SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No.)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to 240.14a-12
GENZYME CORPORATION
(Name of Registrant as Specified In Its Charter)
DR. STEPHEN BURAKOFF
DR. ALEXANDER J. DENNER
MR. CARL C. ICAHN
DR. RICHARD MULLIGAN
DR. ERIC ENDE
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
[PRELIMINARY COPIES, SUBJECT TO COMPLETION]
2010 ANNUAL MEETING OF SHAREHOLDERS
OF
GENZYME CORPORATION
___________________
PROXY STATEMENT
OF
DR. STEPHEN BURAKOFF
DR. ALEXANDER J. DENNER
MR. CARL C. ICAHN
DR. RICHARD MULLIGAN
DR. ERIC ENDE
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
___________________
To Our Fellow Genzyme Shareholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to shareholders ("Shareholders") of Genzyme Corporation, 500 Kendall
Street, Cambridge, Massachusetts 02142 ("Genzyme," "Corporation" or "Company")
in connection with the solicitation of proxies by Carl C. Icahn and the
Participants (as hereinafter defined), to be used at the 2010 Annual Meeting
(the "Annual Meeting") of Shareholders of Genzyme which is scheduled to be held
at the American Academy of Arts and Sciences, 136 Irving Street, Cambridge,
Massachusetts, on June 16, 2010, at 9 a.m. local time, and at any adjournments,
postponements or continuations thereof. This Proxy Statement and the GOLD proxy
card are first being furnished to Shareholders on or about [ ].
At the Annual Meeting, the Participants will seek to elect to the Board of
Directors ("Board") of Genzyme the following persons (each a "Nominee" and
collectively, the "Nominees"):
DR. STEPHEN BURAKOFF
DR. ALEXANDER J. DENNER
MR. CARL C. ICAHN
DR. RICHARD MULLIGAN
The Icahn Parties (as hereinafter defined) believe that Genzyme's inability
to fully manufacture and supply certain of its products leads to the conclusion
that the manufacturing system at Genzyme is "broken." This conclusion is further
evidenced by Genzyme's subsequent announcement of the Food and Drug
Administration's enforcement action. As Board members, the Nominees will work,
subject to their fiduciary duties, to understand and then help Genzyme correct
what they believe is "broken."
The Icahn Parties believe that Nominees knowledge of science, medicine,
finance and business will significantly improve the science and business
expertise of the Board of Directors of Genzyme. The Icahn Parties also believe
that each Nominee is a strong shareholder-oriented individual who will help
represent the best interests of Genzyme's shareholders.
Each of our Nominees has consented to being named in this Proxy Statement
and, if elected, to serve as a director.
Under the proxy rules we may only solicit proxies for our Nominees, which
would result in limiting the ability of Shareholders that would like to vote for
our Nominees to fully exercise their voting rights to vote for up to a full
complement of ten directors. Alternatively, we may solicit proxies in support of
our Nominees and also seek authority to vote for all of the Genzyme nominees
other than those Genzyme nominees we specify. This would enable a Shareholder
who desires to vote for up to a full complement of ten director nominees to use
the GOLD proxy card to vote for our Nominees as well as the Genzyme nominees for
whom we are seeking authority to vote other than those nominees as to which the
Shareholder specifically withholds our authority to vote for. We have determined
to nominate a slate of four Nominees, Mr. Icahn, Drs. Burakoff, Denner and
Mulligan and are seeking authority to vote for up to all of the Genzyme nominees
other than [ ]. As a result, should a Shareholder so authorize us, on the GOLD
proxy card, we would cast votes for our four Nominees and up to six Genzyme
nominees. None of the Genzyme nominees for whom we seek authority to vote have
agreed to serve with any of our Nominees, if elected. Additionally, if Genzyme
does not nominate the respective individuals for which we seek authority to
vote, our GOLD proxy card will not allow such Shareholder to utilize the GOLD
proxy card to vote for such individual.
THE PARTICIPANTS URGE YOU TO VOTE THE GOLD PROXY CARD FOR DR. STEPHEN
BURAKOFF, DR. ALEXANDER J. DENNER, MR. CARL C. ICAHN AND DR. RICHARD MULLIGAN AS
DIRECTORS.
The Nominees and each of the other Participants have no interest in Genzyme
other than through the beneficial ownership (if any) of shares of Common Stock,
par value $.01 per share, of Genzyme (the "Common Stock") or other securities
(if any) of Genzyme, except as disclosed herein, including the Annexes hereto,
and in the case of Dr. Ende pursuant to his Consulting Agreement, as described
herein, and in the case of Drs. Burakoff and Mulligan, pursuant to an agreement
in which certain affiliates of Carl C. Icahn have agreed to pay each of Drs.
Burakoff and Mulligan $25,000 and to indemnify each Nominee (other than Mr.
Icahn) with respect to certain costs incurred by each such Nominee in connection
with the proxy contest relating to the Annual Meeting (the "Nominee Agreement").
DR. STEPHEN BURAKOFF, DR. ALEXANDER J. DENNER, MR. CARL C. ICAHN AND DR.
RICHARD MULLIGAN ARE COMMITTED TO ACTING IN THE BEST INTEREST OF ALL
SHAREHOLDERS OF GENZYME. THE PARTICIPANTS URGE YOU TO VOTE YOUR GOLD PROXY CARD
FOR DR. STEPHEN BURAKOFF, DR. ALEXANDER J. DENNER, MR. CARL C. ICAHN AND DR.
RICHARD MULLIGAN.
IMPORTANT
According to Genzyme's Proxy Statement, the Bylaws and applicable law, the
election of the Nominees requires the affirmative vote of a plurality of the
votes cast by the holders of Genzyme's Common Stock at a meeting at which a
quorum is present in person or represented by proxy. As a result, your vote is
extremely important. We urge you to mark, sign, date, and return the enclosed
GOLD proxy card to vote FOR the election of each Nominee.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY GENZYME. IF YOU HAVE
ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED GOLD
PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, EXECUTING A VOTE VIA
INTERNET OR TELEPHONE, OR BY VOTING IN PERSON AT THE ANNUAL MEETING. SEE "VOTING
PROCEDURES" AND "PROXY PROCEDURES" BELOW.
If you attend the Annual Meeting and you beneficially own shares of Common
Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT be sufficient to cancel your prior given proxy card. You must have
written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in
this Proxy Statement for assistance or if you have any questions.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 347-4750
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/GENZYME.
Only holders of record of Genzyme's Common Stock as of the close of
business on April 9, 2010 (the "Record Date") are entitled to notice of, and to
attend and to vote at, the Annual Meeting and any adjournments or postponements
thereof. According to the definitive proxy statement of Genzyme filed with the
Securities and Exchange Commission ("Genzyme's Proxy Statement"), as of the
Record Date, there were outstanding 266,470,351 shares of Common Stock.
Shareholders of record at the close of business on the Record Date will be
entitled to one vote at the Annual Meeting for each share of Common Stock of
Genzyme held on the Record Date.
As of the Record Date, the Participants and their affiliates beneficially
owned an aggregate of 13,100,000 shares of Common Stock, representing
approximately 4.92% of the outstanding shares of Common Stock. The Participants
and their affiliates intend to vote such shares of Common Stock FOR the election
of the Nominees.
VOTE FOR THE NOMINEES BY USING THE ENCLOSED GOLD PROXY TO VOTE TODAY - BY
TELEPHONE, BY INTERNET, OR BY MARKING, SIGNING, DATING AND RETURNING THE GOLD
PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are Dr. Stephen Burakoff, Dr. Alexander J.
Denner, Mr. Carl C. Icahn and Dr. Richard Mulligan), the participants in the
solicitation of proxies (the "Participants") from Shareholders of Genzyme
include the following: High River Limited Partnership, a Delaware limited
partnership ("High River"), Hopper Investments LLC, a Delaware limited liability
company ("Hopper"), Barberry Corp., a Delaware corporation ("Barberry"), Icahn
Partners LP, a Delaware limited partnership ("Icahn Partners"), Icahn Partners
Master Fund LP, a Cayman Islands limited partnership ("Icahn Master"), Icahn
Partners Master Fund II LP, a Cayman Islands limited partnership ("Icahn Master
II"), Icahn Partners Master Fund III LP, a Cayman Islands limited partnership
("Icahn Master III"), Beckton Corp., a Delaware corporation ("Beckton"), Icahn
Enterprises G.P. Inc., a Delaware corporation ("Icahn Enterprises GP"), Icahn
Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Enterprises
Holdings"), IPH GP LLC, a Delaware limited liability company ("IPH"), Icahn
Capital LP, a Delaware limited partnership ("IcahnCapital"), Icahn Onshore LP, a
Delaware limited partnership ("Icahn Onshore"), Icahn Offshore LP, a Delaware
limited partnership ("Icahn Offshore") and Dr. Eric Ende.
Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III
(collectively, the "Funds") and High River (together with the Funds, the "Icahn
Parties"), are entities controlled by Mr. Icahn. Dr. Denner is an employee
and/or officer and/or director of the Icahn Parties and various other entities
controlled by Mr. Icahn, and who will participate in soliciting proxies from
Genzyme Shareholders. Dr. Denner does not own beneficially any interest in
securities of Genzyme. Dr. Denner will not receive any special compensation in
connection with this solicitation. In connection with their employment by Mr.
Icahn and his affiliated companies, Dr. Denner, among other employees, has a
participatory interest in the profits and fees derived by Mr. Icahn and/or his
affiliated entities in the Funds. Because only a portion of such profit
interests are distributed and because of Dr. Denner's other investments in the
Funds, Dr. Denner also has capital accounts in the Funds. Generally, in the
aggregate, Dr. Denner's profit interests and capital accounts in the Funds
entitle him to less than 2% of the profits generated by the Funds. Dr. Ende is
an independent consultant retained by Icahn Capital to solicit proxies and
provide consulting services relating to this solicitation and general consulting
services relating to other investments by the Icahn Parties. Dr. Ende does not
own beneficially any interest in securities of Genzyme. Assuming the Annual
Meeting of Genzyme is held in June and further assuming the contest is
successful the agreement referred to herein may provide for payments of up to
approximately $200,000.00. The business address of Dr. Ende is 102 via Palacio,
Palm Beach Gardens, Florida 33418.
