As filed with the Securities and Exchange Commission on August 8, 2008

Registration No. 333-151459

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

 

Amendment No. 2

To

 

FORM S-1

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

 

 

 

Dell Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

 

 

 

 

 

One Dell Way
Round Rock, Texas 78682
(512) 338-4400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 

 

 

 

Lawrence P. Tu
Senior Vice President and General Counsel
Dell Inc.
One Dell Way
Round Rock, Texas 78682
(512) 338-4400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

 

 

 

 

With copies to:

 

 

 

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  þ

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

 

The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

PROSPECTUS

 

Dell Inc.

 

5,841,982 Shares
Common Stock
Rescission Offer

 

We are offering, under the terms and conditions described in this prospectus, to rescind (the “Rescission Offer”) the previous purchase of 5,841,982 shares of our common stock (the “Shares”), par value $0.01 per share, by persons who acquired such shares through the Dell Inc. Stock Purchase Plan (the “ESPP”) by payroll deductions during the four quarterly periods ended March 31, 2006, June 30, 2006, September 30, 2006 and December 31, 2006 (the “Purchase Period”).

 

The Rescission Offer applies to Shares purchased during the Purchase Period at prices approximately ranging from $19.44 per Share to $25.59 per Share. If you purchased Shares pursuant to the ESPP during the Purchase Period and accept the Rescission Offer, you will receive:

 

 

Although this prospectus uses the term “interest” when describing the calculation of the Rescission Offer price, the term is only intended to describe the method used to calculate the payment amount, and the payment is not considered interest for U.S. federal income tax purposes. Instead, the entire amount will be considered as a payment for the sale of your Shares.

 

The Rescission Offer will expire at 3:00 p.m., U.S. Central Time, on September 26, 2008 (the “Expiration Date”), which is 49 days from the date of this prospectus.

 

Our common stock is listed on The NASDAQ Stock Market under the trading symbol “DELL.” The last reported sale price of our common stock (as reported on The NASDAQ Stock Market) on August 7, 2008, was $24.99 per share. Our principal executive offices are located at One Dell Way, Round Rock, Texas 78682. Our telephone number is (512) 338-4400.

 

You may elect to accept the Rescission Offer by submitting a Rescission Offer Election Form to us and, with respect to Shares you currently own, delivering those Shares to American Stock Transfer & Trust Company (“AST”) on or before the Expiration Date, in each case in accordance with the instructions to the Rescission Offer Election Form. You do not need to take any action to reject the Rescission Offer. If you fail to return a properly completed Rescission Offer Election Form (together with any other required documents) on or before the Expiration Date, you will be deemed by us to have rejected the Rescission Offer. In addition, if you fail to deliver Shares that you currently own to AST on or before the Expiration Date, you will be deemed to have rejected the Rescission Offer with respect to those Shares. Acceptance or rejection of the Rescission Offer may prevent you from maintaining any action against us based on a claim that we failed to register shares of our common stock purchased pursuant to the ESPP during the Purchase Period. In any event, such claim may be barred by applicable statutes of limitation. See “Risk Factors – Your right of rescission, if any, under federal and state law may not survive if you affirmatively reject or fail to accept the Rescission Offer” on page 9.

 

 

 

 

Investing in our common stock involves risks.  See “Risk Factors” on page 9.

 

The Shares subject to the Rescission Offer may be deemed not to have been properly registered under the Securities Act of 1933, as amended (the “Securities Act”), because we inadvertently exceeded the number of shares of our common stock registered with the Securities and Exchange Commission (the “SEC”) for offer and sale to participants under the ESPP. This prospectus is part of a Registration Statement on Form S-1 filed with the SEC to register these shares, regardless of whether or not you accept the Rescission Offer.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

 

The date of this prospectus is August 8, 2008

 

 

TABLE OF CONTENTS

 

 

You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with additional or different information. If anyone provides you with additional or different information, you should not rely on it. This prospectus is not an offer to sell or buy nor is it soliciting an offer to buy or sell these securities in any jurisdiction where such offer, solicitation or sale is not permitted. You should assume that the information contained in this prospectus is accurate only as of its date and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference. Our business, financial condition, results of operations and prospects may have changed since those dates.

 

Unless otherwise stated or the context otherwise requires, references in this prospectus to “Dell,” “we,” “us,” and “our” refer to Dell Inc. and its subsidiaries.

 

This prospectus and the documents to which we refer you in this prospectus contain “forward-looking statements” that are based on Dell’s current expectations. Actual results in future periods may differ materially from those expressed or implied by those forward-looking statements because of a number of risks and uncertainties. In addition to other factors and matters contained or incorporated by reference in this document, including those disclosed under “Risk Factors,” these statements are subject to risks, uncertainties and other factors, including, among others:

 

 

 

The following questions and answers are intended to address briefly some commonly asked questions regarding the Rescission Offer. These questions and answers do not address all questions that may be important to you as a participant in the ESPP who acquired shares by payroll deductions during the four quarterly periods ended March 31, 2006, June 30, 2006, September 30, 2006 and December 31, 2006. Please refer to “The Rescission Offer” beginning on page 10 and the more detailed information contained elsewhere in this prospectus and the documents incorporated by reference into this prospectus, which you should read carefully.

