity Financing Commitment Letter, dated as of September 23, 2013, between MSDC Management, L.P. and Denali Holding Inc. | |
| (d)(5)† | Equity Financing Commitment Letter, dated February 5, 2013, among Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P. and Denali Holding Inc. | |
| (d)(5)(i)††††††† | Amendment No. 1 to Equity Financing Commitment Letter, dated as of August 2, 2013, among Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P. and Denali Holding Inc. | |
| (d)(5)(ii) | Amendment No. 2 to Equity Financing Commitment Letter, dated as of September 23, 2013, among Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P. and Denali Holding Inc. | |
| (d)(6)† | Limited Guarantee, dated as of February 5, 2013, between Michael S. Dell and Dell Inc. in favor of Dell Inc. | |
| (d)(7)† | Limited Guarantee, dated as of February 5, 2013, between Silver Lake Partners III, L.P. and Dell Inc. in favor of Dell Inc. | |
| (d)(8)† | Limited Guarantee, dated as of February 5, 2013, between Silver Lake Partners IV, L.P. and Dell Inc. in favor of Dell Inc. | |
| (d)(9)† | Interim Investors Agreement, dated as of February 5, 2013, by and among Denali Holding Inc., Michael S. Dell, Susan Lieberman Dell Separate Property Trust, MSDC Management, L.P., Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P., Silver Lake Technology Investors III, L.P., and, for purposes of Sections 2.7.2, 2.12.2, 2.12.6, 2.20 and Article III only, Michael S. Dell 2009 Gift Trust and Susan L. Dell 2009 Gift Trust. | |
| (d)(9)(i)††††††† | Amendment No. 1 to Interim Investors Agreement, dated as of August 2, 2013, by and among Denali Holding Inc., Michael S. Dell, Susan Lieberman Dell Separate Property Trust, MSDC Management, L.P., Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P., Silver Lake Technology Investors III, L.P., and, for purposes of Sections 2.7.2, 2.12.2, 2.12.6, 2.20 and Article III only, Michael S. Dell 2009 Gift Trust and Susan L. Dell 2009 Gift Trust. | |
| (d)(9)(ii) | Amendment No. 2 to Interim Investors Agreement, dated as September 23, 2013, by and among Denali Holding Inc., Michael S. Dell, Susan Lieberman Dell Separate Property Trust, MSDC Management, L.P., Silver Lake Partners III, L.P., Silver Lake Partners IV, L.P., Silver Lake Technology Investors III, L.P., and, for purposes of Sections 2.7.2, 2.12.2, 2.12.6, 2.20 and Article III only, Michael S. Dell 2009 Gift Trust and Susan L. Dell 2009 Gift Trust. | |
| (d)(10)† | Form of Employment Agreement to be entered into by and among Dell, Inc., Denali Holding Inc. and Michael S. Dell. | |
| (f)(1) | Section 262 of the Delaware General Corporation Law (incorporated herein by reference to Annex D of the Definitive Proxy Statement). | |
| * | Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. |
| † | Previously filed by this Transaction Statement on March 29, 2013. |
| †† | Previously filed by Amendment No. 1 to this Transaction Statement on March 29, 2013. |
| ††† | Previously filed by Amendment No. 2 to this Transaction Statement on May 2, 2013. |
| †††† | Previously filed by Amendment No. 3 to this Transaction Statement on May 10, 2013. |
| ††††† | Previously filed by Amendment No. 5 to this Transaction Statement on May 20, 2013. |
| †††††† | Previously filed by Amendment No. 6 to this Transaction Statement on May 31, 2013. |
| ††††††† | Previously filed by Amendment No. 8 to this Transaction Statement on August 14, 2013. |
8
SIGNATURE
After due inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated as of September 27, 2013
| DELL INC. | ||||
| By: | /s/ Brian T. Gladden | |||
| Name: | Brian T. Gladden | |||
| Title: | Senior Vice President, Chief Financial Officer | |||
| DENALI HOLDING INC. | ||||
| By: | /s/ Karen King | |||
| Name: | Karen King | |||
| Title: | Vice President | |||
| DENALI INTERMEDIATE INC. | ||||
| By: | /s/ Karen King | |||
| Name: | Karen King | |||
| Title: | Vice President | |||
| DENALI ACQUIROR INC. | ||||
| By: | /s/ Karen King | |||
| Name: | Karen King | |||
| Title: | Vice President | |||
| SILVER LAKE PARTNERS III, L.P. | ||
| By: | Silver Lake Technology Associates III, L.P., its general partner | |
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |||
| Name: | James Davidson | |||
| Title: | Managing Director | |||
9
| SILVER LAKE TECHNOLOGY ASSOCIATES III, L.P. | ||
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director |
| SLTA III (GP), L.L.C. | ||