In consideration of providing certain investment advisory, administrative
and back office services to the Funds, Icahn Onshore, the general partner of
Icahn Partners and Icahn Offshore, the general partner of Icahn Master, Icahn
Master II and Icahn Master III, (together, the "General Partners"), are
allocated from the Funds on an annual basis (i) special profits interest
allocations ranging from 1.5% to 2.5% of the balance in each of the Funds'
capital accounts attributable to fee-paying investors but such allocations are
made only to the extent that there is sufficient profits to cover such amounts
and (ii) incentive allocations, subject to a "Highwater Mark" (whereby the
General Partners do not earn incentive allocations during a particular year even
though the fund had a positive return in such year until losses in prior periods
are recovered), ranging from 15% to 25% of the net profits generated by
fee-paying investors of the Funds. Therefore, the amounts received by the
General Partners will be affected by the combination of fee-paying assets under
management and the investment performance of the Funds (including any increase
or decrease in the value of shares of the Corporation). The General Partners are
owned by Icahn Capital, which is a subsidiary of Icahn Enterprises L.P., a New
York Stock Exchange listed master limited partnership ("Icahn Enterprises").
Carl C. Icahn is the indirect owner of the general partner of Icahn Enterprises
and the indirect holder of approximately 92.34% of the outstanding depositary
units representing limited partnership interests in Icahn Enterprises.
Annex A attached hereto sets forth, as to the Nominees and the other
Participants, all transactions in securities of Genzyme effected during the past
two years and their beneficial ownership of securities of Genzyme.
With respect to each Participant (including the Nominees), except as set
forth herein or in any of the Annexes attached hereto, (i) such Participant is
not, nor was within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of Genzyme,
including, but not limited to, joint ventures, loan or option arrangements, puts
or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies; and (ii) neither such
Participant nor any of such Participant's associates have any arrangement or
understanding with any person with respect to (A) any future employment by
Genzyme or its affiliates or (B) any future transactions to which Genzyme or any
of its affiliates will or may be a party.
PROPOSAL 1 -- ELECTION OF DIRECTORS
Given that the Icahn Parties believe that the Company has not yet been able
to cure, among other things, its severe manufacturing and supply problems, the
Icahn Parties believe that a change in Board composition at Genzyme is necessary
to bring new ideas and ways of looking at problems to the existing Board. The
Nominees are committed to the best interests of all Genzyme Shareholders and
intend to work to correct the problems associated with manufacturing and to
improving shareholder value. The Nominees are unable to fully formulate specific
plans with respect to the Company as they are not privy to non-public
information regarding Genzyme's manufacturing problems. The Icahn Parties
believe that the Nominees, based upon their vast experiences as disclosed
herein, can help to effect positive change at the Company by working with the
other Board members and management in correcting these problems and improving
shareholder value.
Article I, Section 5, of Genzyme's Amended and Restated Bylaws, effective
May 24, 2007, provide that Shareholder nominations of directors may be made by "
any shareholder entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this section." On February
19, 2009 the Icahn Parties, record holders of Common Stock, delivered timely
notice in accordance with the foregoing, notifying Genzyme that the Icahn
Parties intend to nominate and will seek to elect at the Annual Meeting - Dr.
Stephen Burakoff, Dr. Alexander J. Denner, Mr. Carl C. Icahn and Dr. Richard
Mulligan as members of the board of directors of Genzyme. Each Nominee, if
elected, would serve a one-year term and hold office until the 2011 annual
meeting of Shareholders and until a successor has been duly elected and
qualified. Background information about each of the Nominees is set forth below
and the Annexes attached hereto.
According to Genzyme's Proxy Statement, the Board of Genzyme intends to
nominate ten candidates for election as directors at the Annual Meeting. This
Proxy Statement is soliciting proxies to elect Dr. Stephen Burakoff, Dr.
Alexander J. Denner, Mr. Carl C. Icahn and Dr. Richard Mulligan, and to enable
Shareholders to vote for the Genzyme nominees other than [ ]. Therefore, should
a Shareholder so authorize us, we will cast votes for our four Nominees and up
to six Genzyme nominees. None of such Genzyme nominees for whom we seek
authority to vote have agreed to serve with any of our Nominees, if elected.
If elected, the Nominees will be a minority of the directors and will not
alone be able to adopt resolutions. However, the Nominees expect to be able to
actively engage other Board members in full discussion of the issues facing the
Company and resolve them together. By utilizing their respective experiences and
working constructively with Board members, the Nominees believe they can effect
positive change at the Company.
Mr. Icahn has an interest in the election of directors at the Annual
Meeting indirectly through the beneficial ownership of securities, as further
described in Annex A. Dr. Stephen Burakoff, Dr. Alexander J. Denner and Dr.
Richard Mulligan are each party to a Nominee Agreement, substantially in the
form attached hereto as Annex B, pursuant to which the Icahn Parties have agreed
to pay certain fees to each such Nominee (other than Dr. Denner) and to
indemnify each such Nominee with respect to certain costs incurred by each such
Nominee in connection with the proxy contest relating to the Annual Meeting.
Except as disclosed in this Proxy Statement, including the Annexes attached
hereto and as provided in the Nominee Agreement (which, among other things,
provides for a payment to Dr. Stephen Burakoff and Dr. Richard Mulligan of
$25,000), none of the Nominees will receive any compensation from any of the
Participants or any of their affiliates in connection with this proxy
solicitation. Dr. Stephen Burakoff and Dr. Richard Mulligan have an interest in
the election of directors at the Annual Meeting pursuant to the Nominee
Agreement. Dr. Denner has an interest in the election of directors at the Annual
Meeting indirectly through his capital accounts and other investments in the
Funds.
The Nominees would not be barred from being considered independent under
the independence requirements of The NASDAQ Stock Market, Inc. and the
independence standards applicable to Genzyme under paragraph (a)(1) of Item 407
of Regulation S-K under the Securities Exchange Act of 1934, as amended.
DR. STEPHEN BURAKOFF, age 67
Dr. Steven Burakoff's principal occupation is serving as Professor of
Medicine, Hematology and Medical Oncology at the Mount Sinai School of Medicine
and director of the Tisch Cancer Institute at the Mount Sinai Medical Center,
since 2007. Prior to his appointment at Mount Sinai, Dr. Burakoff was the Laura
and Isaac Perlmutter Professor, New York University School of Medicine;
Director, New York University Cancer Institute; and Director, Skirball Institute
of Biomolecular Medicine, New York University School of Medicine, from 2000 to
2007. Previously, Dr. Burakoff was Chair of Pediatric Oncology at the
Dana-Farber Cancer Institute; the Margaret M. Dyson Professor of Pediatrics at
the Harvard Medical School, and also received an Honorary Master's of Science
Degree from Harvard University. He was the recipient of the first Harvard
Medical School Excellence in Mentoring Award. He was also the Ted Williams
Senior Investigator at the Dana-Farber Cancer Institute, and he also served as a
member of the Board of Trustees of the Dana-Farber Cancer Institute. Dr.
Burakoff serves as a member of the External Advisory Committee at: the Cold
Spring Harbor Laboratory Cancer Center, the Baylor Medical School Cancer Center,
and the Cancer Center of the University of Massachusetts Medical School, the
Albert Einstein College of Medicine Cancer Center and the St. Jude's Cancer
Center. Dr. Burakoff holds memberships in many professional societies and
organizations, including: Alpha Omega Alpha, the American Society of Clinical
Investigation, and the Association of American Physicians, and the American
Association of Immunologist where he serves as Secretary-Treasurer. He has been
an Editor and Associate Editor for numerous journals and author of more than 300
publications in peer-reviewed journals. On May 11, 2009, Dr. Burakoff received
the American Association of Immunologists Lifetime Achievement Award. On
September 22, 2009, Dr. Burakoff received the Lillian and Henry M. Stratton
Professor of Cancer Medicine endowed professorship from the Mount Sinai School
of Medicine. Since 2009, Dr. Burakoff has served as a director of Ligand
Pharmaceuticals Incorporated, a publicly traded royalty-driven biotechnology
company and from 2005 through 2008 served as a director of Pharmacopeia, a
publicly traded biopharmaceutical company which was then acquired by Ligand.
Dr. Burakoff graduated from Lehigh University with a Bachelor of Science
degree, received his Master's degree from Queens College, and his M.D. from
Albany Medical College. Dr. Burakoff's business address is Tisch Cancer
Institute, Mount Sinai School of Medicine, One Gustave L. Levy Place, New York,
New York 10029.
Dr. Burakoff is a highly accomplished research oncologist. Based upon Dr.
Burakoff's medical background and education, the Icahn Parties believe that Dr.
Burakoff has the requisite set of skills to serve as a Board member of Genzyme.
DR. ALEXANDER J. DENNER, age 40
Dr. Denner's principal occupation is serving as Managing Director of
entities affiliated with Carl C. Icahn, including Icahn Partners, Icahn Master,
Icahn Master II and Icahn Master III. Icahn Partners, Icahn Master, Icahn Master
II and Icahn Master III are private investment funds. Dr. Denner has served in
this position since August 2006. Dr. Denner's previous employment was serving as
a portfolio manager specializing in healthcare investments for Viking Global
Investors from April 2005 to May 2006. Previously, he served in a variety of
roles at Morgan Stanley, beginning in 1996, including as portfolio manager of
healthcare and biotechnology mutual funds. Dr. Denner was the chairman of the
Executive Committee of the Board of Directors of ImClone Systems Incorporated, a
publicly traded biopharmaceutical company, and a director of ImClone Systems
Incorporated from April 2006 until the company was purchased in December 2008.
He served on the Board of Adventrx Pharmaceuticals Inc., a publicly traded
biopharmaceutical company from October 2006 to October 2009. In addition, Dr.
Denner has served as a director of Biogen Idec Pharmaceuticals, a publicly
traded biopharmaceutical company from June, 2009 until the present, as a
director of Amylin Pharmaceuticals, Inc., a publicly traded biopharmaceutical
company since June 2009, as a director of Enzon Pharmaceuticals, a publicly
traded biopharmaceutical company from May 2009 until the present, and as
Chairman of the Board of Directors of Enzon Pharmaceuticals from July, 2009
until the present. Dr. Denner received his S.B. degree from the Massachusetts
Institute of Technology and his M.S., M.Phil., and Ph.D. degrees from Yale
University. The business address of Dr. Denner is c/o Icahn Associates Corp, 767
Fifth Avenue, Suite 4700, New York, NY 10153.