 

 

 

 

 

 

 

 

 

 

 

Dell Inc. Rescission Offer
70 University Avenue, P.O. Box 5
Toronto, ON
M5J 2M4

 

If you prefer to return your completed Rescission Offer Election Form and accompanying documentation via overnight delivery or you request delivery confirmation from the USPS, you may send your materials to:

 

Dell Inc. Rescission Offer
70 University Avenue, 8^th Floor
Toronto, ON
M5J 2M4
877-888-4601

 

 

 

American Stock Transfer & Trust Company
6201 15^th Avenue
Brooklyn, NY 11219
Attn: Carlos Pinto

 

 

 

 

Dell Inc. Rescission Offer
70 University Avenue, P.O. Box 5
Toronto, ON
M5J 2M4

 

 

Dell Inc. Rescission Offer
70 University Avenue, 8^th Floor
Toronto, ON
M5J 2M4
877-888-4601

 

 

 

 

An investment in our common stock involves risks. You should carefully consider the following risk factors relating to the Rescission Offer in addition to the risks identified in “Cautionary Statement Regarding Forward-Looking Statements” above and the risks identified in our Annual Report on Form 10-K for the year ended February 1, 2008, including those risks identified under the caption “Risk Factors” in our Annual Report on Form 10-K. Please see “Where You Can Find More Information” on page 18.

 

The Rescission Offer may not bar claims relating to our possible non-compliance with securities laws, and we may continue to be contingently liable for rescission or damages in an indeterminate amount.

 

It is not certain that the Rescission Offer will have the effect of barring claims relating to our possible non-compliance with applicable federal securities laws. If a person accepts the Rescission Offer, we believe our potential liability to that person will be eliminated. Should the Rescission Offer be rejected, we may continue to be contingently liable for rescission or damages, which could result in an adverse effect on our results of operations and financial condition. In addition, the Rescission Offer will not prevent regulators from pursuing enforcement actions or imposing penalties and fines against us with respect to any violations of securities laws. In any event, we do not expect the Rescission Offer to have a material impact on our financial condition or liquidity.

 

Your right of rescission under federal and state law, if any, may not survive if you affirmatively reject or fail to accept the Rescission Offer.

 

The rights remaining to the recipients of a rescission offer are not clearly delineated under federal or certain state securities laws. If you affirmatively reject or fail to accept the Rescission Offer, it is unclear whether your federal right of rescission, if any, will be preserved. The staff of the SEC takes the position that a person’s federal right of rescission may survive a rescission offer. However, the few federal courts that have addressed this issue in the past have suggested that, at least in certain circumstances, a person who rejects or fails to accept a rescission offer may be precluded from later seeking similar relief.

 

The Rescission Offer may also affect your right of rescission and your right to damages, if any, under state law. We believe that the sale of Shares that are the subject of the Rescission Offer were exempt from registration under state laws. Furthermore, we believe that the Rescission Offer is exempt from registration under the laws of such states and thus need not comply with the laws of such states regulating such offers. However, we do not make any representation as to the compliance of this Rescission Offer with applicable state law. Under most state laws, acceptance or rejection of a rescission offer may preclude offerees from initiating an action against the rescission offeror in connection with the registration of securities that are the subject of the rescission offer. We may assert, among other defenses, in any litigation initiated by a person eligible to participate in the Rescission Offer who accepts or rejects the Rescission Offer, that such person is estopped from asserting such claims as a result of the Rescission Offer.

 

Generally, the statute of limitations for enforcement of federal statutory rescission rights by a security holder is one year commencing on the date of the sale of the security sold in violation of the federal registration requirements, but in no event later than three years after the security was bona fide offered to the public. The Company believes that the one-year federal statute of limitations on sales of ESPP shares has expired and that ESPP participants now have no federal rescission rights. Statutes of limitations under state laws vary by state, with the limitation time period under many state statutes not typically beginning until the facts giving rise to a violation are known. Our Rescission Offer is not an admission that we did not comply with any federal and state registration or disclosure requirements nor is it a waiver by us of any applicable statute of limitations or any potential defense we may have. Determining when a statute of limitations expires under federal or state law can be a difficult issue, and you should consult with an attorney if you have any questions regarding how federal or state statutes of limitations may apply to any claims you have.

 

Dell listens to customers and delivers innovative technology and services they trust and value. As a leading technology company, we offer a broad range of product categories, including desktop PCs, servers and networking products, storage, mobility products, software and peripherals, and services. According to the IDC Worldwide Quarterly PC Tracker, we are the number one supplier of personal computer systems in the United States, and the number two supplier worldwide.

 

Our company is a Delaware corporation and was founded in 1984 by Michael Dell on a simple concept: by selling computer systems directly to customers, we can best understand their needs and efficiently provide the most effective computing solutions to meet those needs. Our corporate headquarters are located in Round Rock, Texas, and we conduct operations worldwide through subsidiaries.

 

Our principal executive offices are located at One Dell Way, Round Rock, Texas 78682. Our telephone number is (512) 338-4400.

 

Background and Reasons for the Rescission Offer

 

We are offering to repurchase up to 5,841,982 shares of our common stock from persons who purchased those shares under the ESPP that may have been required to be registered under the Securities Act. In the Spring of 2007, it appeared that the on-going Audit Committee investigation would prevent us from timely filing our annual report on Form 10-K for the fiscal year 2007. As a result, we began planning for a suspension of issuances under the ESPP. In the process of planning for the suspension, we discovered that issuances of shares under the ESPP exceeded the number of shares we had registered on Form S-8. Our inadvertent failure to register with the SEC the issuance of certain shares of our common stock under the ESPP may have constituted a violation of Section 5 of the Securities Act (which generally requires registration of offers and sales of securities) and may give rise to liability under Section 12 of the Securities Act (which generally provides a rescission remedy for offers and sales of securities in violation of Section 5).