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director |
| SILVER LAKE GROUP, L.L.C. | ||
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director | ||
| SILVER LAKE PARTNERS IV, L.P. | ||
| By: | Silver Lake Technology Associates IV, L.P., its general partner | |
| By: | SLTA IV (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director |
| SILVER LAKE TECHNOLOGY ASSOCIATES IV, L.P. | ||
| By: | SLTA IV (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director |
10
| SLTA IV (GP), L.L.C. | ||
| By: |
Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director |
| SILVER LAKE TECHNOLOGY INVESTORS III, L.P. | ||
| By: | Silver Lake Technology Associates III, L.P., its general partner | |
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director |
| MICHAEL S. DELL | ||
| By: | /s/ Michael S. Dell | |
| Name: Michael S. Dell | ||
| SUSAN LIEBERMAN DELL SEPARATE PROPERTY TRUST | ||
| By: | /s/ Susan L. Dell | |
| Name: Susan L. Dell | ||
| Title: Trustee | ||
| MSDC MANAGEMENT, L.P. | ||
| By: | /s/ Marc R. Lisker | |
| Name: Marc R. Lisker | ||
| Title: Managing Director | ||
| MSDC MANAGEMENT (GP), LLC | ||
| By: | /s/ Marc R. Lisker | |
| Name: Marc R. Lisker | ||
| Title: Managing Director | ||
11
Exhibit (b)(3)
Execution Copy
Denali Holding Inc.
c/o Silver Lake Partners
2775 Sand Hill Road, Suite 100
Menlo Park, CA 94025
September 23, 2013
| Michael S. Dell Susan Lieberman Dell Separate Property Trust c/o Dell Inc. One Dell Way Round Rock, TX 78682 |
Silver Lake Partners III, L.P. Silver Lake Partners IV, L.P. 2775 Sand Hill Road Suite 100 Menlo Park, CA 94025 | |
| MSDC Management, L.P. 645 Fifth Avenue 21st Floor New York, NY 10022-5910 |
||
| Re: | Funding of First Lien Notes into Escrow |
Ladies and Gentlemen:
Reference is hereby made to (i) the Interim Investors Agreement, dated as of February 5, 2013, as amended on August 2, 2013 (as amended, restated, modified or supplemented from time to time, and together with all exhibits, annexes and schedules thereto, the “Interim Investors Agreement”), by and among Denali Holding Inc. (“Parent”), Michael S. Dell (“MD”) and Susan Lieberman Dell Separate Property Trust (together with MD, the “MD Investors”), MSDC Management, L.P. (together with its affiliated investment funds, “MSDC Investor”), Silver Lake Partners III, L.P. (“SLP III”), Silver Lake Partners IV, L.P. (“SLP IV”, and together with SLP III, the “Equity Investors”, and together with SLP III, the MD Investors and the MSDC Investor, the “Investors”) and Silver Lake Technology Investors III, L.P. and, for purposes of Sections 2.7.2, 2.12.2, 2.12.6, 2.20 and Article III therein only, Michael S. Dell 2009 Gift Trust, created on May 3, 2009 pursuant to the exercise of a power of appointment by Susan L. Dell over the MSD 1997 Gift Trust and naming Susan L. Dell as trustee thereof, and Susan L. Dell 2009 Gift Trust, created on May 4, 2009 pursuant to the exercise of a power of appointment by Steven A. Lieberman over the SLD 1997 Gift Trust and naming Steven A. Lieberman as trustee thereof, (ii) the Rollover and Equity Financing Commitment Letter, dated as of February 5, 2013, as amended on August 2, 2013, by and between Parent and the MD Investors, (as amended, restated, modified or supplemented from time to time, the “MD Investors Commitment Letter”), (iii) the Equity Financing Commitment Letter, dated as of February 5, 2013, as amended on August 2, 2103, by and between Parent and the MSDC Investor (as amended, restated, modified or supplemented from time to time, the “MSDC Investor Commitment Letter”), (iv) the Equity Financing Commitment Letter, dated as of February 5, 2013, as amended on August 2, 2013, by and between Parent and the SLP Investors (as amended, restated, modified or supplemented from time to time, the “Equity Investors Commitment Letter”, and together with the MD Rollover and Equity Financing Commitment Letter and the MSDC Equity Financing Commitment Letter, the “Investor Commitment Letters”) and (v) the issuance by Denali Borrower LLC and Denali Finance Corp. (collectively, the “Issuer”) of the $1,500,000,000 Senior First Lien Notes due 2020 (the “First Lien Notes”) pursuant to that certain Confidential Offering Circular dated as of September 23, 2013 (the “Offering Circular”). Capitalized terms used but not otherwise defined herein have the meaning ascribed to such terms in the Interim Investors Agreement.