Based upon Dr. Denner's experience of overseeing the operations, research
and development of biopharmaceutical companies; service on boards of
biopharmaceutical companies; financial background, including with respect to
biotechnology companies; and education, the Icahn Parties believe that Dr.
Denner has the requisite set of skills to serve as a Board member of Genzyme.
MR. CARL C. ICAHN, age 74
Carl C. Icahn has served as chairman of the board and a director of
Starfire Holding Corporation ("Starfire"), a privately-held holding company, and
chairman of the board and a director of various subsidiaries of Starfire, since
1984. Since August 2007, through his position as Chief Executive Officer of
Icahn Capital LP, a wholly-owned subsidiary of Icahn Enterprises L.P. ("Icahn
Enterprises"), and certain related entities, Mr. Icahn's principal occupation is
managing private investment funds, including Icahn Partners LP, Icahn Partners
Master Fund LP, Icahn Partners Master Fund II LP, and Icahn Partners Master Fund
III LP. From November 2004 to August 2007, Mr. Icahn conducted this occupation
through his entities CCI Onshore Corp. and CCI Offshore Corp. Since November
1990, Mr. Icahn has been chairman of the board of Icahn Enterprises G.P. Inc.,
the general partner of Icahn Enterprises. Icahn Enterprises is a diversified
holding company engaged in a variety of businesses, including investment
management, metals, automotive, real estate, railcar, food/packaging, casino
gaming and home fashion. In March 2010, Mr. Icahn was appointed Chairman of the
Board of Tropicana Entertainment Inc., which owns and operates a diversified,
multi-jurisdictional collection of casino gaming properties. Mr. Icahn was
chairman of the board and president of Icahn & Co., Inc., a registered
broker-dealer and a member of the National Association of Securities Dealers,
from 1968 to 2005. Mr. Icahn has served as chairman of the board and as a
director of American Railcar Industries, Inc., a company that is primarily
engaged in the business of manufacturing covered hopper and tank railcars, since
1994. From October 1998 through May 2004, Mr. Icahn was the president and a
director of Stratosphere Corporation, the owner and operator of the Stratosphere
Hotel and Casino in Las Vegas, which, until February 2008, was a subsidiary of
Icahn Enterprises. From September 2000 to February 2007, Mr. Icahn served as the
chairman of the board of GB Holdings, Inc., which owned an interest in Atlantic
Coast Holdings, Inc., the owner and operator of The Sands casino in Atlantic
City until November 2006. From September 2006 to November 2008, Mr. Icahn was a
director of ImClone Systems Incorporated ("ImClone"), a biopharmaceutical
company, and from October 2006 to November 2008, he was the chairman of the
board of ImClone. Mr. Icahn has been chairman of the board and a director of XO
Holdings, Inc., a telecommunications services provider, since February 2006, and
of its predecessor from January 2003 to February 2006. Mr. Icahn has served as a
director of Cadus Corporation, a company engaged in the ownership and licensing
of yeast-based drug discovery technologies since July 1993. From May 2005 to
January 2010, Mr. Icahn served as a director of Blockbuster Inc., a provider of
in-home movie rental and game entertainment. In October 2005, Mr. Icahn became a
director of WestPoint International, Inc., a manufacturer of bed and bath home
fashion products. From August 2007 to September 2009, Mr. Icahn was a director
of WCI Communities, Inc., a homebuilding company. In December 2007, Mr. Icahn
became a director of Federal-Mogul Corporation ("Federal-Mogul"), a supplier of
automotive products, and since January 2008, has been the chairman of the board
of Federal-Mogul. From August 2008 to October 2009, Mr. Icahn was a director of
Yahoo! Inc., a company that provides Internet services to users, advertisers,
publishers and developers worldwide. Mr. Icahn received his B.A. from Princeton
University. The business address of Mr. Icahn is c/o Icahn Capital LP, 767 Fifth
Avenue, Suite 4700, New York, NY 10153.
Mr. Icahn is internationally recognized as a leading financier and is
generally known for his financial acumen. Mr. Icahn has had a long career of
serving on boards of many companies and his focus on various means of enhancing
shareholder value for those companies. Based upon Mr. Icahn's financial
experience and expertise, the Icahn Parties believe that Mr. Icahn has the
requisite set of skills to serve as a Board member of Genzyme.
DR. RICHARD MULLIGAN, age 55
Dr. Mulligan's principal occupation is serving as the Mallinckrodt
Professor of Genetics at Harvard Medical School, and Director of the Harvard
Gene Therapy Initiative. Professor Mulligan received his B.S. degree from the
Massachusetts Institute of Technology, and his Ph.D. from the Department of
Biochemistry at Stanford University School of Medicine. After receiving
postdoctoral training at the Center for Cancer Research at MIT, Professor
Mulligan joined the MIT faculty and subsequently was appointed Professor of
Molecular Biology and Member of the Whitehead Institute for Biomedical Research
before moving to Children's Hospital and Harvard in 1996. His honors include the
MacArthur Foundation Prize, the Rhodes Memorial Award of the American
Association for Cancer Research, the ASMB-Amgen Award, and the Nagai Foundation
International Prize.
Dr. Mulligan served as a director of ImClone System Incorporated, a
publicly traded biopharmaceutical company, from September 2006 until November
2008, and as a member of Scientific Advisory Board and Executive Committee. In
addition, Dr. Mulligan has served as a director of Biogen Idec Pharmaceuticals,
a publicly traded biopharmaceutical company from June 2009 until the present, as
a director of Enzon Pharmaceuticals, a publicly traded biopharmaceutical company
from May 2009 until the present, and as a director of Cellectis SA, a
biotechnology company which specializes in genome engineering, since 2007. He
has also served on the National Institutes of Health's Recombinant DNA Advisory
Committee and on the U.S. Food and Drug Administration Biological Response
Modifiers Advisory Committee. Dr. Mulligan's business address is Harvard
Institutes of Medicine Rm 407, 4 Blackfan Circle, Boston, Massachusetts 02115.
Based upon Dr. Mulligan's expertise in genetics and gene therapy;
experience in overseeing the operations, research and development of
biopharmaceutical companies; service on boards of biotechnology and/or
biopharmaceutical companies; and his education, the Icahn Parties believe that
Dr. Mulligan has the requisite set of skills to serve as a Board member of
Genzyme.
Dr. Denner and Mr. Icahn have no prior relationships with Dr. Burakoff. Dr.
Burakoff was a professor at Harvard Medical School during Dr. Mulligan's tenure
at Harvard Medical School.
Drs. Denner and Mulligan currently serve on the Board of Directors of
Biogen Idec Inc. ("Biogen") and Enzon Pharmaceuticals, Inc. ("Enzon"). Drs.
Denner and Mulligan were elected to the Board of Directors of Biogen Idec Inc.
at the 2009 Annual Meeting of Stockholders following their nomination by
entities affiliated with Mr. Icahn. In January 2009, representatives of Mr.
Icahn and his affiliated entities, suggested Drs. Denner and Mulligan as
potential directors to the Board of Directors of Enzon. Drs. Denner and Mulligan
were subsequently nominated on Enzon's board slate of directors and elected at
the 2009 Annual Meeting of Stockholders.
Drs. Denner, Mulligan and Mr. Icahn served together on the Board of
Directors of ImClone Systems Incorporated ("ImClone"). Following discussions in
April 2006 between ImClone and Mr. Icahn, a then stockholder of ImClone, Dr.
Denner, who was not then employed by affiliated entities of Mr. Icahn, was
appointed to the Board of ImClone. In August 2006, representatives of ImClone
offered to nominate on management's slate of directors, Mr. Icahn, Dr. Denner,
then an employee of entities affiliated with Mr. Icahn, and two persons
recommended to ImClone by Mr. Icahn, including Dr. Richard Mulligan, and all of
such nominees were subsequently elected at the 2006 Annual Meeting of
Stockholders.
As disclosed in this Proxy Statement, Drs. Denner and Mulligan currently
serve on the Board of Directors of Biogen. The Icahn Parties have considered the
applicability of Section 8 of the Clayton Act, which includes a statutory
prohibition on interlocking directorates between competing corporations, and
although there can be no assurances, the Icahn Parties believe that the
prohibitions thereunder are not applicable because Biogen and the Company would
not now be deemed competitors within the meaning of Section 8 of the Clayton Act
based upon the assumption made by the Icahn Parties, which they believe to be
reasonable, that sales of drugs by Genzyme and Biogen which might be considered
as competing were de minimus, as defined with respect Section 8 of the Clayton
Act, during 2009.
The Icahn Parties do not believe a conflict of interest arises from having
membership on the Board of Directors of Biogen and Genzyme. The Nominees are
aware that if elected they will have fiduciary obligations to Genzyme regardless
of any other affiliations. The Nominees intend to fulfill their distinct
fiduciary obligations to each entity on whose board they serve. Additionally, to
the extent there are conflicts, the Nominees intend to take measures to
otherwise alleviate the conflict including, if necessary, recusal with respect
to the specific conflict.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF DR. STEPHEN BURAKOFF, DR.
ALEXANDER J. DENNER, MR. CARL C. ICAHN AND DR. RICHARD MULLIGAN BY MARKING,
SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY CARD IN THE POSTAGE PAID
ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT OR BY USING THE GOLD PROXY
CARD TO VOTE BY TELEPHONE OR INTERNET. IF YOU HAVE SIGNED THE GOLD PROXY CARD
AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL
THE SHARES OF COMMON STOCK REPRESENTED BY THE GOLD PROXY CARD FOR THE ELECTION
DR. STEPHEN BURAKOFF, DR. ALEXANDER J. DENNER, MR. CARL C. ICAHN AND DR. RICHARD
MULLIGAN AND THE GENZYME NOMINEES OTHER THAN [ ].
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Genzyme's Proxy Statement, Genzyme is soliciting proxies with
respect to five other proposals. Please refer to Genzyme's Proxy Statement for a
detailed discussion of these proposals, including various arguments in favor of
and against such proposals. These proposals are outlined below. IF YOU HAVE
SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE
GIVEN A DIRECTION TO VOTE ALL OF THE SHARES OF COMMON STOCK REPRESENTED BY YOUR
GOLD PROXY CARD [ ] PROPOSALS [ ] LISTED BELOW.