 

We are making this Rescission Offer with regard to 5,841,982 unregistered Shares sold pursuant to the ESPP during the Purchase Period. We are making the Rescission Offer to ensure compliance with the Securities Act and to limit any contingent liability we may have as a result of possible noncompliance with applicable federal registration requirements in connection with the purchase of Shares by ESPP participants. Non-employee members of our Board of Directors were not eligible to participate in the ESPP and therefore are not eligible to participate in the Rescission Offer. Our current executive officers and employee directors who purchased Shares pursuant to the ESPP during the Purchase Period do not intend to participate in the Rescission Offer.

 

Effect of the Rescission Offer

 

If you reject or fail to timely accept the Rescission Offer in accordance with the terms and conditions set forth in this prospectus and the instructions to the Rescission Offer Election Form by 3:00 p.m., U.S. Central Time, on the Expiration Date, or if you accept the Rescission Offer but we determine that you are not eligible to accept the Rescission Offer under the terms set forth in this prospectus, you will retain ownership of the Shares you own and will not receive any payment for any Shares subject to the Rescission Offer (including any Shares that you may have previously sold). In addition, the Shares that you now own that are subject to the Rescission Offer, for purposes of applicable federal securities law, will be registered securities as of the date of this prospectus and, unless you are deemed to be an “affiliate” (as defined in Rule 144 under the Securities Act) of Dell, those shares will be freely tradable in the public market after the Expiration Date. Those shares owned by our affiliates will be subject to the restrictions on resale provided in Rule 144 under the Securities Act.

 

Your acceptance of the Rescission Offer may preclude you from later seeking similar relief, if any is available. For federal securities law purposes, rejection or the failure to accept a rescission offer may not

terminate an offeree’s right to bring a civil action against the offeror for failure to register securities under the Securities Act before expiration of the applicable statute of limitations. The staff of the SEC takes the position that a person’s federal right of rescission may survive a rescission offer. However, the few federal courts that have addressed this issue in the past have suggested that, at least in certain circumstances, a person who rejects or fails to accept a rescission offer may be precluded from later seeking similar relief.

 

The above discussion relates primarily to your potential rescission rights and does not address the antifraud provisions of federal securities laws or rights under state securities laws, common law or equity. We believe that the sale and issuance of the Shares that are the subject of the Rescission Offer were exempt from registration under state laws. Furthermore, we believe that this Rescission Offer is exempt from registration under state laws and thus need not comply with state laws regulating such offers. However, we do not make any representation as to the compliance of this Rescission Offer with any applicable state law. Under most state laws, acceptance or rejection of a rescission offer may preclude offerees from initiating an action against the rescission offeror in connection with the registration of securities that are the subject of the rescission offer.

 

Generally, the federal statute of limitations for enforcement of such statutory rights by a security holder is one year commencing on the date of the sale of the security sold in violation of the federal registration requirements, but in no event later than three years after the security was bona fide offered to the public. The Company believes that the one-year federal statute of limitations on sales of ESPP shares has expired and that ESPP participants now have no federal rescission rights. Statutes of limitations under state laws vary by state, with the limitation period under many state statutes not typically beginning until the facts giving rise to the violation are known. Our Rescission Offer is not an admission that we did not comply with any federal or state registration or disclosure requirement nor is it a waiver by us of any applicable statute of limitations or any potential defense we may have. Determining when a statute of limitations expires under federal or state law can be a difficult issue, and you should consult with an attorney if you have any questions regarding how federal or state statutes of limitations may apply to any claims you have or regarding any of your legal rights and remedies before deciding whether or not to accept the Rescission Offer.

 

Terms of the Rescission Offer

 

If you purchased Shares through the ESPP during the Purchase Period and have already sold those Shares at a loss, you may accept the Rescission Offer, in which case you will receive in U.S. dollars an amount equal to the amount you paid for the Shares less the proceeds you received for the sale of the Shares, plus interest at a rate of 5.27% per year. Interest will be paid on the amount originally paid for the Shares from the date you purchased the Shares through the date you sold the Shares. Interest will also be paid on the loss realized from your sale of the Shares from the date of such sale through the date that payment is made by us.

 

If you currently own Shares purchased through the ESPP during the Purchase Period, you may also accept the Rescission Offer with respect to any of those Shares, and we will repurchase in U.S. dollars those Shares from you, in which case you will receive the amount you paid for the Shares, plus interest at a rate of 5.27% per year for the period from the date you purchased the Shares to the date payment is made by us. However, we will not rescind the purchase of any Share if the price you paid for the Share plus interest (to the Expiration Date) is less than the value of the Share as of the Expiration Date, as it would not be economically beneficial to you.

 

Although this prospectus uses the term “interest” when describing the calculation of the Rescission Offer price, the term is only intended to describe the method used to calculate the payment amount, and the payment is not considered interest for federal income tax purposes. Instead, the entire amount will be considered as a payment for the sale of your Shares.

