Form 10-Q Dell Technologies Inc For: Nov 01
Exhibit 4.1 DELL TECHNOLOGIES INC. AMENDMENT NO. 1 TO THE SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT THIS AMENDMENT NO. 1 TO THE SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of May 27, 2019 (this “Amendment”), is entered into by and among Dell Technologies Inc. (the “Company”), a Delaware corporation, and each of the following (hereinafter severally referred to as a “Stockholder” and collectively referred to as the “Stockholders”): (a) Michael S. Dell and Susan Lieberman Dell Separate Property Trust (collectively, the “MD Stockholders”); (b) MSDC Denali Investors, L.P., a Delaware limited partnership, and MSDC Denali EIV, LLC, a Delaware limited liability company (collectively, the “MSD Partners Stockholders”); (c) SL SPV-2, L.P., a Delaware limited partnership, Silver Lake Partners IV, L.P., a Delaware limited partnership, Silver Lake Technology Investors IV, L.P., a Delaware limited partnership, Silver Lake Partners V DE (AIV), L.P., a Delaware limited partnership, Silver Lake Technology Investors V, L.P., a Delaware limited partnership, and SLP Denali Co-Invest, L.P., a Delaware limited partnership (collectively, the “SLP Stockholders”); and (d) Venezio Investments Pte. Ltd., a Singapore corporation (the “Temasek Stockholder”). Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Second Amended and Restated Registration Rights Agreement, dated as of December 25, 2018 (the “Registration Rights Agreement”), by and between the Company and the Stockholders referred to therein. Capitalized terms defined in this Amendment shall have the meanings ascribed to them herein for purposes of this Amendment and the Registration Rights Agreement. WHEREAS, pursuant to Section 2.1(a) of the Registration Rights Agreement, the Company is required to use its reasonable best efforts to file a Shelf Registration Statement for a public offering of all Registrable Securities (or such lesser amount agreed in accordance with the terms and conditions of the Registration Rights Agreement) no later than the first day on which such filing can be made with the SEC following the 150th day after the consummation of the Merger (such date, the “Shelf Registration Filing Deadline”); WHEREAS, the Company and the Stockholders wish to amend Section 2.1(a) of the Registration Rights Agreement to extend the Shelf Registration Filing Deadline; WHEREAS, any amendment, modification, supplement or waiver of or to any provision of the Registration Rights Agreement shall be effected in accordance with Section 3.11 thereof; WHEREAS, each of the undersigned Stockholders, on behalf of such Stockholder and such Stockholder’s designated transferees or successors, wishes to consent to the amendment of Section 2.1(a) of the Registration Rights Agreement provided for herein;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned parties agree as follows: 1. Amendment of Section 2.1(a). Section 2.1(a) of the Registration Rights Agreement is hereby amended by deleting the first sentence thereof in its entirety and replacing such deleted first sentence with the following: Following the Merger, the Company shall use reasonable best efforts to (i) file a Shelf Registration Statement for a public offering of all Registrable Securities (or such lesser amount as the Sponsor Stockholders holding Registrable Securities agree, provided, that (x) all Registrable Securities of the Management Holders must be registered under such Shelf Registration Statement, (y) all Registrable Securities held by the Temasek Holders must be registered under such Shelf Registration Statement, and (z) upon the request of any such Sponsor Stockholder, the Company shall increase the number of Registrable Securities registered under such Shelf Registration Statement by the amount requested by such Sponsor Stockholder (or, in the event that no Shelf Registration Statement is effective at the time of such request, shall file and cause to become effective a Shelf Registration Statement covering such number of Registrable Securities), and this parenthetical shall apply to successive requests by Sponsor Stockholders holding Registrable Securities) pursuant to Rule 415 promulgated under the Securities Act no later than the first day on which such filing can be made with the SEC on or after April 15, 2020 and (ii) cause such Shelf Registration Statement to become effective as soon as possible thereafter. 2. No Further Amendment. Except as expressly provided by this Amendment, the Registration Rights Agreement is and shall continue to be in full force and effect and is hereby in all respects ratified and reaffirmed. Except as expressly set forth in this Amendment, no other terms and conditions of the Registration Rights Agreement are hereby amended, modified, supplemented or waived. Upon the effectiveness of this Amendment, each reference in the Registration Rights Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to the Registration Rights Agreement as amended by this Amendment. 3. Governing Law. This Amendment 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 Amendment or the negotiation, execution, interpretation or performance of this Amendment (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 Amendment) shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable rules or principles of conflicts of laws. 4. Counterparts. This Amendment may be executed in any number of counterparts (which delivery may be via facsimile transmission or e-mail if in .pdf format), each of which shall be deemed an original, but all of which together shall constitute a single instrument. [Signature pages follow.] 2
