DELL TECHNOLOGIES INC.

(DELL)
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Delayed Nyse  -  04:00 2022-08-08 pm EDT
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DELL TECHNOLOGIES INC. : Material Modification to Rights of Security Holders, Amendments to Articles of Inc. or Bylaws; Change in Fiscal Year, Submission of Matters to a Vote of Security Holders, Other Events, Financial Statements and Exhibits (form 8-K)

06/29/2022 | 04:17pm EDT

Item 3.03 Material Modification to Rights of Security Holders.

(a) The information set forth under Item 5.03 and Item 8.01 of this report is incorporated by reference in this Item 3.03.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On June 29, 2022, the Third Amended and Restated Bylaws of Dell Technologies Inc. (the "Amended Bylaws") became effective as of the effectiveness on the same date of the Sixth Amended and Restated Certificate of Incorporation of Dell Technologies Inc. (the "Sixth Amended and Restated Certificate"), as described under Item 8.01 of this report. The Amended Bylaws amended and restated the Second Amended and Restated Bylaws of Dell Technologies Inc. (the "prior bylaws"), which had been in effect as the bylaws of Dell Technologies Inc. (the "Company") since December 28, 2018.

The Amended Bylaws effected the following amendments (the "Bylaw Amendments") to the prior bylaws:

•Section 2.03 of the prior bylaws, which set forth the notice and information to be delivered to the Company and other procedures to be followed by a stockholder wishing to nominate persons for election to the Board of Directors or to propose other business at a meeting of stockholders, was amended to provide for the following, among other amendments:

•the number of nominees that may be nominated for election to the Board of Directors at a meeting of stockholders shall not exceed the number of directors to be elected at the meeting;

•the stockholder's notice shall include information about, among other additional matters: (i) any shares of any class or series of the Company's capital stock to which the stockholder (or beneficial holder, if any, on whose behalf the proposal is made) or any of their respective affiliates or associates has the right to acquire beneficial ownership at any time in the future; (ii) any agreements, arrangements or understandings relating to any compensation or payments to be paid to any proposed nominees or otherwise pertaining to the proposed nominations or other proposed business; (iii) any proxy (subject to exception), agreement, arrangement, understanding or relationship pursuant to which the stockholder or beneficial owner has or shares a right to vote any shares of any class or series of the Company's capital stock; (iv) any rights to dividends or distributions on the shares of any class or series of the Company's capital stock owned beneficially by the stockholder or beneficial owner that are separated or separable from the underlying shares; (v) any performance-related fees (other than an asset-based fee) that the stockholder or beneficial owner is entitled to receive based on any increase or decrease in the value of shares of any class or series of the Company's capital stock; and (vi) the names and addresses of other stockholders (including beneficial owners) known by the proposing stockholder to support the nomination or other business proposal and, to the extent known, the class or series of the Company's capital stock, and the number of shares of each such class or series, owned beneficially or of record by such other stockholders or other beneficial owners; and

•a proposed nominee for election to the Board of Directors, or a person on such nominee's behalf, shall deliver to the Company within the specified notice period (i) a completed and signed questionnaire with respect to the background and qualification of the proposed nominee and the background of any other person or entity on whose behalf the nomination is being made and (ii) a written representation and agreement that the proposed nominee (a) is not and shall not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director, shall act or vote on any issue or question (a "voting commitment") that has not been disclosed to the Company, or any voting commitment that could limit or interfere with such proposed nominee's fiduciary duties under applicable law, (b) is not and shall not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Company, and (c) in the proposed nominee's individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director, and shall comply with, all applicable publicly disclosed corporate governance, code of conduct and ethics, conflict of interest, confidentiality, corporate opportunities, trading and any other policies and guidelines of the Company applicable to directors.

•The prior bylaws also were amended to eliminate provisions that had ceased to be applicable or effective as of the closing on December 28, 2018 of the transaction (the "Class V transaction") in which the Company paid $14 billion of cash and issued 149,387,617 shares of its Class C common stock in exchange for all outstanding shares of its Class V common stock, in a manner consistent with such amendments effected to the Company's certificate of incorporation by the Sixth Amended and Restated Certificate. The superseded provisions eliminated by the Bylaw Amendments included those in Articles II, III and IV of the prior bylaws referring to director groups that were replaced as of December 28, 2018 by the director groups currently in effect, and provisions in Article IV of the prior bylaws relating

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to the Capital Stock Committee of the Board of Directors, which ceased to operate upon the retirement of all outstanding Class V common stock at the closing of the Class V transaction.

In addition, the Bylaw Amendments implemented technical and administrative changes to the prior bylaws, including changes related to and consistent with the foregoing amendments.

The foregoing description of the Bylaw Amendments is qualified in all respects by reference to the text of the Amended Bylaws, which is filed as Exhibit 3.2 to this report and incorporated by reference in this Item 5.03.

The information set forth under Item 8.01 of this report is incorporated by reference in this Item 5.03.

Item 5.07 Submission of Matters to a Vote of Security Holders.

(a) On June 27, 2022, the Company held its 2022 annual meeting of stockholders (the "2022 annual meeting"). At the 2022 annual meeting, the Company's stockholders voted on four proposals. The proposals are described in the Company's definitive proxy statement on Schedule 14A for the 2022 annual meeting filed with the Securities and Exchange Commission on May 17, 2022 (the "proxy statement").