It is contemplated that if the First Lien Notes are issued on a date prior to the date that the Merger is consummated, the Issuer will enter into two escrow agreements with The Bank of New York Mellon Trust Company, N.A., as trustee, and The Bank of New York Mellon Trust Company, N.A., as escrow agent (together, the “Escrow Agreement”) pursuant to which the Issuer will be required to deposit (x) the gross proceeds from the offering of the First Lien Notes and (y) the amount sufficient to pay all regularly scheduled interest that would accrue on the First Lien Notes to, but not including, November 8, 2013 into one or more escrow accounts (collectively, the “Escrow Account”), until the date that the conditions to release of the property in the Escrow Account are satisfied or the First Lien Notes are otherwise required to be redeemed pursuant to the terms of the indentures governing the First Lien Notes (the amount in this clause (y), the “Interest Amount”). In furtherance of facilitating the issuance of the First Lien Notes on a date prior to the date that the Merger is consummated, each of Parent, the MD Investors, the MSDC Investor and the SLP Investors agrees as follows:
(i) on the date that the issuance of the First Lien Notes is consummated, or such earlier date as may be required by the Issuer and/or pursuant to the Escrow Agreement, each of the MD Investors, the MSDC Investor and the SLP Investors shall fund an amount of cash to Parent (or its designee), in consideration for purchasing an amount of Subject Equity Securities (as defined in its respective Investor Commitment Letter) as contemplated under its respective Investor Commitment Letter, on the terms therein (other than any conditions therein), equal to its Funding Percentage of the Interest Amount, which Funding Percentage is set forth on Annex A hereto (with respect to each such Investor, the amount funded by such Investor pursuant to the terms of this letter agreement, such Investor’s “Pre-Closing Funded Amount”);
(ii) all such Pre-Closing Funded Amounts shall be contributed by or on behalf of the Issuer to the Escrow Account to satisfy the Interest Amount required to be deposited in the Escrow Account by the Issuers;
(iii) the Investors shall receive their respective Subject Securities in respect of their Pre-Closing Funding Amount on the date that the Closing occurs;
(iv) if the First Lien Notes are redeemed pursuant to the terms of the indentures governing the First Lien Notes without the Closing having occurred and any remaining amounts in the Escrow Account are released from the Escrow Account to, or are otherwise paid to, Parent, the Issuer and/or their respective Affiliates, Parent shall, and shall cause the Issuer or the applicable Affiliate that has received such amounts to, promptly reimburse and repay the MD Investors, the MSDC Investor and the SLP Investors, each such Investors’ Funding Percentage (as set forth on Annex A) of such amounts; and
(v) each Investor’s respective Investor Commitment Letter shall be amended to provide that such Investor’s respective Pre-Closing Funded Amount previously funded by or on behalf of such Investor to Parent (or its designee) pursuant to the terms of this letter agreement shall be, on a dollar-for-dollar basis, credited against and shall be deemed to be partial satisfaction of, such Investor’s aggregate cash commitment thereunder.