PROPOSAL 2 -- PROPOSAL TO AMEND 2004 EQUITY INCENTIVE PLAN
According to the Company's 2010 Definitive Proxy Statement, the Company
will also solicit proxies with respect to a proposal for Shareholders to approve
an increase of 2,750,000 shares available for issuance under the 2004 Equity
Incentive Plan. Please refer to the Company's 2010 Definitive Proxy Statement
for a discussion of such proposal. The Participants intend to vote, and
recommend that you vote, [ ] this proposal.
PROPOSAL 3 -- PROPOSAL TO AMEND 2009 EMPLOYEE STOCK PURCHASE PLAN
According to the Company's 2010 Definitive Proxy Statement, the Company
will also solicit proxies with respect to a proposal for Shareholders to approve
an increase of 1,500,000 shares under the 2009 Employee Stock Purchase Plan.
Please refer to the Company's 2010 Definitive Proxy Statement for a discussion
of such proposal. The Participants intend to vote, and recommend that you vote,
[ ] this proposal.
PROPOSAL 4 -- PROPOSAL TO AMEND 2007 DIRECTOR EQUITY PLAN
According to the Company's 2010 Definitive Proxy Statement, the Company
will also solicit proxies with respect to a proposal for Shareholders to approve
the increase of 250,000 shares available for issuance under the 2007 Director
Equity Plan. Please refer to the Company's 2010 Definitive Proxy Statement for a
discussion of such proposal. The Participants intend to vote, and recommend that
you vote, [ ] this proposal.
PROPOSAL 5 -- PROPOSAL TO AMEND AND RESTATE OUR CHARTER
According to the Company's 2010 Definitive Proxy Statement, the Company
will also solicit proxies with respect to a proposal for Shareholders to approve
an amendment to the Company's Restated Articles of Organization to reduce to 40%
the percentage of shares required for Shareholders to call a special meeting of
Shareholders. Please refer to the Company's 2010 Definitive Proxy Statement for
a discussion of such proposal. The Participants intend to vote, and recommend
that you vote, [ ] this proposal.
PROPOSAL 6 -- PROPOSAL TO RATIFY SELECTION OF AUDITORS
According to the Company's 2010 Definitive Proxy Statement, the Company
will also solicit proxies to ratify the selection of PricewaterhouseCoopers LLP
to serve as the auditors for the fiscal year ending December 31, 2010. Please
refer to the Company's 2010 Definitive Proxy Statement for a discussion of such
proposal. The Participants intend to vote, and recommend that you vote, [ ] this
proposal.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be
presented at the Annual Meeting. If any other matters should properly come
before the Annual Meeting, it is intended that the persons named on the enclosed
GOLD proxy card will vote that proxy on such other matters in accordance with
their judgment.
VOTING PROCEDURES
According to Genzyme's Proxy Statement, the Bylaws and applicable law,
holders of shares of Genzyme's Common Stock, at the close of business on the
Record Date are entitled to notice of, and to vote at, the Annual Meeting. Each
share of Common Stock outstanding on the Record Date is entitled to one vote on
each matter presented at the Annual Meeting.
According to Genzyme's Proxy Statement, the Bylaws and applicable law, when
the number of nominees timely nominated for election at an annual meeting
exceeds the number of directors to be elected at the meeting, the election of
directors at such annual meeting is a contested election. In a contested
election directors are elected by a plurality of the votes cast by the holders
of Genzyme's Common Stock at a meeting at which a quorum is present. Plurality
means that the individuals who receive the largest number of votes cast are
elected as directors, up to the maximum number of directors to be chosen at the
meeting. Consequently, any shares of Common Stock not voted (whether by
abstention, broker nonvote or otherwise) have no impact in the election of
directors. A quorum is the presence by person or by proxy of a majority of the
shares of Common Stock issued and outstanding and entitled to vote at the Annual
Meeting. The shares of Common Stock represented by a proxy marked "withhold" or
"abstain" will be considered present at the Annual Meeting for purposes of
determining a quorum.
BROKER NON-VOTES
If you hold your shares of Common Stock through a bank, broker or other
nominee and do not provide voting instructions to the record holder of the
shares of Common Stock, your shares of Common Stock will not be voted on any
proposal on which your broker or nominee does not have discretionary authority
to vote. In this case, a "broker non-vote" occurs. Shares of Common Stock
constituting broker non-votes are not counted or deemed to be present or
represented for the purpose of determining whether shareholders have approved a
matter, but they are counted as present for the purpose of determining a quorum
at the Annual Meeting.
The election of directors at the Annual Meeting is a "non-routine matter"
and brokers do not have discretionary authority to vote your shares of Common
Stock on "non-routine matters." Therefore, unless you provide specific voting
instructions to your broker, your broker will not have discretionary authority
to vote your shares of Common Stock for the election of directors at the Annual
Meeting and your shares of Common Stock will not be voted for the election of
directors. If your shares of Common Stock are held in street name, your broker
or nominee has enclosed a voting instruction card with this Proxy Statement. We
strongly encourage you to vote your shares of Common Stock by following the
instructions provided on the voting instruction card.
According to Genzyme's Proxy Statement, the Bylaws and applicable law, the
affirmative vote of a majority of shares of Common Stock present in person or
represented by proxy at the Annual Meeting and entitled to vote thereon is
required to approve the Amendment to the Restated Articles of Organization.
According to Genzyme's Proxy Statement, the Bylaws and applicable law, the
approval of each of (i) the amendment to the 2004 Equity Incentive Plan; (ii)
the amendment to the 2009 Employee Stock Purchase Plan; (iii) the Amendment to
the 2007 Director Equity Plan; and (iv) the ratification of the selection of the
Independent Registered Accounting Firm require that the number of votes cast in
favor of the proposal exceed the number of votes cast against the proposal.
As explained in the detailed instructions on your GOLD proxy card, there
are four ways you may vote. You may:
1. Sign, date and return the enclosed GOLD proxy card in the
enclosed postage-paid envelope. We recommend that you vote on the GOLD
proxy card even if you plan to attend the Annual Meeting;
2. Vote via the Internet by following the voting instructions on the
GOLD proxy card or the voting instructions provided by your broker,
bank or other holder of record.
3. Vote by telephone by following the voting instructions on the
GOLD proxy card or the instructions provided by your broker, bank or
other holder of record; or
4. Vote in person by attending the Annual Meeting. Written ballots
will be distributed to Shareholders who wish to vote in person at the
Annual Meeting. If you hold your shares of Common Stock through a
bank, broker or other custodian, you must obtain a legal proxy from
such custodian in order to vote in person at the meeting.
To submit a proxy with voting instructions by telephone please call the
telephone number listed on the GOLD proxy card. Proxies may also be submitted
over the Internet. Please refer to the GOLD proxy card for the website
information. In each case Shareholders will be required to provide the unique
control number which has been printed on each Shareholder's GOLD proxy card. In
addition to the instructions that appear on the GOLD proxy card, step-by-step
instructions will be provided by a recorded telephone message for those
Shareholders submitting proxies by telephone, or at the designated website for
those Shareholders submitting proxies over the Internet. Shareholders submitting
their proxies with voting instructions by telephone or over the Internet will
receive confirmation on the telephone that their vote by telephone was
successfully submitted, and may provide an email address for confirmation that
their vote by Internet was successfully submitted.
Whether or not you are able to attend the Annual Meeting, you are urged to
complete the enclosed GOLD proxy and return it in the enclosed self-addressed,
prepaid envelope. All valid proxies received prior to the meeting will be voted.
If you specify a choice with respect to any item by marking the appropriate box
on the proxy, the shares of Common Stock will be voted in accordance with that
specification. IF NO SPECIFICATION IS MADE, THE SHARES OF COMMON STOCK WILL BE
VOTED (I) FOR DR. STEPHEN BURAKOFF FOR DIRECTOR; (II) FOR DR. ALEXANDER J.
DENNER FOR DIRECTOR; (III) FOR MR. CARL C. ICAHN FOR DIRECTOR (IV) FOR DR.
RICHARD MULLIGAN FOR DIRECTOR (V) FOR THE PERSONS WHO HAVE BEEN NOMINATED BY
GENZYME TO SERVE AS DIRECTORS, OTHER THAN [ ]; (VI) [ ] THE AMENDMENT TO THE
2004 EQUITY INCENTIVE PLAN; (VII) [ ] THE AMENDMENT TO THE 2009 EMPLOYEE STOCK
PURCHASE PLAN; (VIII) [ ] THE AMENDMENT TO THE 2007 DIRECTOR EQUITY PLAN; (IX) [
]THE AMENDMENT TO THE RESTATED ARTICLES OF ORGANIZATION; (X) [ ]THE RATIFICATION
OF THE SELECTION OF THE INDEPENDENT REGISTERED ACCOUNTING FIRM; AND (XI) IN THE
PROXY HOLDERS' DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE
ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 347-4750
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550
PROXY PROCEDURES
IN ORDER FOR YOUR VIEWS TO BE REPRESENTED AT THE ANNUAL MEETING, PLEASE
MARK, SIGN, DATE AND RETURN THE ENCLOSED GOLD PROXY CARD IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE OR USE THE GOLD PROXY CARD TO VOTE BY TELEPHONE OR
INTERNET.
The accompanying GOLD proxy card will be voted at the Annual Meeting in
accordance with your instructions on such card.
Only holders of record as of the close of business on the Record Date will
be entitled to vote. If you were a Shareholder of record on the Record Date, you
will retain your voting rights at the Annual Meeting even if you sell such
shares of Common Stock after the Record Date. Accordingly, it is important that
you vote the shares of Common Stock held by you on the Record Date, or grant a
proxy to vote such shares of Common Stock on the GOLD proxy card, even if you
sell such shares of Common Stock after the Record Date.
IF YOUR SHARES OF COMMON STOCK ARE HELD IN THE NAME OF A BROKERAGE FIRM,
BANK, BANK NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE
SUCH SHARES OF COMMON STOCK AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS.
ACCORDINGLY, PLEASE CONTACT THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT
THAT PERSON TO EXECUTE ON YOUR BEHALF THE GOLD PROXY CARD AS SOON AS POSSIBLE.
REVOCATION OF PROXIES
Any Shareholder of record may revoke or change his or her proxy
instructions at any time prior to the vote at the Annual Meeting by:
- submitting a properly executed, subsequently dated GOLD proxy
card that will revoke all prior proxy cards, including any white proxy
cards which you may have submitted to Genzyme;
- instructing the Icahn Parties by telephone or via the Internet as
to how you would like your shares of Common Stock voted (instructions
are on your GOLD proxy card);
- attending the Annual Meeting and withdrawing his or her proxy by
voting in person (although attendance at the Annual Meeting will not
in and of itself constitute revocation of a proxy); or
- delivering written notice of revocation either to the Icahn
Parties c/o D.F. King & Co., Inc., 48 Wall Street, New York, NY 10005,
or the Corporate Secretary of Genzyme.