 

Because this Rescission Offer is being made, in part, to limit any contingent liability that we may have as a result of possible noncompliance with applicable U.S. federal registration requirements, and because the offerees to whom this Rescission Offer is being made reside in a variety of U.S. and non-U.S. jurisdictions, the Company believes that it is appropriate to use a U.S. federal reference rate of interest to determine the interest rate to be applied in this Rescission offer. U.S. federal law does not provide a specific rate of interest

to be used in rescission offers. However, we have determined that an appropriate interest rate to be applied in this Rescission Offer is the weekly average 1-year constant maturity Treasury yield (“CMT”), as published by the Board of Governors of the Federal Reserve System. We have selected the CMT rate in effect on both June 30, 2006, and July 7, 2006 (5.27%), because it represents the highest CMT rate in effect for any calendar week during the Purchase Period and is significantly higher than the CMT rate in effect on the date of this prospectus. Consequently, we will apply an annual rate of interest of 5.27% to all interest rate calculations used in this Rescission Offer.

 

The Rescission Offer will expire at 3:00 p.m., U.S. Central Time, on September 26, 2008, which is 49 days from the date of this prospectus. If all deliveries and other actions required to validly accept the Rescission Offer are completed in accordance with the terms and conditions set forth in this prospectus and the instructions to the Rescission Offer Election Form prior to the deadline specified in the preceding sentence, and we determine that you are eligible to accept the Rescission Offer, we expect to send you payment of any proceeds to which you are entitled within eight weeks following the Expiration Date. Proceeds may be paid through Dell payroll and/or a third party provider. Any amounts not paid through Dell payroll will be paid to you in U.S. dollars. In deciding whether to accept the Rescission Offer, you should consider your cost to convert U.S. dollars into your local currency, if applicable.

 

As of August 7, 2008, the closing sale price of our common stock (as reported on The NASDAQ Stock Market) was $24.99 per share. If you still own Shares, you should obtain current price information regarding our common stock prior to deciding whether to accept or reject the Rescission Offer.

 

The table below sets forth the high and low sale prices of our common stock for the first quarter of fiscal year 2009 and for each quarter during fiscal year 2008 and fiscal year 2007.

 

 

During the fiscal quarter ended May 2, 2008, we repurchased 52,330,027 shares of common stock at an aggregate purchase price of $1,031,001,292. Thereafter, through July 9, 2008, we repurchased 53,343,449 shares of common stock at an aggregate purchase price of $1,258,916,042. We have not sold significant amounts of our common stock during either of such periods other than upon the exercise of options granted under our Amended and Restated 2002 Long-Term Incentive Plan .

 

How to Accept or Reject the Rescission Offer

 

YOU ARE NOT LEGALLY REQUIRED TO ACCEPT THE RESCISSION OFFER.

 

How to accept the Rescission Offer

 

Acceptance of the Rescission Offer is optional. Generally, acceptance of the Rescission Offer is economically beneficial only if you have sold Shares purchased during the Purchase Period at a loss, or if you currently hold Shares purchased during the Purchase Period and the value of a Share on the Expiration Date is less than the price you paid for the Share, plus interest (to the Expiration Date).

 

You may mail or fax to us your Rescission Offer Election Form. In order to accept the Rescission Offer, you must complete the Rescission Offer Election Form, along with the attached Form W-9 or Form W-8BEN, and return them by mail or fax so that they are received by us on or before 3:00 p.m., U.S. Central Time, on September 26, 2008. US Persons (which includes US citizens and residents) need to complete and return the Form W-9. Non-US Persons need to complete and return the enclosed Form W-8BEN. Please review the Instructions to Rescission Offer Election Form to determine if you qualify as a US Person. You may mail your

Rescission Offer Election Form, your Form W-9/W-8BEN, and satisfactory proof of your sale history (if applicable) to:

 

Dell Inc. Rescission Offer
70 University Avenue, P.O. Box 5
Toronto, ON
M5J 2M4

 

If you prefer to return your completed Rescission Offer Election Form and accompanying documentation via overnight delivery or you request delivery confirmation from the USPS, you may send your materials to:

 

Dell Inc. Rescission Offer
70 University Avenue, 8^th Floor
Toronto, ON
M5J 2M4
877-888-4601

 

You may fax your Rescission Offer Election Form together with any other required documents to 888-810-7480 if you are in North America or 800-810-7480-0 if you are outside of North America.

 

If you choose to accept the Rescission Offer, we recommend that you mail or fax your Rescission Offer Election Form together with any other required documents sufficiently in advance of the Expiration Date to ensure its receipt by the deadline specified above. In addition, you should make arrangements sufficiently in advance to ensure that Shares you currently own and want us to repurchase are returned to AST by 3:00 p.m., U.S. Central Time, on the Expiration Date at the following address:

 

American Stock Transfer & Trust Company
6201 15^th Avenue
Brooklyn, NY 11219
Attn: Carlos Pinto

 

If you have already sold Shares subject to the Rescission Offer at a loss, we must receive by the deadline specified above proof reasonably satisfactory to us evidencing the bona fide sale of those Shares to a third party, including the sale price for those Shares. The method for returning the Rescission Offer Election Form is at your option and risk, and delivery will be deemed made only when actually received by us at the address indicated above. If delivery is by mail, we recommend using registered mail with return receipt requested.