This letter agreement and all claims or causes of action (whether in tort, contract or otherwise) that may be based upon, arise out of or relate to this letter agreement or the negotiation, execution or performance of this letter agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this letter agreement) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware
or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this letter agreement or any of the transactions contemplated by this letter agreement in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this letter agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this paragraph, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper or (z) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties hereto agrees that service of process upon such party in any such action or proceeding shall be effective if such process is given as a notice in accordance with Section 8.7 of the Merger Agreement.
EACH OF THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY DIRECT OR INDIRECT ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) MAKES THIS WAIVER VOLUNTARILY AND (C) ACKNOWLEDGES THAT EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS PARAGRAPH.
This letter agreement may be executed in two or more consecutive counterparts (including by facsimile, of “.pdf” transmission), each of which shall be deemed to be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (electronically or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| DENALI HOLDING INC. | ||||
| By: | /s/ Egon Durban | |||
| Name: | Egon Durban | |||
| Title: | President | |||
[Letter Agreement Signature Page]
| MICHAEL S. DELL | ||||
| /s/ Michael S. Dell | ||||
| SUSAN LIEBERMAN DELL SEPARATE PROPERTY TRUST | ||||
| By: | /s/ Susan L. Dell | |||
| Name: | Susan L. Dell | |||
| Title: | Trustee | |||
| MSDC MANAGEMENT, L.P. | ||||
| By: | /s/ Marc R. Lisker | |||
| Name: | Marc R. Lisker | |||
| Title: | Managing Director | |||
| SILVER LAKE PARTNERS III, L.P. | ||
| By: | Silver Lake Technology Associates III, L.P., its general partner | |
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director | ||
| SILVER LAKE PARTNERS IV, L.P. | ||
| By: | Silver Lake Technology Associates IV, L.P., its general partner | |
| By: | SLTA IV (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director | ||
Exhibit (d)(3)(ii)
Execution Copy
AMENDMENT NO 2
TO THE
ROLLOVER AND EQUITY FINANCING COMMITMENT LETTER
THIS AMENDMENT NO. 2 TO THE ROLLOVER AND EQUITY FINANCING COMMITMENT LETTER, dated as of September 23, 2013 (this “Amendment”), is entered into by and among Denali Holding Inc., a Delaware corporation (“Parent”), Michael S. Dell and the Susan Lieberman Dell Separate Property Trust (collectively, the “MD Investors”). Capitalized terms used but not defined elsewhere in this Agreement shall have the meanings ascribed to them in the Rollover and Equity Financing Commitment Letter, dated as of February 5, 2013, as amended on August 2, 2013, by and between Parent and the MD Investors (the “Rollover and Equity Financing Commitment Letter”).
RECITALS
WHEREAS, the parties desire to amend the Rollover and Equity Financing Commitment Letter so as to permit the funding of a portion of the MD Investors’ Cash Commitment prior to the consummation of the merger;
WHEREAS, the parties further desire to amend the Rollover and Equity Financing Commitment Letter to increase the amount of the MD Investors’ Cash Commitment so as to permit a pro rata reduction of the Debt Financing Commitments (as defined in the Merger Agreement);
WHEREAS, consistent with the terms of the Interim Investors Agreement, dated as of February 5, 2013, as amended on August 2, 2013, by and among the MD Investors, the Equity Investors (as defined therein), the MSDC Investor (as defined therein), and with respect to certain matters, the Michael S. Dell 2009 Gift Trust and the Susan L. Dell 2009 Gift Trust, Mr. Dell and the Equity Investors have given the necessary approvals to cause Parent to enter into this Amendment;
WHEREAS, Parent has entered into that certain Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, between and among Parent, the MD Investors, the MSDC Investor, Silver Lake Partners III, L.P. and Silver Lake Partners IV, L.P.; and
WHEREAS, the parties have agreed to amend the Rollover and Equity Financing Commitment Letter as provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Parent Parties agree as follows:
1. Amendment of Section 2. The following language is hereby added at the end of Section 2:
“Notwithstanding anything herein to the contrary, (X) the Cash Commitment may be satisfied in cash or by the transfer or contribution, directly or indirectly, of Shares by any co-investor or equity investor of the MD Investors in compliance with Section 5.13 of the Merger Agreement to Parent or its Subsidiaries prior to the Closing, in which case, the portion of the Cash Commitment so satisfied by the transfer or contribution of Shares shall be calculated as the product of (x) the number of Shares transferred or contributed, directly or indirectly, to Parent or its Subsidiaries prior to the Closing and (y) $13.75 and (Y) the MD Investors’ Pre-Closing Funded Amount (as defined in the Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, between and among Parent, the MD Investors, the MSDC Investor and the Equity Investors (the “Letter Agreement”)) previously funded by the MD Investors to Parent (or its designee) pursuant to, and in accordance with, the Letter Agreement shall be, on a dollar-for-dollar basis, credited against, and shall be deemed partial satisfaction of, the Cash Commitment hereunder.”