(b) As of the record date for the annual meeting, an aggregate of 748,145,864 shares of the Company's common stock were outstanding and entitled to vote at the meeting, of which 378,480,523 are shares of Class A common stock, 95,350,227 are shares of Class B common stock and 274,315,114 are shares of Class C common stock.

Each share of Class A common stock and each share of Class B common stock is entitled to ten votes per share. Each share of Class C common stock is entitled to one vote per share.

The final voting results with respect to each proposal voted upon at the 2022 annual meeting are set forth below.

Proposal 1

The holders of the outstanding shares of all outstanding series of the Company's common stock, voting together as a single class, elected to the Board of Directors of the Company each of the seven nominees for Group I director, and the holders of the Company's outstanding Class C common stock, voting separately as a series, elected to the Board of Directors of the Company the nominee for Group IV director, each as specified in the proxy statement, based on the following numbers of votes:

    Group I Director Nominee               For               Withheld        Broker Non-Votes
    Michael S. Dell                   4,820,075,753        100,450,363          38,430,149
    David W. Dorman                   4,834,276,239        86,249,877           38,430,149
    Egon Durban                       4,788,349,414        132,176,702          38,430,149
    David Grain                       4,912,117,674         8,408,442           38,430,149
    William D. Green                  4,875,435,540        45,090,576           38,430,149
    Simon Patterson                   4,868,406,811        52,119,305           38,430,149
    Lynn Vojvodich Radakovich         4,876,257,262        44,268,854           38,430,149


     Group IV Director Nominee              For             Withheld        Broker Non-Votes
     Ellen J. Kullman                   139,204,769        45,387,497          38,430,149

There were no abstentions with respect to this proposal.

Each nominee elected to the Board of Directors at the 2022 annual meeting as a Group I director or Group IV director was elected for a term commencing on the date of the 2022 annual meeting and ending on the earlier of the date on which the director's successor is elected and qualified and the date of the director's death, resignation, disqualification or removal.


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Proposal 2

The holders of the outstanding shares of all outstanding series of the Company's common stock, voting together as a single class, ratified the appointment of PricewaterhouseCoopers LLP as the Company's independent registered public accounting firm for the Company's fiscal year ending February 3, 2023, based on the following numbers of votes:

                           For              Against         Abstentions
                      4,941,045,587        16,378,718        1,531,960


There were no broker non-votes with respect to this proposal.

Proposal 3

The holders of the outstanding shares of all outstanding series of the Company's common stock, voting together as a single class, approved, by an advisory vote, the compensation of the Company's named executive officers as disclosed in the proxy statement, based on the following numbers of votes:

       For               Against         Abstentions         Broker Non-Votes
  4,815,059,527        103,641,050        1,825,539             38,430,149



Proposal 4

The Company's stockholders adopted the Sixth Amended and Restated Certificate of Incorporation of Dell Technologies Inc. in the form annexed to the proxy statement, based on the following numbers of votes of (a) the outstanding shares of all outstanding series of the common stock, voting together as a single class, (b) the outstanding shares of the Class A common stock, voting separately as a series, and (c) the outstanding shares of the Class B common stock, voting separately as a series:

Outstanding shares of all outstanding series of common stock

       For              Against         Abstentions         Broker Non-Votes
  4,887,273,478        32,551,587         701,051              38,430,149


Outstanding shares of Class A common stock

       For              Against        Abstentions         Broker Non-Votes
  3,782,431,590            0                0                     0


Outstanding shares of Class B common stock


     For             Against        Abstentions         Broker Non-Votes
 953,502,260            0                0                     0


Item 8.01  Other Events.

As described under Item 5.07 of this report, on June 27, 2022, the Company's stockholders voted at the 2022 annual meeting to adopt the Sixth Amended and Restated Certificate of Incorporation of Dell Technologies Inc. The Board of Directors of the Company approved the Sixth Amended and Restated Certificate and recommended its adoption by stockholders on April 27, 2022. The Sixth Amended and Restated Certificate was filed with the Secretary of State of the State of Delaware on June 29, 2022 and became effective on that date.

The Sixth Amended and Restated Certificate amended the Fifth Amended and Restated Certificate of Incorporation of Dell Technologies Inc. (the "prior certificate of incorporation") to:

•amend the forum selection provision in Article XIII of the prior certificate of incorporation to provide that, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933;


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•eliminate provisions of the prior certificate of incorporation that ceased to be applicable or effective as of the closing on December 28, 2018 of the Class V transaction referred to under Item 5.03 of this report and to make other technical and administrative changes related to and consistent with such amendments; and

•restate the prior certificate of incorporation to reflect the foregoing amendments.

A description of the amendments to the prior certificate of incorporation effected by the Sixth Amended and Restated Certificate is set forth in the description of Proposal 4 of the proxy statement referred to under Item 5.07 of this report.

A copy of the Sixth Amended and Restated Certificate is filed as Exhibit 3.1 to this report and incorporated by reference in this Item 8.01.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

The following are herewith filed as exhibits to this report:

    Exhibit
     Number                                             Description
           3.1           Sixth Amended and Restated Certificate of Incorporation of Dell
                       Technologies Inc.
           3.2           Third Amended and Restated Bylaws of Dell Technologies Inc.
             104       Cover Page Interactive Data File - the cover page XBRL tags are embedded
                       within the Inline XBRL document.


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