 

YOUR PROPERLY COMPLETED RESCISSION OFFER ELECTION FORM (TOGETHER WITH ANY OTHER REQUIRED DOCUMENTS) MUST BE LEGIBLE AND RECEIVED BY US ON OR BEFORE 3:00 P.M., U.S. CENTRAL TIME, ON THE EXPIRATION DATE. OTHERWISE, YOU WILL BE DEEMED TO HAVE REJECTED THE RESCISSION OFFER. IN ADDITION, IF YOU ARE ACCEPTING THE RESCISSION OFFER WITH RESPECT TO SHARES YOU CURRENTLY OWN, AST MUST RECEIVE DELIVERY OF THOSE SHARES ON OR BEFORE 3:00 P.M., U.S. CENTRAL TIME, ON THE EXPIRATION DATE OR YOU WILL BE DEEMED TO HAVE REJECTED THE RESCISSION OFFER WITH RESPECT TO THOSE SHARES. IF YOU HAVE ALREADY SOLD SHARES SUBJECT TO THE RESCISSION OFFER AT A LOSS, YOU MUST ENCLOSE WITH THE RESCISSION OFFER ELECTION FORM PROOF REASONABLY SATISFACTORY TO US EVIDENCING THE BONA FIDE SALE OF THOSE SHARES TO A THIRD PARTY, INCLUDING THE SALE PRICE FOR THOSE SHARES, OR YOU WILL BE DEEMED TO HAVE REJECTED THE RESCISSION OFFER WITH RESPECT TO THOSE SHARES. WE WILL, IN OUR SOLE DISCRETION, DETERMINE WHETHER YOU ARE ELIGIBLE TO ACCEPT THE RESCISSION OFFER AND WHETHER YOU HAVE VALIDLY DONE SO.

 

As indicated above, US Persons should complete and return the Form W-9 attached to the Rescission Offer Election Form, and Non-US Persons should complete and return the enclosed Form W-8BEN. Please review the Instructions to the Rescission Offer Election Form to determine if you qualify as a US Person. You may participate in the Rescission Offer even if you do not complete your Form W-9 or Form W-8BEN. However, if your properly completed Form W-9 or Form W-8BEN is not received with your Rescission Offer

Election Form, we may be required to withhold additional amounts from Rescission Offer payments to you (generally at a 28% or 30% rate).

 

Certain Shares sold pursuant to the ESPP during the Purchase Period were registered in the name of the Depository Trust Company or its nominee, which we refer to in this prospectus as “DTC.” DTC facilitates the clearance and settlement of transactions through electronic book-entry changes in accounts of DTC participants. DTC participants include securities brokers and dealers , banks, trust companies, clearing corporations and other organizations. If you purchased, and still hold, Shares subject to the Rescission Offer through an account maintained by a DTC participant and you desire to accept the Rescission Offer, you should contact your DTC participant promptly and instruct it to accept the Rescission Offer on your behalf. Shares delivered electronically through a broker or other nominee via DWAC should be sent to American Stock Transfer & Trust Company (AST). AST’s DWAC participant number is 2941. You must advise your broker or other nominee to deliver your Shares via the “DWAC” system to DWAC agent 2941 AST. Because it may take your broker or other nominee several weeks to deliver your Shares to AST, you should contact your broker or other nominee as soon as practicable. Please make sure your broker or other nominee includes in the comments fields your unique identification number located on your Rescission Offer Election Form as Shares will not be accepted and you will be deemed to have rejected the Rescission Offer without your identification number. Please do not send your Rescission Offer Election Form to AST.

 

If you hold the Shares subject to the Rescission Offer through a broker or other nominee who accepts the Rescission Offer on your behalf, your broker or other nominee may charge you a commission for doing so. You should consult with your broker or other nominee to determine whether any charges will apply.

 

If you currently own Shares subject to the Rescission Offer and you hold certificates for those Shares, you must mail the certificates for the Shares to be repurchased by us to AST, properly endorsed for transfer, with your signature guaranteed by an eligible guarantor institution such as a commercial bank, trust company, securities broker dealer, credit union or savings & loan that is a member of the Medallion Signature Guarantee Program. Your mailing must include the identification number located on the Rescission Offer Election Form. Please do not send your Rescission Offer Election Form to AST. If you fail to include the identification number with your Share certificates you will be deemed to have rejected the Rescission Offer. Your Share certificates should be sent certified or registered mail and, for your protection, they should be insured for at least 2% of the value. The mailing address of AST is:

 

American Stock Transfer & Trust Company
6201 15^th Avenue
Brooklyn, NY 11219
Attn: Carlos Pinto

 

If you have already sold Shares subject to the Rescission Offer at a loss, you must enclose with the Rescission Offer Election Form proof reasonably satisfactory to us evidencing the bona fide sale of those Shares to a third party, including the sale price for those Shares. Satisfactory proof of the sale price of those Shares may take the form of a receipt from the broker, dealer or other person conducting the sale. The sale price may have been paid in either cash or property. If the sale price was paid in property, the price will be deemed to be the fair market value of such property at the time of sale. If the proof of the sale price is not reasonably satisfactory to us, you will be deemed to have rejected the Rescission Offer. In addition, we may require evidence that any sale of those Shares was a bona fide transfer to a third party.

 

How to reject the Rescission Offer

 

You do not need to take any action to reject the Rescission Offer. If you change your decision and want to reject the Rescission Offer after having submitted the Rescission Offer Election Form, you may reject the Rescission Offer by mailing or faxing a notice that includes your name, signature, address, identification

number and a clear indication that you are rejecting the Rescission Offer. You may mail your notice of rejection to:

 

Dell Inc. Rescission Offer
70 University Avenue, P.O. Box 5
Toronto, ON
M5J 2M4

 

If you prefer to send us your notice of rejection via overnight delivery or you request delivery confirmation from the USPS, you may send your notice of rejection to:

 

Dell Inc. Rescission Offer
70 University Avenue, 8^th Floor
Toronto, ON
M5J 2M4
877-888-4601

 

You may fax your notice of rejection to 888-810-7480 if you are in North America or 800-810-7480-0 if you are outside of North America.