2. Increase of Cash Commitment if Debt Financing Commitments Reduced. Notwithstanding anything in the Rollover and Equity Financing Commitment Letter, including Schedule A, to the contrary, the $500,000,000.00 Cash Commitment shall be increased on a dollar-for-dollar basis by an amount equal to the MD Investors’ aggregate Funding Percentage of the aggregate reduction of the amount of the Debt Financing Commitments prior to the Closing, which Funding Percentage is set forth on Annex A to the Letter Agreement, if and to the extent that there is a reduction of the aggregate amount of the Debt Financing Commitments prior to the Closing (which aggregate reduction shall not exceed $150,000,000.00 in the aggregate); provided, that the aggregate increase of the Cash Commitment shall not exceed the MD Investors’ aggregate Funding Percentage multiplied by $150,000,000.00.
3. No Further Amendment. Except as amended hereby, the Rollover and Equity Financing Commitment Letter shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| MD INVESTORS: | ||
| By: | /s/ Michael S. Dell | |
| Name: Michael S. Dell | ||
| SUSAN LIEBERMAN DELL SEPARATE PROPERTY TRUST | ||
| By: | /s/ Susan L. Dell | |
| Name: Susan L. Dell | ||
| Title: Trustee | ||
[Signature Page to Amended Rollover and Equity Financing Commitment Letter]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| PARENT: | ||
| DENALI HOLDING INC. | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: President | ||
[Signature Page to Amended Rollover and Equity Financing Commitment Letter]
Exhibit (d)(4)(ii)
Execution Copy
AMENDMENT NO 2
TO THE
EQUITY FINANCING COMMITMENT LETTER
THIS AMENDMENT NO. 2 TO THE EQUITY FINANCING COMMITMENT LETTER, dated as of September 23, 2013 (this “Amendment”), is entered into by and among Denali Holding Inc., a Delaware corporation (“Parent”) and MSDC Management L.P., a Delaware limited partnership (together with its affiliated investment funds, the “MSDC Investor”). Capitalized terms used but not defined elsewhere in this Agreement shall have the meanings ascribed to them in the Equity Financing Commitment Letter, dated as of February 5, 2013, as amended on August 2, 2013, by and between Parent and the MSDC Investor (the “Equity Financing Commitment Letter”).