Although a revocation is effective if delivered to Genzyme, the Icahn
Parties request that either the original or a copy of any revocation be mailed
to the Icahn Parties c/o D.F. King & Co., Inc., 48 Wall Street, New York, NY
10005, so that the Icahn Parties will be aware of all revocations.
IF YOU PREVIOUSLY SIGNED AND RETURNED A WHITE PROXY CARD TO GENZYME, WE
URGE YOU TO REVOKE IT BY (1) MARKING, SIGNING, DATING AND RETURNING THE GOLD
PROXY CARD, (2) INSTRUCTING US BY TELEPHONE OR VIA THE INTERNET AS TO HOW YOU
WOULD LIKE YOUR SHARES OF COMMON STOCK VOTED WITH RESPECT TO THE GOLD PROXY
CARD, (3) ATTENDING THE ANNUAL MEETING AND VOTING IN PERSON OR (4) DELIVERING A
WRITTEN NOTICE OF REVOCATION TO THE ICAHN PARTIES OR TO THE CORPORATE SECRETARY
OF THE COMPANY.
COST AND METHOD OF SOLICITATION
Solicitation of proxies will be made by Mr. Icahn, Drs. Burakoff, Denner,
Ende and Mulligan.
Pursuant to an Agreement dated April 27, 2010, Icahn Capital has retained
D.F. King & Co., Inc. ("D.F. King") to conduct the solicitation, for which D.F.
King is to receive a fee of up to $175,000, plus expenses and a success fee of
up to $175,000. Icahn Capital has agreed to indemnify D.F. King against certain
liabilities and expenses, including certain liabilities under the federal
securities laws. Insofar as indemnification for liabilities arising under the
federal securities laws may be permitted to D.F. King pursuant to the foregoing
provisions, we have been informed that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy and is
therefore unenforceable. Proxies may be solicited by mail, courier services,
Internet, advertising, telephone or telecopier or in person. It is anticipated
that D.F. King will employ up to 100 persons to solicit proxies from Genzyme
Shareholders for the Annual Meeting. The total expenditures in furtherance of,
or in connection with, the solicitation of proxies is approximately to date, and
is estimated to be [ ] in total.
The Icahn Parties will pay all costs associated with this solicitation. The
Icahn Parties do not intend to seek reimbursement for the costs and expenses
associated with the proxy solicitation in the event that any of the Nominees are
elected to the Board of Directors of Genzyme.
ADDITIONAL INFORMATION
Certain information regarding the securities of Genzyme held by Genzyme's
directors, management and 5% Shareholders is contained in Genzyme's Proxy
Statement. Information concerning the date by which proposals of security
holders intended to be presented at the next annual meeting of Shareholders of
Genzyme must be received by Genzyme for inclusion in Genzyme's Proxy Statement
and form of proxy for that meeting is also contained in Genzyme's Proxy
Statement. This information is expected to be contained in Genzyme's public
filings. The Participants take no responsibility for the accuracy or
completeness of such information contained in Genzyme's public filings.
Date: [ ]
DR. STEPHEN BURAKOFF
DR. ALEXANDER J. DENNER
MR. CARL C. ICAHN
DR. RICHARD MULLIGAN
DR. ERIC ENDE
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
ANNEX A
SECURITY OWNERSHIP OF THE PARTICIPANTS
--------------------------------------
(1) TITLE OF (2) NAME OF (3) AMOUNT OF (4) PERCENT OF
CLASS BENEFICIAL BENEFICIAL CLASS (2)
OWNER (1) OWNERSHIP
-------- ---------- ---------- ----------
Common Stock, par High River 2,620,000 0.98%
value $0.01 per
share ("Shares")
Shares Icahn Partners 3,873,541 1.45%
Shares Icahn Master 4,359,306 1.64%
Shares Icahn Master II 1,630,324 0.61%
Shares Icahn Master III 616,829 0.23%
_________________________
(1) Please note that each record holder listed in this table is, as of the date
of this filing, the direct beneficial owner of the Shares set forth under
the heading "(3) Amount of Beneficial Ownership" and that indirect
beneficial ownership of Shares is described below in the text of this Annex
A under the heading "Description of Beneficial Ownership."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the number of Shares stated to be outstanding as of the
Record Date by the Corporation in the Corporation's Definitive Proxy
Statement.
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River. Beckton Corp., a Delaware corporation
("Beckton") is the sole stockholder of Icahn Enterprises G.P. Inc., a Delaware
corporation ("Icahn Enterprises GP"), which is the general partner of Icahn
Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Holdings").
Icahn Holdings is the sole member of IPH GP LLC, a Delaware limited liability
company ("IPH"), which is the general partner of Icahn Capital L.P., a Delaware
limited partnership ("Icahn Capital"). Icahn Capital is the general partner of
each of Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore") and
Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"). Icahn
Onshore is the general partner of Icahn Partners. Icahn Offshore is the general
partner of each of Icahn Master, Icahn Master II and Icahn Master III. Each of
Barberry and Beckton is 100 percent owned by Carl C. Icahn ("Mr. Icahn," and
collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn
Holdings, IPH, Icahn Capital, Icahn Onshore, Icahn Offshore, the "Beneficial
Owners" and each of them a "Beneficial Owner." As such, Mr. Icahn is in a
position indirectly to determine the investment and voting decisions made by
each of the Icahn Parties.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is
White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and
(ii) Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue, 47th Floor,
New York, NY 10153. The address of Icahn Partners is 767 Fifth Avenue, 47th
Floor, New York, NY 10153. The address of Icahn Master is c/o Walkers SPV
Limited, P.O. Box 908GT, 87 Mary Street, George Town, Grand Cayman, Cayman
Islands. The address of Icahn Master II is c/o Walkers SPV Limited, Walker
House, 87 Mary Street, George Town, Grand Cayman KY1-9002, Cayman Islands. The
address of Icahn Master III is c/o Walkers SPV Limited, Walker House, 87 Mary
Street, George Town, Grand Cayman KY1-9002, Cayman Islands. The address of High
River is 767 Fifth Avenue, 47th Floor, New York, NY 10153.
Barberry is primarily engaged in the business of serving as the sole member
of Hopper and investing in securities. Hopper is primarily engaged in the
business of serving as the general partner of High River and investing in
securities. Icahn Offshore is primarily engaged in the business of serving as
the general partner of each of Icahn Master, Icahn Master II and Icahn Master
III. Icahn Onshore is primarily engaged in the business of serving as the
general partner of Icahn Partners. Icahn Capital is primarily engaged in the
business of serving as the general partner of each of Icahn Offshore and Icahn
Onshore. IPH is primarily engaged in the business of serving as the general
partner of Icahn Capital. Icahn Holdings is primarily engaged in the business of
holding direct or indirect interests in various operating businesses. Icahn
Enterprises GP is primarily engaged in the business of serving as the general
partner of each of Icahn Enterprises and Icahn Holdings. Beckton is primarily
engaged in the business of holding the capital stock of Icahn Enterprises GP.
Each of High River, Icahn Master, Icahn Master II, Icahn Master III, Icahn
Partners and High River are primarily engaged in the business of investing in
securities.
The Icahn Parties and Carl C. Icahn may be deemed to beneficially own, in
the aggregate, 13,100,000 Shares, representing approximately 4.92% of the
Corporation's outstanding Shares (based upon the 266,470,351 Shares stated to be
outstanding as of the Record Date by the Corporation in the Corporation's
Definitive Proxy filed with the Securities and Exchange Commission on April 26,
2010).
High River has sole voting power and sole dispositive power with regard to
2,620,000 Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting power
and shared dispositive power with regard to such Shares. Icahn Partners has sole
voting power and sole dispositive power with regard to 3,873,541 Shares. Each of
Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton
and Mr. Icahn has shared voting power and shared dispositive power with regard
to such Shares. Icahn Master has sole voting power and sole dispositive power
with regard to 4,359,306 Shares. Each of Icahn Offshore, Icahn Capital, IPH,
Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting
power and shared dispositive power with regard to such Shares. Icahn Master II
has sole voting power and sole dispositive power with regard to 1,630,324
Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and shared
dispositive power with regard to such Shares. Icahn Master III has sole voting
power and sole dispositive power with regard to 616,829 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn has shared voting power and shared dispositive power with regard to
such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 2,620,000 Shares
which High River directly beneficially owns. Each of Icahn Onshore, Icahn
Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn, by
virtue of their relationships to Icahn Partners, may be deemed to indirectly
beneficially own the 3,873,541 Shares which Icahn Partners directly beneficially
owns. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Master, Icahn Master II and Icahn Master III, may be deemed to indirectly
beneficially own the 6,606,459 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
On January 5, 2001, Reliance Group Holdings, Inc. ("Reliance") commenced an
action in the United States District Court for the Southern District of New York
against Mr. Icahn, Icahn Associates Corp. and High River alleging that High
River's tender offer for Reliance 9% senior notes violated Section 14(e) of the
Exchange Act. Reliance sought a temporary restraining order and preliminary and
permanent injunctive relief to prevent defendants from purchasing the notes. The
Court initially imposed a temporary restraining order. Defendants then
supplemented the tender offer disclosures. The Court conducted a hearing on the
disclosures and other matters raised by Reliance. It then denied plaintiff's
motion for a preliminary injunction and ordered dissolution of its temporary
restraining order following dissemination of the supplement. Reliance took an
immediate appeal to the United States Court of Appeals for the Second Circuit
and sought a stay to restrain defendants from purchasing notes during the
pendency of the appeal. On January 30, 2001, the Court of Appeals denied
plaintiff's stay application. On January 30, Reliance also sought a further
temporary restraining order from the District Court. The Court considered the
matter and reimposed its original restraint until noon the next day, at which
time the restraint was dissolved. The appeal was argued on March 9 and denied on
March 22, 2001.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of any call options, if any, by the Participants and by Mr.
Icahn and his affiliates within the past two years, and the number of shares in
each such purchase and sale.
