But altering a shareholder vote in Delaware always has litigation risks. Still, the Icahn proposal seems increasingly troubled.

Icahn's formal response to the Dell revised offer of $13.75 was still forthcoming, although he did send out a tweet on his official twitter feed that read: "All would be swell at Dell if Michael and the board bid farewell."

If the Silver Lake group cannot meet the special committee at $14 per share, likely with Michael Dell and/ or Microsoft Corp. absorbing the increased cost, and Dell loses the vote, the company will certainly respond with an alternative to undercut the Icahn solicitation to replace board members. That may be a stock repurchase and possibly a "beefed up" director slate, but it will beat an Icahn slate at an annual meeting that is not backed by a CEO, an arb said.

A share buyback program might not support Dell shares any higher than $10, but that matches on a pro-rata basis roughly what the Icahn proposal delivers in cash to tendering shareholders, who in that scenario retain some stub equity.

Shares of Dell traded Wednesday for $12.95 at a spread of 85 cents, or 6.1%, to the revised Silver Lake buyout.

-- Written by Scott Stuart in New York

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