RECITALS
WHEREAS, the parties desire to amend the Equity Financing Commitment Letter so as to permit the funding of a portion of the MSDC Investor’s MSDC Commitment prior to the consummation of the merger;
WHEREAS, the parties further desire to amend the Equity Financing Commitment Letter to increase the amount of the MSDC Investor’s MSDC Commitment so as to permit a pro rata reduction of the Debt Financing Commitments (as defined in the Merger Agreement);
WHEREAS, consistent with the terms of the Interim Investors Agreement, dated as of February 5, 2013, as amended on August 2, 2013, by and among the MD Investors (as defined therein), the Equity Investors (as defined therein), the MSDC Investor, and with respect to certain matters, the Michael S. Dell 2009 Gift Trust and the Susan L. Dell 2009 Gift Trust, Mr. Dell and the Equity Investors have given the necessary approvals to cause Parent to enter into this Amendment;
WHEREAS, Parent has entered into that certain Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, between and among Parent, the MD Investors, the MSDC Investor, Silver Lake Partners III, L.P. and Silver Lake Partners IV, L.P.; and
WHEREAS, the parties have agreed to amend the Equity Financing Commitment Letter as provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Parent Parties agree as follows:
1. Amendment of Section 1. The following language is hereby added at the end of Section 1:
“Notwithstanding anything herein to the contrary, (X) the MSDC Commitment may be satisfied in cash or by the transfer or contribution, directly or indirectly, of Shares by any co-investor or equity investor of the MSDC Investor in compliance with Section 5.13 of the Merger Agreement to Parent or its Subsidiaries prior to the Closing, in which case, the portion of the MSDC Commitment so satisfied by the transfer or contribution of Shares shall be calculated as the product of (x) the number of Shares transferred or contributed, directly or indirectly, to Parent or its Subsidiaries prior to the Closing and (y) $13.75 and (Y) the MSDC Investor’s Pre-Closing Funded Amount (as defined in the Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, between and among Parent, the MD Investors, the MSDC Investor and the Equity Investors (the “Letter Agreement”)) previously funded by the MSDC Investor to Parent (or its designee) pursuant to, and in accordance with, the Letter Agreement shall be, on a dollar-for-dollar basis, credited against, and shall be deemed partial satisfaction of, the MSDC Commitment hereunder.”
2. Increase of MSDC Commitment if Debt Financing Commitments Reduced. Notwithstanding anything in the Equity Financing Commitment Letter, including Schedule A, to the contrary, the $250,000,000.00 MSDC Commitment shall be increased on a dollar-for-dollar basis by an amount equal to the MSDC Investor’s aggregate Funding Percentage of the aggregate reduction of the amount of the Debt Financing Commitments prior to the Closing, which Funding Percentage is set forth on Annex A to the Letter Agreement, if and to the extent that there is a reduction of the aggregate amount of the Debt Financing Commitments prior to the Closing (which aggregate reduction shall not exceed $150,000,000.00 in the aggregate); provided, that the aggregate increase of the MSDC Commitment shall not exceed the MSDC Investor’s aggregate Funding Percentage multiplied by $150,000,000.00.
3. No Further Amendment. Except as amended hereby, the Equity Financing Commitment Letter shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| MSDC INVESTOR: | ||
| MSDC MANAGEMENT, L.P. | ||
| By: | /s/ Marc R. Lisker | |
| Name: Marc R. Lisker | ||
| Title: Managing Director | ||
[Signature Page to Amended Equity Financing Commitment Letter (MSDC)]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| PARENT: | ||
| DENALI HOLDING INC. | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: President | ||
[Signature Page to Amended Equity Financing Commitment Letter (MSDC)]
Exhibit (d)(5)(ii)
Execution Copy
AMENDMENT NO 2
TO THE
EQUITY FINANCING COMMITMENT LETTER
THIS AMENDMENT NO. 2 TO THE EQUITY FINANCING COMMITMENT LETTER, dated as of September 23, 2013 (this “Amendment”), is entered into by and among Denali Holding Inc., a Delaware corporation (“Parent”), Silver Lake Partners III, L.P., a Delaware limited partnership, and Silver Lake Partners IV, L.P., a Delaware limited partnership (collectively, the “Equity Investors”). Capitalized terms used but not defined elsewhere in this Agreement shall have the meanings ascribed to them in the Equity Financing Commitment Letter, dated as of February 5, 2013, as amended on August 2, 2013, by and between Parent and the Equity Investors (the “Equity Financing Commitment Letter”).