SHARES PURCHASED/(SOLD)
NAME DATE AND CALL OPTIONS EXERCISED
- ---- ---- ------------------------------
High River 8/19/2009 8,800
High River 8/25/2009 157,475
High River 8/27/2009 16,000
High River 8/28/2009 117,725
High River 8/31/2009 12,600
High River 9/2/2009 7,400
High River 9/8/2009 30,000
High River 9/10/2009 10,000
High River 9/16/2009 2,700
High River 10/1/2009 20,740
High River 10/27/2009 66,000
High River 11/2/2009 30,000
High River 12/21/2009 8,600
High River 12/22/2009 5,000
High River 12/28/2009 1,048,830 (3)
High River 1/28/2010 9,180
High River 2/5/2010 65,400
High River 2/8/2010 4,774
High River 2/9/2010 2,385
High River 2/10/2010 23,792
High River 2/11/2010 25,940
High River 2/12/2010 4,472
High River 2/16/2010 116,000
High River 2/17/2010 116,120
High River 2/18/2010 81,000
High River 2/19/2010 40,000
High River 2/23/2010 20
High River 2/25/2010 12,508
High River 3/4/2010 5,060
High River 3/24/2010 400,000
High River 3/25/2010 171,479
Icahn Partners 8/19/2009 12,050
Icahn Partners 8/25/2009 215,637
Icahn Partners 8/27/2009 21,910
Icahn Partners 8/28/2009 161,204
Icahn Partners 8/31/2009 17,254
Icahn Partners 9/2/2009 11,139
Icahn Partners 9/8/2009 41,175
Icahn Partners 9/10/2009 13,725
Icahn Partners 9/16/2009 3,705
Icahn Partners 10/1/2009 29,874
Icahn Partners 10/27/2009 90,853
Icahn Partners 11/2/2009 74,457
Icahn Partners 12/21/2009 12,380
Icahn Partners 12/22/2009 7,198
Icahn Partners 12/28/2009 1,507,035 (4)
Icahn Partners 2/5/2010 170,634
Icahn Partners 2/8/2010 7,059
Icahn Partners 2/9/2010 3,527
Icahn Partners 2/10/2010 35,182
Icahn Partners 2/11/2010 38,358
Icahn Partners 2/12/2010 6,611
Icahn Partners 2/16/2010 171,528
Icahn Partners 2/17/2010 171,707
Icahn Partners 2/18/2010 118,393
Icahn Partners 2/19/2010 59,120
Icahn Partners 2/23/2010 29
Icahn Partners 2/25/2010 18,487
Icahn Partners 3/4/2010 8,402
Icahn Partners 3/24/2010 591,385
Icahn Partners 3/25/2010 253,523
Icahn Master 8/19/2009 14,837
Icahn Master 8/25/2009 265,515
Icahn Master 8/27/2009 26,977
Icahn Master 8/28/2009 198,493
Icahn Master 8/31/2009 21,244
Icahn Master 9/2/2009 12,682
Icahn Master 9/8/2009 50,601
Icahn Master 9/10/2009 16,868
Icahn Master 9/16/2009 4,554
Icahn Master 10/1/2009 37,434
Icahn Master 10/27/2009 111,736
Icahn Master 11/2/2009 45,543
Icahn Master 11/4/2009 66,921
Icahn Master 11/13/2009 75,664
Icahn Master 11/16/2009 206,077
Icahn Master 11/18/2009 91,658
Icahn Master 12/21/2009 14,720
Icahn Master 12/22/2009 8,559
Icahn Master 1/5/2010 1,369,237 (5)
Icahn Master 2/5/2010 50,688
Icahn Master 2/8/2010 7,945
Icahn Master 2/9/2010 3,969
Icahn Master 2/10/2010 39,595
Icahn Master 2/11/2010 43,168
Icahn Master 2/12/2010 7,441
Icahn Master 2/16/2010 193,041
Icahn Master 2/17/2010 193,240
Icahn Master 2/18/2010 137,241
Icahn Master 2/19/2010 66,615
Icahn Master 2/23/2010 34
Icahn Master 2/25/2010 20,829
Icahn Master 3/4/2010 5,317
Icahn Master 3/24/2010 665,546
Icahn Master 3/25/2010 285,317
Icahn Master II 8/19/2009 6,020
Icahn Master II 8/25/2009 107,728
Icahn Master II 8/27/2009 10,945
Icahn Master II 8/28/2009 80,534
Icahn Master II 8/31/2009 8,621
Icahn Master II 9/2/2009 4,099
Icahn Master II 9/8/2009 20,433
Icahn Master II 9/10/2009 6,809
Icahn Master II 9/16/2009 1,839
Icahn Master II 10/1/2009 11,623
Icahn Master II 10/27/2009 44,516
Icahn Master II 11/4/2009 19,324
Icahn Master II 11/13/2009 27,937
Icahn Master II 11/16/2009 76,091
Icahn Master II 11/18/2009 33,843
Icahn Master II 11/24/2009 44,702
Icahn Master II 11/30/2009 49,668
Icahn Master II 12/3/2009 56,250
Icahn Master II 12/4/2009 27,122
Icahn Master II 12/7/2009 49,222
Icahn Master II 12/8/2009 36,918
Icahn Master II 12/9/2009 37,641
Icahn Master II 12/15/2009 49,223
Icahn Master II 12/16/2009 116,909
Icahn Master II 12/17/2009 12,306
Icahn Master II 12/21/2009 5,291
Icahn Master II 12/22/2009 3,076
Icahn Master II 1/28/2010 27,387
Icahn Master II 2/5/2010 29,014
Icahn Master II 2/8/2010 2,969
Icahn Master II 2/9/2010 1,482
Icahn Master II 2/10/2010 14,794
Icahn Master II 2/11/2010 16,129
Icahn Master II 2/12/2010 2,781
Icahn Master II 2/16/2010 72,128
Icahn Master II 2/17/2010 72,202
Icahn Master II 2/18/2010 49,603
Icahn Master II 2/19/2010 24,856
Icahn Master II 2/23/2010 12
Icahn Master II 2/25/2010 7,773
Icahn Master II 3/4/2010 4,898
Icahn Master II 3/24/2010 248,901
Icahn Master II 3/25/2010 106,705
Icahn Master III 8/19/2009 2,293
Icahn Master III 8/25/2009 41,022
Icahn Master III 8/27/2009 4,168
Icahn Master III 8/28/2009 30,667
Icahn Master III 8/31/2009 3,281
Icahn Master III 9/2/2009 1,680
Icahn Master III 9/8/2009 7,791
Icahn Master III 9/10/2009 2,598
Icahn Master III 9/16/2009 702
Icahn Master III 10/1/2009 4,029
Icahn Master III 10/27/2009 16,895
Icahn Master III 12/21/2009 2,009
Icahn Master III 12/22/2009 1,167
Icahn Master III 12/28/2009 241,572 (6)
Icahn Master III 1/28/2010 9,332
Icahn Master III 2/5/2010 11,264
Icahn Master III 2/8/2010 1,124
Icahn Master III 2/9/2010 563
Icahn Master III 2/10/2010 5,599
Icahn Master III 2/11/2010 6,105
Icahn Master III 2/12/2010 1,053
Icahn Master III 2/16/2010 27,303
Icahn Master III 2/17/2010 27,331
Icahn Master III 2/18/2010 18,763
Icahn Master III 2/19/2010 9,409
Icahn Master III 2/23/2010 5
Icahn Master III 2/25/2010 2,941
Icahn Master III 3/4/2010 1,623
Icahn Master III 3/24/2010 94,168
Icahn Master III 3/25/2010 40,372
_________________________
(3) High River acquired these Shares upon the exercise of call options as
described on Attachment I-A to this Annex A.
(4) Icahn Partners acquired these Shares upon the exercise of call options as
described on Attachment I-A to this Annex A.
(5) Icahn Master acquired these Shares upon the exercise of call options as
described on Attachment I-A to this Annex A.
(6) Icahn Master III acquired these Shares upon the exercise of call options as
described on Attachment I-A to this Annex A.
Shares of Common Stock purchased by each of the Icahn Parties are maintained in
margin accounts that include positions in securities in addition to the shares.
As of April 26, 2010, the indebtedness of the margin account of each of Icahn
Partners, Icahn Master, Icahn Master II, Icahn Master III and High River were
approximately $62,996,468, $83,120,686, $28,174,139, $18,180,300, and
$650,717,210, respectively.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Record Holders, which
were written by UBS AG with a $33.25 strike price and an expiration date of
November 4, 2011, and which provide for physical settlement. These are further
described in the chart set forth below. On December 28, 2009, High River, Icahn
Partners and Icahn Master III and on January 5, 2010, Icahn Master, exercised
all of their respective call options as further described in the chart below.