 

If you have previously accepted the Rescission Offer and you change your mind, we must receive this notice of rejection on or before 3:00 p.m., U.S. Central Time, on the Expiration Date. Otherwise, you will be deemed to have accepted the Rescission Offer pursuant to your original Rescission Offer Election Form.

 

IF YOU FAIL TO PROPERLY COMPLETE ALL DELIVERIES AND OTHER ACTIONS REQUIRED FOR VALIDLY ACCEPTING THE RESCISSION OFFER PRIOR TO 3:00 P.M., U.S. CENTRAL TIME, ON THE EXPIRATION DATE, YOU WILL BE DEEMED TO HAVE REJECTED THE RESCISSION OFFER. ACCEPTANCE OR REJECTION OF THE RESCISSION OFFER MAY NOT TERMINATE YOUR RIGHT TO BRING A CIVIL ACTION AGAINST US FOR FAILURE TO REGISTER THE SHARES UNDER FEDERAL SECURITIES LAWS. HOWEVER, FEDERAL LAW DOES PROVIDE THAT YOU MAY LOSE ANY RESCISSION RIGHTS UNDER FEDERAL SECURITIES LAWS ONE YEAR FROM THE DATE OF PURCHASE OF SUCH SHARES AND THREE YEARS FROM THE DATE SUCH SHARES WERE BONA FIDE OFFERED TO THE PUBLIC.

 

If a DTC participant accepted the Rescission Offer on your behalf by submitting a Rescission Offer Election Form and you want to reject the Rescission Offer, then you must instruct the DTC participant to submit a notice of rejection according to the procedure described above.

 

If we receive a notice of rejection before the Expiration Date and you have previously delivered Shares to AST, AST will return the Shares to you as soon as practicable without any expense to you. AST will contact you after the Expiration Date with more information on how your Shares will be returned to you.

 

Funding the Rescission Offer

 

We have sufficient funds available to pay for the purchase of any Shares that may be tendered to us as a result of the Rescission Offer.

 

Questions about the Rescission Offer

 

If you have questions about the Rescission Offer, you may call the Dell Inc. Rescission Offer Call Center by dialing your country’s international long distance access code followed by 877-888-4601, Monday through Friday between the hours of 8:00 a.m. and 8:00 p.m., U.S. Central Time.

 

The following discussion summarizes the material U.S. federal income tax considerations relating to the Rescission Offer. This discussion is based on current law. The following discussion is not exhaustive of all

possible tax consequences. It does not discuss any state, local or foreign tax consequences, nor does it discuss all of the aspects of U.S. federal income taxation that may be relevant to you in light of your particular circumstances. This discussion only applies if you are an individual citizen or resident of the United States. Residents of or persons subject to taxation in other countries are urged to seek advice from independent tax counsel in those countries, since the tax laws of those countries may differ substantially from those of the United States.

 

To ensure compliance with U.S. Treasury Department Circular 230, we inform you that the following discussion (and any other discussion of U.S. federal tax issues herein) is written in connection with the promotion or marketing of the Rescission Offer and is not intended to be relied upon, and cannot be relied upon) by a participant in such offer for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code. Each prospective participant in the Rescission Offer should seek advice based on his or her own particular circumstances from an independent tax advisor.

 

Persons Selling Shares They Now Hold Under the Rescission Offer

 

Overview. For U.S. federal income tax purposes, it is expected that holders who sell Shares to us pursuant to the Rescission Offer will (i) in the case of Shares acquired through payroll deductions in the three quarters ended March 31, 2006, June 30, 2006 and September 30, 2006, recognize taxable ordinary compensation income to the extent the amount received exceeds the amount paid for those Shares and (ii) in the case of Shares acquired through payroll deductions in the quarter ended December 31, 2006, recognize ordinary compensation income to the extent that the fair market value of those Shares at the time of purchase exceeded the price paid for the Shares, together with a capital loss to the extent that the fair market value of the Shares at the time of purchase exceeds the price received for the Shares pursuant to the Rescission Offer. We intend to treat the purchase of the Shares pursuant to the Rescission Offer as a taxable redemption of stock arising out of a potential securities law claim, and the remainder of this discussion assumes the correctness of such treatment. A taxable redemption of stock would normally be expected to cause most holders to recognize capital gain income (either short term or long term, depending on their holding period) equal to the excess of the amount received over the price paid for the Shares. As discussed below, however, the tax consequences of accepting the Rescission Offer are governed by special tax rules that apply to employee stock purchase plans like the ESPP.

 

Shares Acquired Through Payroll Deductions in the Quarters Ended March 31, 2006, June 30, 2006 and September 30, 2006. The following discussion applies only to Shares you now hold that you acquired under the ESPP through payroll deductions in the three quarters ended March 31, 2006, June 30, 2006 and September 30, 2006. Because those Shares were initially acquired by you under the ESPP at a discount to their fair market value, it is the opinion of Jones Day (“Tax Counsel”) that Section 423(c) of the Code requires that your gain on the repurchase of such Shares pursuant to the Rescission Offer be treated as ordinary compensation income (rather than gain from sale of stock) to the extent of the lesser of (1) the excess of fair market value of your Shares upon disposition (which we intend to interpret as being equal to the amount paid to you) over the amount paid for them (i.e., the total gain recognized for tax purposes) or (2) the excess of fair market value of the Shares at the time you were granted the right to buy the shares over the price you paid for the Shares. Given stock prices on the relevant dates and the price being offered in the Rescission Offer, it is expected that this will result in all of your gain being characterized as ordinary compensation income.