RECITALS
WHEREAS, the parties desire to amend the Equity Financing Commitment Letter so as to permit the funding of a portion of the Equity Investors’ Equity Investor Commitment prior to the consummation of the merger;
WHEREAS, the parties further desire to amend the Equity Financing Commitment Letter to increase the amount of the Equity Investors’ Equity Investor Commitment so as to permit a pro rata reduction of the Debt Financing Commitments (as defined in the Merger Agreement);
WHEREAS, consistent with the terms of the Interim Investors Agreement, dated as of February 5, 2013, as amended on August 2, 2013, by and among the MD Investors (as defined therein), the Equity Investors, the MSDC Investor (as defined therein), and with respect to certain matters, the Michael S. Dell 2009 Gift Trust and the Susan L. Dell 2009 Gift Trust, Mr. Dell and the Equity Investors have given the necessary approvals to cause Parent to enter into this Amendment;
WHEREAS, Parent has entered into that certain Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, between and among Parent, the MD Investors, the MSDC Investor and the Equity Investors; and
WHEREAS, the parties have agreed to amend the Equity Financing Commitment Letter as provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Parent Parties agree as follows:
1. Amendment of Section 1. The following language is hereby added at the end of Section 1:
“Notwithstanding anything herein to the contrary, (X) the Equity Investor Commitment may be satisfied in cash or by the transfer or contribution, directly
or indirectly, of Shares by any co-investor or equity investor of the Equity Investors in compliance with Section 5.13 of the Merger Agreement to Parent or its Subsidiaries prior to the Closing, in which case, the portion of the Equity Investor Commitment so satisfied by the transfer or contribution of Shares shall be calculated as the product of (x) the number of Shares transferred or contributed, directly or indirectly, to Parent or its Subsidiaries prior to the Closing and (y) $13.75 and (Y) the Equity Investors’ Pre-Closing Funded Amount (as defined in the Letter Agreement regarding the Funding of First Lien Notes into Escrow, dated as of September 23, 2013, between and among Parent, the MD Investors, the MSDC Investor and the Equity Investors (the “Letter Agreement”)) previously funded by the Equity Investors to Parent (or its designee) pursuant to, and in accordance with, the Letter Agreement shall be, on a dollar-for-dollar basis, credited against, and shall be deemed partial satisfaction of, the Equity Investor Commitment hereunder.”
2. Increase of Equity Investor Commitment if Debt Financing Commitments Reduced. Notwithstanding anything in the Equity Financing Commitment Letter, including Schedule A, to the contrary, each of the Equity Investor’s respective Equity Investor Commitment shall be increased on a dollar-for-dollar basis by an amount equal to such Equity Investor’s Funding Percentage of the aggregate reduction of the amount of the Debt Financing Commitments prior to the Closing, which Funding Percentage is set forth on Annex A to the Letter Agreement, if and to the extent that there is a reduction of the aggregate amount of the Debt Financing Commitments prior to the Closing (which aggregate reduction shall not exceed $150,000,000.00 in the aggregate); provided, that the increase of either Equity Investor’s Equity Investor Commitment shall not exceed such Equity Investor’s Funding Percentage multiplied by $150,000,000.00.
3. No Further Amendment. Except as amended hereby, the Equity Financing Commitment Letter shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| EQUITY INVESTORS: | ||
| SILVER LAKE PARTNERS III, L.P. | ||
| By: | Silver Lake Technology Associates III, L.P., its general partner | |
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |||
| Name: | James Davidson | |||
| Title: | Managing Director | |||
| SILVER LAKE PARTNERS IV, L.P. | ||
| By: | Silver Lake Technology Associates IV, L.P., its general partner | |
| By: | SLTA IV (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |||
| Name: | James Davidson | |||
| Title: | Managing Director | |||
[Signature Page to Amended Equity Financing Commitment Letter (SLP)]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
| PARENT: | ||||
| DENALI HOLDING INC. | ||||
| By: | /s/ Egon Durban | |||
| Name: | Egon Durban | |||
| Title: | President | |||
[Signature Page to Amended Equity Financing Commitment Letter (SLP)]
Exhibit (d)(9)(ii)
Execution Copy
Amendment No. 2 to the Interim Investors Agreement
This AMENDMENT NO. 2, dated as of September 23, 2013 (this “Amendment”), amends that certain INTERIM INVESTORS AGREEMENT, dated as of February 5, 2013, as amended on August 2, 2013, by and among Denali Holding Inc., a Delaware corporation (“Parent”), Michael S. Dell (“MD”) and Susan Lieberman Dell Separate Property Trust (together with MD, the “MD Investors”), MSDC Management, L.P., a Delaware limited partnership (together with its affiliated investment funds, “MSDC Investor”), Silver Lake Partners III, L.P., a Delaware limited partnership (“SLP III”), Silver Lake Partners IV, L.P., a Delaware limited partnership (“SLP IV”) and Silver Lake Technology Investors III, L.P., a Delaware limited partnership (“SLTI III”, and together with SLP III and SLP IV, the “Equity Investors”, and together with the SLP III, SLP IV, the MD Investors and the MSDC Investor, the “Investors”) and, for purposes of Sections 2.7.2, 2.12.2, 2.12.6, 2.20 and Article III therein only, Michael S. Dell 2009 Gift Trust, created on May 3, 2009 pursuant to the exercise of a power of appointment by Susan L. Dell over the MSD 1997 Gift Trust and naming Susan L. Dell as trustee thereof, and Susan L. Dell 2009 Gift Trust, created on May 4, 2009 pursuant to the exercise of a power of appointment by Steven A. Lieberman over the SLD 1997 Gift Trust and naming Steven A. Lieberman as trustee thereof (together, the “Gift Trusts”) (as amended hereby, the “Interim Investors Agreement”), and is by and between MD and the Equity Investors.