NUMBER OF SHARES
NAME DATE SUBJECT TO OPTION PREMIUM
- ---- ---- ----------------- -------
High River 11/04/2009 40,000.00 715,388.00
High River 11/13/2009 45,000.00 781,006.50
High River 11/16/2009 122,560.00 2,036,689.82
High River 11/18/2009 54,512.00 900,091.24
High River 11/24/2009 72,000.00 1,213,646.40
High River 11/30/2009 80,000.00 1,408,896.00
High River 12/02/2009 4,493.00 79,692.34
High River 12/03/2009 95,000.00 1,658,500.50
High River 12/04/2009 44,080.00 737,387.87
High River 12/07/2009 80,000.00 1,325,744.00
High River 12/08/2009 60,000.00 966,522.00
High River 12/09/2009 61,177.00 970,212.16
High River 12/15/2009 80,000.00 1,283,200.00
High River 12/16/2009 190,008.00 3,003,038.44
High River 12/17/2009 20,000.00 305,080.00
Icahn Partners 11/04/2009 66,516.00 1,189,618.71
Icahn Partners 11/13/2009 65,797.00 1,141,952.99
Icahn Partners 11/16/2009 179,202.00 2,977,960.92
Icahn Partners 11/18/2009 79,706.00 1,316,089.53
Icahn Partners 11/24/2009 105,273.00 1,774,502.74
Icahn Partners 11/30/2009 116,973.00 2,060,034.90
Icahn Partners 12/03/2009 123,029.00 2,147,827.98
Icahn Partners 12/04/2009 63,456.00 1,061,517.35
Icahn Partners 12/07/2009 115,164.00 1,908,474.78
Icahn Partners 12/08/2009 86,372.00 1,391,340.64
Icahn Partners 12/09/2009 88,067.00 1,396,663.36
Icahn Partners 12/15/2009 115,164.00 1,847,230.56
Icahn Partners 12/16/2009 273,527.00 4,323,039.53
Icahn Partners 12/17/2009 28,789.00 439,147.41
Icahn Master 11/24/2009 121,064.00 2,040,679.00
Icahn Master 11/30/2009 134,514.00 2,368,952.96
Icahn Master 12/02/2009 17,972.00 318,769.36
Icahn Master 12/03/2009 179,438.00 3,132,610.66
Icahn Master 12/04/2009 75,454.00 1,262,224.69
Icahn Master 12/07/2009 136,942.00 2,269,375.44
Icahn Master 12/08/2009 102,706.00 1,654,460.14
Icahn Master 12/09/2009 104,720.00 1,660,764.95
Icahn Master 12/15/2009 136,941.00 2,196,533.64
Icahn Master 12/16/2009 325,249.00 5,140,495.40
Icahn Master 12/17/2009 34,237.00 522,251.20
Icahn Master III 11/04/2009 7,239.00 129,467.34
Icahn Master III 11/13/2009 10,602.00 184,005.13
Icahn Master III 11/16/2009 28,870.00 479,758.77
Icahn Master III 11/18/2009 12,841.00 212,028.02
Icahn Master III 11/24/2009 16,961.00 285,898.01
Icahn Master III 11/30/2009 18,845.00 331,883.06
Icahn Master III 12/03/2009 21,283.00 371,556.49
Icahn Master III 12/04/2009 10,288.00 172,101.78
Icahn Master III 12/07/2009 18,672.00 309,428.65
Icahn Master III 12/08/2009 14,004.00 225,586.23
Icahn Master III 12/09/2009 14,279.00 226,452.09
Icahn Master III 12/15/2009 18,672.00 299,498.88
Icahn Master III 12/16/2009 44,348.00 700,911.27
Icahn Master III 12/17/2009 4,668.00 71,205.67
ANNEX A
ATTACHMENT 1-B
The following are European put options which were written by the Record Holders
to UBS AG and have a $33.25 strike price and an expiration date of November 4,
2011, and provide for cash settlement only and are further described in the
chart set forth below. On December 28, 2009, High River, Icahn Partners and
Icahn Master III and on January 5, 2010, Icahn Master, exercised all of the call
options described in Annex A Attachment 1-A, and upon exercise of the call
options, all of the put options described below expired pursuant to their terms.
NAME DATE QUANTITY OPTION PREMIUM ($)
- ---- ---- -------- ------------------
High River 11/04/2009 40,000.00 7,153.88
High River 11/13/2009 45,000.00 7,810.07
High River 11/16/2009 122,560.00 20,366.90
High River 11/18/2009 54,512.00 9,000.91
High River 11/24/2009 72,000.00 12,136.46
High River 11/30/2009 80,000.00 14,088.96
High River 12/02/2009 4,493.00 796.92
High River 12/03/2009 95,000.00 16,585.01
High River 12/04/2009 44,080.00 7,373.88
High River 12/07/2009 80,000.00 13,257.44
High River 12/08/2009 60,000.00 9,665.22
High River 12/09/2009 61,177.00 9,702.12
High River 12/15/2009 80,000.00 12,832.00
High River 12/16/2009 190,008.00 30,030.38
High River 12/17/2009 20,000.00 3,050.80
Icahn Partners 11/04/2009 66,516.00 11,896.19
Icahn Partners 11/13/2009 65,797.00 11,419.53
Icahn Partners 11/16/2009 179,202.00 29,779.61
Icahn Partners 11/18/2009 79,706.00 13,160.90
Icahn Partners 11/24/2009 105,273.00 17,745.03
Icahn Partners 11/30/2009 116,973.00 20,600.35
Icahn Partners 12/03/2009 123,029.00 21,478.28
Icahn Partners 12/04/2009 63,456.00 10,615.17
Icahn Partners 12/07/2009 115,164.00 19,084.75
Icahn Partners 12/08/2009 86,372.00 13,913.41
Icahn Partners 12/09/2009 88,067.00 13,966.63
Icahn Partners 12/15/2009 115,164.00 18,472.31
Icahn Partners 12/16/2009 273,527.00 43,230.40
Icahn Partners 12/17/2009 28,789.00 4,391.47
Icahn Master 11/24/2009 121,064.00 20,406.79
Icahn Master 11/30/2009 134,514.00 23,689.53
Icahn Master 12/02/2009 17,972.00 3,187.69
Icahn Master 12/03/2009 179,438.00 31,326.11
Icahn Master 12/04/2009 75,454.00 12,622.25
Icahn Master 12/07/2009 136,942.00 22,693.75
Icahn Master 12/08/2009 102,706.00 16,544.60
Icahn Master 12/09/2009 104,720.00 16,607.65
Icahn Master 12/15/2009 136,941.00 21,965.34
Icahn Master 12/16/2009 325,249.00 51,404.95
Icahn Master 12/17/2009 34,237.00 5,222.51
Icahn Master III 11/04/2009 7,239.00 1,294.67
Icahn Master III 11/13/2009 10,602.00 1,840.05
Icahn Master III 11/16/2009 28,870.00 4,797.59
Icahn Master III 11/18/2009 12,841.00 2,120.28
Icahn Master III 11/24/2009 16,961.00 2,858.98
Icahn Master III 11/30/2009 18,845.00 3,318.83
Icahn Master III 12/03/2009 21,283.00 3,715.56
Icahn Master III 12/04/2009 10,288.00 1,721.02
Icahn Master III 12/07/2009 18,672.00 3,094.29
Icahn Master III 12/08/2009 14,004.00 2,255.86
Icahn Master III 12/09/2009 14,279.00 2,264.52
Icahn Master III 12/15/2009 18,672.00 2,994.99
Icahn Master III 12/16/2009 44,348.00 7,009.11
Icahn Master III 12/17/2009 4,668.00 712.06
ANNEX B
[FORM OF NOMINEE AGREEMENT]
HIGH RIVER LIMITED PARTNERSHIP
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
FEBRUARY 17, 2010
Dear ___________:
This will confirm our understanding as follows:
You agree that you are willing, should we so elect, to become a member of a
slate of nominees (the "Slate") to stand for election as directors of Genzyme
Corporation ("Genzyme") in connection with a proxy contest with management of
Genzyme in respect of the election of directors of Genzyme at the 2010 Annual
Meeting of Shareholders of Genzyme (the "Annual Meeting"), expected to be held
in the Spring of 2010, or a special meeting of shareholders of Genzyme called
for a similar purpose (the "Proxy Contest").
High River Limited Partnership, Icahn Partners LP, Icahn Partners Master
Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP
(collectively, "Icahn"), agree to pay the costs of the Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the SEC,
which indicates that Icahn intends to nominate you for election at the Annual
Meeting, you will be entitled to be paid $25,000 by Icahn unless you are elected
to serve as a director of Genzyme at the Annual Meeting or a special meeting of
shareholders of Genzyme called for a similar purpose or in connection with a
settlement of the Proxy Contest by Icahn and Genzyme, in which case you will not
receive any payment from Icahn in connection with the Proxy Contest. Payment to
you pursuant to this paragraph, if any, will be made by Icahn, subject to the
terms hereof, upon the earliest of (i) the certification of the results of the
election in respect of the Proxy Contest, (ii) the settlement of the Proxy
Contest by Icahn and Genzyme, or (iii) the withdrawal of the Proxy Contest by
Icahn. (7)
You understand that it may be difficult, if not impossible, to replace
nominees who, such as yourself, have agreed to serve on the Slate and later
change their minds and determine not to seek election. Accordingly, the Slate is
relying upon your agreement to seek election. In that connection, you are being
supplied with a questionnaire in which you will provide Icahn with information
necessary for Icahn to make appropriate disclosure both to Genzyme and for use
in creating the proxy material to be sent to shareholders of Genzyme and to be
filed with the Securities and Exchange Commission. You have agreed that (i) you
will immediately complete and sign the questionnaire and return it to Tara L.
Keating, Assistant General Counsel, Icahn Enterprises LP, 767 Fifth Avenue,
Suite 4700, New York, NY 10153, Tel: (212) 702-4365, Fax: (212) 688-1158, Email:
tkeating@sfire.com and (ii) your responses to the questions contained therein
will be true and correct in all respects. In addition, you have agreed that,
concurrently with your execution of this letter, you will execute the attached
instrument directed to Genzyme informing Genzyme that you consent to being
nominated by Icahn for election as a director of Genzyme and, if elected,
consent to serving as a director of Genzyme. Upon being notified that we have
chosen you, we may forward that consent and your completed questionnaire (or
summaries thereof) to Genzyme.
________________________
(7) This paragraph is not contained in Dr. Denner's Nominee Agreement.
Icahn hereby agrees that, so long as you actually serve on the Slate, Icahn
will defend, indemnify and hold you harmless from and against any and all
losses, damages, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (including, without limitation, reasonable attorneys' fees, costs,
expenses and disbursements) incurred by you in the event that (i) you become a
party, or are threatened to be made a party, to any civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal thereof
relating solely to your role as a nominee for director of Genzyme on the Slate
(a "Proceeding") or (ii) you are called to testify or give a deposition in any
Proceeding (whether or not you are a party or are threatened to be made a party
to such Proceeding), including, in each case, the advancement to you of all
reasonable attorneys' costs and expenses incurred by you in connection with any
Proceeding. Your right of indemnification hereunder shall continue (i) in the
event that Icahn determines to withdraw the Slate or remove you from the Slate
and (ii) after the election has taken place but only for events which occur
prior to such election and subsequent to the date hereof. Anything to the
contrary herein notwithstanding, Icahn is not indemnifying you for any action
taken by you or on your behalf which occurs prior to the date hereof or
subsequent to the Annual Meeting or such earlier time as you are no longer a
nominee of the Slate for election to Genzyme's Board of Directors or for any
actions taken by you as a director of Genzyme, if you are elected. Nothing
herein shall be construed to provide you an indemnity: (i) in the event you are
found to have engaged in a violation of any provision of state or federal law in
connection with the Proxy Contest unless you demonstrate that your action was
taken in good faith and in a manner you reasonably believed to be in or not
opposed to the best interests of electing the Slate; or (ii) if you acted in a
manner which constitutes gross negligence or willful misconduct. In the event
that you shall make any claim for indemnification hereunder, you shall promptly
notify Icahn in the event of any third-party claims actually made against you or
known by you to be threatened. In addition, with respect to any such claim,
Icahn shall be entitled to control your defense with counsel chosen by Icahn.