IN WITNESS WHEREOF, the undersigned have executed and delivered this Amendment effective as of the date set forth above. CORPORATION: DELL TECHNOLOGIES INC. By: /s/ Robert L. Potts Name: Robert L. Potts Title: Senior Vice President and Assistant Secretary
MD STOCKHOLDER / MD HOLDER: /s/ Michael S. Dell Michael S. Dell
MD STOCKHOLDER / MD HOLDER: SUSAN LIEBERMAN DELL SEPARATE PROPERTY TRUST By: /s/ Marc R. Lisker Name: Marc R. Lisker Title: President of Trustee
MSD PARTNERS STOCKHOLDERS / MSD PARTNERS HOLDERS: MSDC DENALI INVESTORS, L.P. By: MSDC Denali (GP), LLC, its General Partner By: /s/ Marc R. Lisker Name: Marc R. Lisker Title: Manager
MSD PARTNERS STOCKHOLDERS / MSD PARTNERS HOLDERS: MSDC DENALI EIV, LLC By: MSDC Denali (GP), LLC, its Managing Member By: /s/ Marc R. Lisker Name: Marc R. Lisker Title: Manager
SLP STOCKHOLDER / SLP HOLDER: SL SPV-2, L.P. By: SLTA SPV-2, L.P., its General Partner By: SLTA SPV-2 (GP), L.L.C., its General Partner By: Silver Lake Group, L.L.C., its Managing Member By: /s/ Andrew J. Schader Name: Andrew J. Schader Title: Managing Director
SLP STOCKHOLDER / SLP HOLDER: 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/ Andrew J. Schader Name: Andrew J. Schader Title: Managing Director
SLP STOCKHOLDER / SLP HOLDER: SILVER LAKE TECHNOLOGY INVESTORS 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/ Andrew J. Schader Name: Andrew J. Schader Title: Managing Director
SLP STOCKHOLDER / SLP HOLDER: SILVER LAKE PARTNERS V DE (AIV), L.P. By: Silver Lake Technology Associates V, L.P., its General Partner By: SLTA V (GP), L.L.C., its General Partner By: Silver Lake Group, L.L.C., its Managing Member By: /s/ Andrew J. Schader Name: Andrew J. Schader Title: Managing Director
SLP STOCKHOLDER / SLP HOLDER: SILVER LAKE TECHNOLOGY INVESTORS V, L.P. By: Silver Lake Technology Associates V, L.P., its General Partner By: SLTA V (GP), L.L.C., its General Partner By: Silver Lake Group, L.L.C., its Managing Member By: /s/ Andrew J. Schader Name: Andrew J. Schader Title: Managing Director
SLP STOCKHOLDER / SLP HOLDER: SLP DENALI CO-INVEST, L.P. By: SLP Denali Co-Invest GP, L.L.C., its General Partner By: Silver Lake Technology Associates III, L.P., its Managing Member By: SLTA III (GP), L.L.C., its General Partner By: Silver Lake Group, L.L.C., its Managing Member By: /s/ Andrew J. Schader Name: Andrew J. Schader Title: Managing Director
TEMASEK STOCKHOLDER / TEMASEK HOLDER: VENEZIO INVESTMENTS PTE. LTD. By: /s/ Rohit Sipahimalani Name: Rohit Sipahimalani Title: Joint Head – Investment Group
Exhibit 31.1
CERTIFICATION OF MICHAEL S. DELL, CHAIRMAN AND
CHIEF EXECUTIVE OFFICER, PURSUANT TO RULE 13a-14(a) UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Michael S. Dell, certify that:
1. | I have reviewed this Quarterly Report on Form 10-Q of Dell Technologies Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
December 9, 2019 | /s/ MICHAEL S. DELL | |
Michael S. Dell | ||
Chairman and Chief Executive Officer | ||
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Exhibit 31.2
CERTIFICATION OF THOMAS W. SWEET, EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER, PURSUANT TO RULE 13a-14(a) UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Thomas W. Sweet, certify that:
1. | I have reviewed this Quarterly Report on Form 10-Q of Dell Technologies Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
December 9, 2019 | /s/ THOMAS W. SWEET | |
Thomas W. Sweet | ||
Executive Vice President and Chief Financial Officer | ||
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Exhibit 32.1
CERTIFICATIONS OF MICHAEL S. DELL, CHAIRMAN AND CHIEF EXECUTIVE OFFICER,
AND THOMAS W. SWEET, EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER, PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
The undersigned officers of Dell Technologies Inc. hereby certify that (a) Dell Technologies Inc.’s Quarterly Report on Form 10-Q for the three months ended November 1, 2019, as filed with the Securities and Exchange Commission, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (b) information contained in the report fairly presents, in all material respects, the financial condition and results of operations of Dell Technologies Inc.
December 9, 2019 | /s/ MICHAEL S. DELL | |
Michael S. Dell | ||
Chairman and Chief Executive Officer | ||
December 9, 2019 | /s/ THOMAS W. SWEET | |
Thomas W. Sweet | ||
Executive Vice President and Chief Financial Officer | ||
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