 

Shares Acquired Through Payroll Deductions in the Quarter Ended December 31, 2006. The following discussion applies only to Shares you now hold that you acquired under the ESPP through payroll deductions in the quarter ended December 31, 2006. If Shares acquired under the ESPP are sold by you within two years after you were first granted the right to purchase the Shares (a “disqualifying disposition”), it is the opinion of Tax Counsel that Section 423(a) of the Code requires that in the year of disposition you recognize ordinary compensation income to the extent that the fair market value of the Shares on the date of your acquisition exceeded the price you paid for them. It is anticipated that your acceptance of the Rescission Offer will constitute a disqualifying disposition with respect to any Shares that you purchased under the ESPP at the end of the calendar quarterly period ended December 31, 2006 (since your right to purchase those Shares would have been granted on October 1, 2006, which is less than two years before your disposition). In that event,

you will recognize ordinary compensation income in the amount noted above and a capital loss on the sale of your Shares (to the extent the ordinary compensation income so recognized plus the price you paid for the Shares exceeds the amount received for the Shares pursuant to the Rescission Offer).

 

In general, capital losses may not be offset against your ordinary compensation income, except to the extent of $3,000 per year, but unused capital losses may be carried forward indefinitely to offset future capital gains. In the case of a disqualified disposition, then, depending upon your ability to use capital losses, it is possible (as illustrated by the hypothetical examples below) that you will pay tax at ordinary income tax rates on an amount greater than your economic gain on the repurchase. The resulting tax disadvantage may reduce or even outweigh your non-tax economic benefits from accepting the Rescission Offer. Thus, if your acceptance would result in a disqualifying disposition with respect to any of your Shares, you are strongly encouraged to consult with your own federal income tax advisor about the advisability of accepting the Rescission Offer.

 

For example, if at the end of the quarter ended December 31, 2006, you paid $1000 to acquire Shares (pursuant to a right granted to you on October 1, 2006), you would have acquired Shares with a Fair Market Value (as defined in the ESPP) on that date of approximately $1,176; this difference in value reflects the 15% discount which you received under the ESPP compared to the market value of those Shares at the end of that quarter. This discussion assumes that such $1,176 is the “fair market value” of the Shares on that date. If you accept the Rescission Offer, your disposition of those Shares will be a disqualifying disposition, since it occurs within two years of the time the right to buy these Shares was granted to you under the ESPP. The Rescission Offer price we will pay you for the Shares will be approximately $1,093 (your purchase price plus interest). Accordingly, your sale of these Shares pursuant to the Rescission Offer would cause you to recognize ordinary compensation income in the amount of $176 ($1,176 minus $1000), and then to recognize a capital loss of $83 (1,176 minus $1,093).

 

In this example, the net tax consequences to you would then depend on your ability to utilize capital losses and on the marginal tax rates to which you are subject. If you are able to offset all of this capital loss against your current year ordinary compensation income (e.g., because your total capital losses from all sources are less than $3000), your net tax result will be that you pay tax at ordinary income rates on your net economic profit (i.e., on the excess of the price you receive over the price you paid for the Shares). In that event, the taxes arising from the transaction will reduce but not outweigh the economic benefit of the transaction. On the other hand, if you are completely unable to utilize any capital losses now or in the future (e.g., because you have significant other capital losses and no expectation of future capital gains), and you are subject to an effective combined marginal net federal and state income tax rate of 45%, the net tax payable by you should be about $79 (45% of 176). In that event, it would not be economically beneficial for you to sell those Shares pursuant to the Rescission Offer if the fair market value of the Shares on the Expiration Date is more than $1,014, because the adverse tax consequences of $79 would exceed the non-tax economic gain to you of accepting the Rescission Offer (i.e., the excess of the Rescission Offer price over the then current market value of those Shares).

 

The foregoing example is a purely hypothetical illustration and may differ from your actual position; please consult with your own tax advisor concerning the tax consequences in your particular situation. While there is no simple rule of thumb for determining whether such tax consequences will outweigh the economic benefit for Shares sold in a disqualifying disposition, this will generally not occur if the fair market value of those Shares on the Expiration Date is significantly less than the price you paid for those Shares.

 

Persons Who Sold Shares At a Loss Before the Rescission Offer

 

Holders who sold their Shares at a loss before the Rescission Offer and accept the Rescission Offer, and thus receive a cash payment in compensation for their losses, will recognize taxable income in the amount of such payment. Under general principles of federal income taxation, the character of such income should depend on the type of income or loss which gives rise to the payment. Thus income recognized by you from accepting the Rescission Offer should be capital gain to the extent it compensates you for a capital loss suffered upon the earlier sale. Although the law is not completely clear, it is the opinion of Tax Counsel that the remainder of the amount paid to you in excess of your prior capital loss should be taxed as ordinary

compensation income, thus producing a result similar to what you would have experienced if you had not originally sold the Shares but had instead sold them pursuant to this Rescission Offer.

 

We will receive no proceeds from the Rescission Offer.