Icahn shall not be responsible for any settlement of any claim against you
covered by this indemnity without its prior written consent. However, Icahn may
not enter into any settlement of any such claim without your consent unless such
settlement includes a release of you from any and all liability in respect of
such claim.
Each of us recognizes that should you be elected to the Board of Directors
of Genzyme all of your activities and decisions as a director will be governed
by applicable law and subject to your fiduciary duty to the shareholders of
Genzyme and, as a result, that there is, and can be, no agreement between you
and Icahn which governs the decisions which you will make as a director of
Genzyme.
Should the foregoing agree with your understanding, please so indicate in
the space provided below, whereupon this letter will become a binding agreement
between us.
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as
of the date first above written:
__________________________
Name:
IMPORTANT
---------
1. If your shares of Common Stock are held in your own name, please mark,
date and mail the enclosed GOLD proxy card to our Proxy Solicitor, D.F. King &
Co., Inc., in the postage-paid envelope provided.
2. If your shares of Common Stock are held in the name of a brokerage firm,
bank nominee or other institution, only it can vote such shares of Common Stock
and only upon receipt of your specific instructions. Accordingly, you should
contact the person responsible for your account and give instructions for a GOLD
proxy card to be signed representing your shares of Common Stock.
3. If you have already submitted a white proxy card to Genzyme for the
Annual Meeting, you may change your vote to a vote FOR the election of the
Nominee by marking, signing, dating and returning the enclosed GOLD proxy card
for the Annual Meeting, which must be dated after any proxy you may have
submitted to Genzyme. You may also submit your later-dated proxy by using the
enclosed GOLD proxy card to vote by telephone or by Internet. ONLY YOUR LATEST
DATED PROXY FOR THE ANNUAL MEETING WILL COUNT AT THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
STOCKHOLDERS CALL TOLL-FREE: (800) 347-4750
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
GENZYME CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
JUNE 16, 2010
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY:
DR. STEVEN BURAKOFF, DR. ALEXANDER J. DENNER, MR. CARL C. ICAHN, DR. RICHARD
MULLIGAN, DR. ERIC ENDE, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC,
BARBERRY CORP., ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS
MASTER FUND II LP, ICAHN PARTNERS MASTER FUND III LP, ICAHN ENTERPRISES G.P.
INC., ICAHN ENTERPRISES HOLDINGS L.P., IPH GP LLC, ICAHN CAPITAL L.P., ICAHN
ONSHORE LP, ICAHN OFFSHORE LP AND BECKTON CORP. (THE "PARTICIPANTS")
VOTING CONTROL NUMBER
THERE ARE THREE WAYS TO AUTHORIZE THE PROXIES TO CAST YOUR VOTES
YOUR TELEPHONE OR INTERNET VOTE AUTHORIZES THE NAMED PROXIES TO VOTE
YOUR SHARES IN THE SAME MANNER AS IF YOU HAD RETURNED YOUR PROXY CARD.
WE ENCOURAGE YOU TO USE THESE COST EFFECTIVE AND CONVENIENT WAYS OF
VOTING, 24 HOURS A DAY, 7 DAYS A WEEK.
TELEPHONE VOTING INTERNET VOTING VOTING BY MAIL
This method of voting is Visit the Internet voting Simply sign and date
available for residents of Web site at http:// [ ]. your proxy card and
the U.S. and Canada. On a Have this proxy card ready and return it in the
touch tone telephone, call and follow the instructions postage-paid envelope
TOLL FREE [ ], 24 hours a on your screen. You will to [ ]. If you are
day, 7 days a week. Have incur only your usual voting by telephone
this proxy card ready, then Internet charges. Available or the Internet,
follow the prerecorded 24 hours a day, 7 days a please do not mail
instructions. Your vote week until [ ] p.m. your proxy card.
will be confirmed and cast Eastern Daylight Time on
as you have directed. [ ] 2010.
Available 24 hours a day, 7
days a week until [ ] p.m.
Eastern Daylight Time on
[ ] , 2010.
DETACH BELOW AND RETURN USING THE ENVELOPE
PROVIDED ONLY IF YOU ARE VOTING BY MAIL.
YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL, MUST BE
RECEIVED NO LATER THAN [ ] TO BE INCLUDED IN THE VOTING RESULTS.
DETACH HERE
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
GENZYME CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
JUNE 16, 2010
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY:
DR. STEVEN BURAKOFF, DR. ALEXANDER J. DENNER, MR. CARL C. ICAHN, DR. RICHARD
MULLIGAN, DR. ERIC ENDE, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS
LLC,BARBERRY CORP., ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN
PARTNERS MASTER FUND II LP, ICAHN PARTNERS MASTER FUND III LP, ICAHN ENTERPRISES
G.P. INC., ICAHN ENTERPRISES HOLDINGS L.P., IPH GP LLC, ICAHN CAPITAL L.P.,
ICAHN ONSHORE LP, ICAHN OFFSHORE LP AND BECKTON CORP. (THE "PARTICIPANTS")
The undersigned hereby appoints and constitutes each of Alexander J. Denner and
[ ] (acting alone or together) as proxies, with full power of substitution in
each, to represent the undersigned at the Annual Meeting of Shareholders of
Genzyme Corporation ("Genzyme") to be held on June 16, 2010 at 9 a.m. local time
at the American Academy of Arts and Sciences, 136 Irving Street, Cambridge,
Massachusetts, and at any adjournment or postponement or continuations thereof
(the "Annual Meeting"), hereby revoking any proxies previously given, to vote
all shares of Common Stock of Genzyme held or owned by the undersigned as
directed below, and in their discretion upon such other matters as may come
before the meeting (provided, however, that the persons named above will be
permitted to use such discretionary authority only for matters which they do not
know, a reasonable time before the solicitation, are to be presented at the
meeting).
IF NO DIRECTION IS MADE, THE PERSONS NAMED IN THIS GOLD PROXY CARD
WILL VOTE YOUR SHARES: (I) FOR DR. STEPHEN BURAKOFF FOR DIRECTOR; (II) FOR
DR. ALEXANDER J. DENNER FOR DIRECTOR; (III) FOR MR. CARL C. ICAHN FOR
DIRECTOR (IV) FOR DR. RICHARD MULLIGAN FOR DIRECTOR (V) FOR THE PERSONS WHO
HAVE BEEN NOMINATED BY GENZYME TO SERVE AS DIRECTORS, OTHER THAN [ ]; (VI)
[ ] THE AMENDMENT TO THE 2004 EQUITY INCENTIVE PLAN; (VII) [ ] THE
AMENDMENT TO THE 2009 EMPLOYEE STOCK PURCHASE PLAN; (VIII) [ ] THE
AMENDMENT TO THE 2007 DIRECTOR EQUITY PLAN; (IX) [ ]THE AMENDMENT TO THE
RESTATED ARTICLES OF ORGANIZATION; (X) [ ]THE RATIFICATION OF THE SELECTION
OF THE INDEPENDENT REGISTERED ACCOUNTING FIRM; AND (XI) IN THE PROXY
HOLDERS' DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE
ANNUAL MEETING.
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/GENZYME.
SIGN, DATE AND MAIL YOUR PROXY TODAY UNLESS YOU HAVE VOTED BY TELEPHONE OR BY
INTERNET, (CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
IF YOU HAVE NOT VOTED BY INTERNET OR TELEPHONE, PLEASE DATE, MARK, SIGN AND
RETURN THIS PROXY PROMPTLY. YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL,
MUST BE RECEIVED NO LATER THAN [ ] TO BE INCLUDED IN THE VOTING RESULTS.
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
THE PARTICIPANTS RECOMMEND A VOTE "FOR" THE ELECTION OF THE NOMINEES LISTED IN
PROPOSAL 1 BELOW AND PROPOSALS [ ].
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) Dr. Steven Burakoff FOR ALL WITHHELD FROM FOR ALL
(02) Dr. Alexander J. Denner NOMINEES ALL NOMINEES EXCEPT
(03) Mr. Carl C. Icahn
(04) Dr. Richard Mulligan
The persons who have been nominated by Genzyme to serve as directors, [ ].
The Participants are NOT seeking authority to vote for and WILL NOT
exercise any authority to vote for [ ]. There is no assurance that any of
the Genzyme nominees, will serve as directors if any or all of the Nominees
are elected to the Board. You should refer to the proxy statement and form
of proxy distributed Genzyme for the names, background, qualifications and
other information concerning Genzyme nominees.
NOTE: IF YOU DO NOT WISH YOUR SHARES VOTED "FOR" A PARTICULAR NOMINEE,
MARK THE "FOR ALL EXCEPT" BOX AND WRITE THE NAME(S) OF THE NOMINEE(S) YOU
DO NOT SUPPORT ON THE LINE BELOW. YOU MAY ALSO WITHHOLD AUTHORITY TO VOTE
FOR THE PERSONS WHO HAVE BEEN NOMINATED BY GENZYME TO SERVE AS DIRECTORS
OTHER THAN [ ] BY WRITING THE NAMES OF SUCH NOMINEES BELOW. YOUR SHARES
WILL THEN BE VOTED FOR THE REMAINING NOMINEE(S).
___________________________________________________________________________
2. A proposal to amend the 2004 Equity [ ] [ ] [ ]
Incentive Plan to increase the number FOR AGAINST ABSTAIN
of shares of common stock available
for issuance under the plan by
2,750,000 shares.
3. A proposal to amend the 2009 Employee [ ] [ ] [ ]
Stock Purchase Plan to increase the FOR AGAINST ABSTAIN
number of shares of common stock under
the plan by 1,500,000.
4. A proposal to amend the 2007 Director [ ] [ ] [ ]
Equity Plan to increase the number of FOR AGAINST ABSTAIN
shares of common stock available for
issuance under the plan by 250,000
shares.
5. A proposal to amend the Restated [ ] [ ] [ ]
Articles of Organization to reduce the FOR AGAINST ABSTAIN
percentage of shares required for
shareholders to call a special meeting
of shareholders from 90% to 40%.
6. A proposal to ratify the audit committee's [ ] [ ] [ ]
selection of independent auditors for 2010. FOR AGAINST ABSTAIN
Please be sure to sign and date this Proxy.
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SIGNATURE(S) OF SHAREHOLDER(S) DATE
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SIGNATURE(S) IF HELD JOINTLY DATE
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TITLE, IF ANY