The foregoing summary of the provisions of the Amended and Restated Bylaws does not purport to be complete
and is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, which is attached hereto as Exhibit B to the Amendment and is incorporated by reference herein.
The Board has unanimously (i) adopted the Amendment (including the forms of Amended and Restated Charter and Amended and Restated Bylaws) and
(ii) recommended the adoption of the Amended Merger Agreement and the Amended and Restated Charter by the stockholders of the Company. The Amendment (including the forms of Amended and Restated Charter and Amended and Restated Bylaws) also has
been unanimously adopted, and the Amended Merger Agreement and the Amended and Restated Charter unanimously recommended for adoption by the holders of Class V Common Stock, by a special committee of independent directors of the Board that was
created to act solely in the interests of the holders of Class V Common Stock and to make recommendations to such holders.
Except as modified by the
Amendment, the terms of the Merger Agreement in the form filed by the Company as Exhibit 2.1 to its Current Report on Form
8-K
dated July 1, 2018 are unchanged.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a
copy of which is filed as Exhibit 2.1 hereto and the terms of which are incorporated herein by reference.
Commitment Letter for Debt Financing
In connection with the Amendment, Dell Inc., a wholly owned subsidiary of the Company, has entered into a commitment letter, dated November 14,
2018 (the Commitment Letter), with Bank of America, N.A., Barclays Bank PLC, Citigroup Global Markets Inc., Credit Suisse AG, Cayman Islands Branch, Goldman Sachs Bank, USA, JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc.,
Deutsche Bank AG New York Branch, Royal Bank of Canada and UBS AG, Stamford Branch (collectively, the Commitment Parties) and certain affiliates of the Commitment Parties, pursuant to which, subject to the terms and conditions set forth
therein, the Commitment Parties have committed to provide up to $5 billion principal amount of incremental debt financing (the incremental term loan facility) under the credit agreement, dated as of September 7, 2016, by and
among Denali Intermediate Inc., Dell Inc., Dell International L.L.C., EMC Corporation (as successor to Universal Acquisition Co.), Credit Suisse AG, Cayman Islands Branch, as Term Loan B administrative agent and collateral agent, JPMorgan Chase
Bank, N.A., as Term Loan A/Revolver administrative agent, and the lenders party thereto (as may be amended, supplemented or modified from time to time). The Commitment Letter also contemplates that, in lieu of the incremental term loan facility, the
Company or one or more of its subsidiaries may obtain alternate debt financing, the proceeds of which will reduce commitments in respect of the incremental term loan facility on a
dollar-for-dollar
basis. The funding of the incremental term loan facility is contingent on the satisfaction of customary conditions, including the approval of the
transactions contemplated by the Amended Merger Agreement by the stockholders of the Company. The proceeds of the incremental term loan facility and/or any alternate debt financing, together with Dell Technologies pro rata portion of the
special cash dividend to be paid by VMware, Inc. in connection with the Class V transaction, and cash on hand at the Company and its subsidiaries, will be used to fund (i) the Maximum Aggregate Cash Consideration and (ii) the fees and
expenses incurred in connection with the transactions contemplated by the Amended Merger Agreement.
Certain of the Commitment Parties and/or their
affiliates have provided the Company and its affiliates with financial advisory, commercial banking and investment banking services.
Investor Voting
and Support Agreements
On November 14, 2018, the Company entered into Voting and Support Agreements (the Investor Voting and Support
Agreements) with Elliott Associates L.P., Elliott International L.P., Dodge & Cox, Mason Capital Master Fund, LP and Canyon Capital Advisors, LLC (collectively, the Supporting Stockholders). Subject to the terms and
conditions set forth therein, each Supporting Stockholder has agreed, among other things, to vote the shares of the Companys capital stock over which it has voting power (i) in favor of the Merger and the adoption of the Amended Merger
Agreement and each of the transactions contemplated by the Amended Merger Agreement, including the adoption of the Amended and Restated Charter, and (ii) against any action that could reasonably be expected to