 

We maintain an Internet website at www.dell.com. All of our reports filed with the SEC (including annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and proxy statements) are accessible through the Investor Relations section of our website at www.dell.com/investor, free of charge, as soon as reasonably practicable after electronic filing. The public may read and copy any materials that we file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Room 1580, Washington, DC 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC at www.sec.gov.

 

We have filed with the SEC a registration statement under the Securities Act that registers the distribution of the securities offered hereby. The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and the securities being offered. This prospectus, which forms part of the registration statement, omits certain of the information contained in the registration statement in accordance with the rules and regulations of the SEC. Reference is hereby made to the registration statement and related exhibits for further information with respect to us and the securities offered hereby. Statements contained in this prospectus concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the registration statement or otherwise filed with the SEC. Each such statement is qualified in its entirety by such reference.

 

We incorporate into this prospectus by reference the following documents filed by us with the SEC, each of which should be considered an important part of this prospectus:

 

 

Any person, including any beneficial owner, to whom this prospectus is delivered may request copies of this prospectus and any of the documents incorporated by reference in this prospectus, without charge, by written or oral request directed to Dell Investor Relations, Dell Inc., One Dell Way, Round Rock, Texas 78682, telephone (512) 728-7800, on the “Investor Relations” section of Dell’s website at http://www.dell.com/investor or from the SEC through the SEC’s website at the address provided above. Documents incorporated by reference are available without charge, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference into those documents.

 

Unless otherwise specified in this prospectus, certain legal matters relating to the securities to be offered hereby will be passed upon for us by Janet B. Wright, Esq., Director–Corporate Legal of our Company.

 

The consolidated financial statements incorporated in this Prospectus by reference to Dell Inc.’s Current Report on Form 8-K dated June 5, 2008, and the financial statement schedule and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K of Dell Inc. for the year ended February 1, 2008 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

PART II
INFORMATION NOT REQUIRED IN PROSPECTUS

 

 

The following is an itemized statement of the expenses expected to be incurred in connection with the Rescission Offer. With the exception of the SEC registration fee, the amounts set forth below are estimates.

 

 

 

Under our Restated Certificate of Incorporation and Restated Bylaws, our officers and directors are entitled to indemnification from Dell to the fullest extent permitted by the General Corporation Law of the State of Delaware, or DGCL. In addition, Dell may, to the fullest extent permitted by the DGCL or to such lesser extent as is determined in the discretion of the Board of Directors, indemnify its other employees and agents. Pursuant to Section 145 of the DGCL, Dell generally has the power to indemnify its present and former directors and officers against expenses and liabilities incurred by them in connection with any suit to which they are, or are threatened to be made, a party by reason of their serving in those positions so long as they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of Dell, and with respect to any criminal action, they had no reasonable cause to believe their conduct was unlawful. With respect to suits by or in the right of Dell, however, indemnification is generally limited to attorneys’ fees and other expenses and is not available if the person is adjudged to be liable to Dell unless the court determines that indemnification is appropriate. The statute expressly provides that the power to indemnify authorized thereby is not exclusive of any rights granted under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. Dell also has the power to purchase and maintain insurance for its directors and officers.

 

The preceding discussion of our Restated Certificate of Incorporation and Section 145 of the DGCL is not intended to be exhaustive and is qualified by the Restated Certificate of Incorporation and Section 145 of the DGCL.

 

We have entered into indemnification agreements with each of our non-employee directors. Those agreements do not increase the extent or scope of the indemnification provided, but were entered into to establish processes and procedures for indemnification claims.

 

 

Set forth below is a listing of all sales of securities by Dell during the past three years not registered under the Securities Act of 1933, as amended:

 

Internal Restructuring. We have modified the corporate organizational structure of certain of our subsidiaries to achieve more integrated global operations and to provide various financial, operational, and tax efficiencies. In connection with this internal restructuring, on December 28, 2006, we issued approximately 475 million shares of our common stock valued at $12.0 billion based on the closing price on The NASDAQ Stock Market on that date, to a wholly-owned subsidiary in return for an equivalent value in equity interests in the subsidiary. As part of the restructuring, the subsidiary used these shares to acquire a controlling interest in another wholly-owned subsidiary. Because all the shares issued as part of this restructuring are held by one or more of our wholly-owned subsidiaries, the shares are not considered outstanding in our consolidated financial statements or for voting purposes. We continue to be the ultimate beneficial owner of all subsidiaries involved in the internal restructuring.

These shares have not been registered under the Securities Act and were issued in a transaction not involving a public offering pursuant to the exemption under Section 4(2) of the Securities Act. The shares may not be resold absent registration or an applicable exemption from the registration requirements under the Securities Act or other applicable law.

 

Certain Employee Benefit Plan Securities. As a result of our inability to file our Annual Report on Form 10-K for Fiscal 2007 on its due date (April 3, 2007), we suspended our sale of Dell securities under our various employee benefit plans. In preparing for that suspension, we discovered that we had inadvertently failed to file with the SEC certain registration statements relating to securities under the plans.

 

 

 

 

 

 

The undersigned registrant hereby undertakes:

 

(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

(b) That, for purposes of determining liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities shall be deemed to be the initial bona fide offering thereof.

 

(c) That insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this amendment to registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Round Rock, State of Texas, on the 8^th day of August, 2008.

 

DELL INC.

 

Lawrence P. Tu

Senior Vice President &

General Counsel

 

Pursuant to the requirements of the Securities Act of 1933, this amendment to registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

INDEX TO EXHIBITS