Investor Carl Icahn sued Dell Thursday to prevent the board from further delaying a buyout vote scheduled for Friday at 9 a.m. CST.
The lawsuit, filed in a Delaware Court of Chancery, comes a day after Dell's board said it would agree to move the vote if Dell CEO Michael Dell and investment partner Silver Lake would up its buyout bid from $13.65 to $13.75.
In his complaint, Icahn seeks, among other things, to both stop a change in the record date -- the date shareholders must have owned shares to be eligible to vote -- and force Dell to hold the annual meeting and the shareholder vote on the same day. That would allow Icahn to call for a vote on his $14-a-share recapitalization proposal that includes replacing the Dell board.
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Reports Thursday indicated Michael Dell was going to accept a proposal by the Dell special committee that would of postponed the buyout vote for a third time. If Michael Dell and Silver Lake accepted the board's deal, the shareholder vote would have been pushed to mid-September.
Delaying the vote and changing the record date would give Michael Dell and Silver Lake an advantage in a close shareholder vote, allowing them to sway undecided voters to favor for their privatization bid. Moving the record date would also allow more investors who recently bought shares of Dell to vote in the shareholders election. The record date is currently June 3, 2013. Icahn sued Thursday to make February 5, 2013, the record date. Dell's board said if Michael Dell agrees to revise his takeover bid to $13.75, it would change the record date to August 10.
A recent tally of votes puts the number of supporters of Michael Dell's buyout bid at 579 million votes compared to 563 million against.
Icahn blasted Dell's board in his complaint, alleging directors put Michael Dell's interests above the shareholders by offering to put off the vote in exchange for raising its buyout offer by a dime to $13.75. Icahn wrote in his complaint that the Dell board "is loyal not to the stockholders but to Mr. Dell and is willing to change the rules to help Mr. Dell force his merger through as cheaply as possible."
Round Rock, Texas-based Dell declined comment on the lawsuit, but released the following statement: "The Dell board of directors has at all times sought to maximize value for, and acted in accordance with its fiduciary duties to, Dell stockholders and will continue to do so. Beyond that, we have no further comment on pending litigation."
PUBLISHED AUGUST 1, 2013