RECITALS
WHEREAS, Parent is, on the date hereof, entering into that certain Letter Agreement regarding the Funding of First Lien Notes into Escrow (the “Letter Agreement”), between and among Parent, the MD Investors, the MSDC Investor, SLP III and SLP IV;
WHEREAS, in connection with entering into the Letter Agreement, the parties hereto wish to amend the Interim Investors Agreement as set forth herein; and
WHEREAS, Section 3.2 of the Interim Investors Agreement states that the Interim Investors Agreement may be amended or modified only by an agreement in writing signed by MD and the Equity Investors.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
| 1. | Exhibit B-1. Exhibit B-1 of the Interim Investors Agreement is hereby amended by Exhibit B-1 hereto. |
| 2. | Exhibit B-2. Exhibit B-2 of the Interim Investors Agreement is hereby amended by Exhibit B-2 hereto. |
| 3. | Exhibit B-3. Exhibit B-3 of the Interim Investors Agreement is hereby amended by Exhibit B-3 hereto. |
| 4. | Investor Authority Relative to Amendment. Each Investor party hereto hereby represents and warrants to the other Investors and to the Gift Trusts that the execution, delivery and performance of this Amendment and the Investor Commitment Letter to which it is a party, has been duly and validly authorized and approved by all necessary organizational, corporate, limited liability company, partnership, trust or other similar action, and no other proceedings or actions on the part of such Investor are or will be necessary therefor. |
| 5. | References to the Agreement. After giving effect to this Amendment, each reference in the Interim Investors Agreement to “this Agreement”, “hereof”, “hereunder” or words of like import referring to the Interim Investors Agreement shall refer to the Interim Investors Agreement as amended by this Amendment. |
| 6. | Construction. Except as expressly provided in this Amendment, all references in the Interim Investors Agreement to “the date hereof” or “the date of this Agreement” shall refer to February 5, 2013. |
| 7. | Other Miscellaneous Terms. The provisions of Article III (Miscellaneous) of the Interim Investors Agreement shall apply mutatis mutandis to this Amendment, and to the Interim Investors Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby. |
| 8. | No Further Amendment. Except as amended hereby, the Interim Investors Agreement shall remain in full force and effect. |
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement (or caused this Agreement to be executed on its behalf by its officer or representative thereunto duly authorized) as of the date first above written.
| MICHAEL S. DELL |
| /s/ Michael S. Dell |
| EQUITY INVESTORS | ||
| SILVER LAKE PARTNERS III, L.P. | ||
| By: | Silver Lake Technology Associates III, L.P., its general partner | |
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director | ||
| SILVER LAKE PARTNERS IV, L.P. | ||
| By: | Silver Lake Technology Associates IV, L.P., its general partner | |
| By: | SLTA IV (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director | ||
| SILVER LAKE TECHNOLOGY INVESTORS III, L.P. | ||
| By: | Silver Lake Technology Associates III, L.P., its general partner | |
| By: | SLTA III (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ James Davidson | |
| Name: James Davidson | ||
| Title: Managing Director | ||