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 ss. 240.14a-12
Yahoo! Inc.
(Name of Registrant as Specified In Its Charter)
Carl C. Icahn
Keith A. Meister
Lucian A. Bebchuk
Frank J. Biondi, Jr.
John H. Chapple
Mark Cuban
Adam Dell
Edward H. Meyer
Brian S. Posner
Robert K. Shaye
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital L.P.
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Vincent J. Intrieri
David S. Schechter
Mayu Sris
(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 PROXY
2008 ANNUAL MEETING OF STOCKHOLDERS
OF
YAHOO! INC.
-------------------
PROXY STATEMENT
[PRELIMINARY COPY]
OF
CARL C. ICAHN
KEITH A. MEISTER
LUCIAN A. BEBCHUK
FRANK J. BIONDI, JR.
JOHN H. CHAPPLE
MARK CUBAN
ADAM DELL
EDWARD H. MEYER
BRIAN S. POSNER
ROBERT K. SHAYE
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
ICAHN CAPITAL L.P.
IPH GP LLC
ICAHN ENTERPRISES HOLDINGS L.P.
ICAHN ENTERPRISES G.P. INC.
BECKTON CORP.
VINCENT J. INTRIERI
DAVID S. SCHECHTER
MAYU SRIS
-------------------
To Our Fellow Yahoo Stockholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to stockholders ("Stockholders") of Yahoo! Inc. ("Yahoo") in
connection with the solicitation of proxies by Carl C. Icahn and certain of his
affiliates and associates, to be used at the 2008 Annual Meeting (the "Annual
Meeting") of Stockholders of Yahoo which is scheduled to be held at ____ p.m.,
local time, on July 3, 2008, at _______________________________, and at any
adjournments, postponements or continuations thereof. This Proxy Statement and
the GOLD proxy card are first being furnished to Stockholders on or about June
__, 2008.
At the Annual Meeting, the Participants (as hereinafter defined) will seek
to elect to the Board of Directors of Yahoo - Lucian A. Bebchuk, Frank J.
Biondi, Jr., John H. Chapple, Mark Cuban, Adam Dell, Carl C. Icahn, Keith A.
Meister, Edward H. Meyer, Brian S. Posner and Robert K. Shaye (each a "Nominee",
and collectively, the "Nominees") who has each consented, if elected, to serve
as a director.
LUCIAN A. BEBCHUK, FRANK J. BIONDI, JR., JOHN H. CHAPPLE, MARK CUBAN, ADAM
DELL, CARL C. ICAHN, KEITH A. MEISTER, EDWARD H. MEYER, BRIAN S. POSNER AND
ROBERT K. SHAYE URGE STOCKHOLDERS TO VOTE FOR EACH OF THEM AS DIRECTORS.
The Nominees and each of the other Participants have no interest in Yahoo
other than through the beneficial ownership (if any) of shares of Common Stock,
par value $.001 per share, of Yahoo (the "Shares") or other securities (if any)
of Yahoo as disclosed herein, and, in the case of Lucian A. Bebchuk, Frank J.
Biondi, Jr., John H. Chapple, Mark Cuban, Adam Dell, Edward H. Meyer, Brian S.
Posner and Robert K. Shaye, pursuant to an agreement in which certain affiliates
of Carl C. Icahn have agreed to pay each of them $25,000 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 (the "Nominee
Agreement").
LUCIAN A. BEBCHUK, FRANK J. BIONDI, JR., JOHN H. CHAPPLE, MARK CUBAN, ADAM
DELL, CARL C. ICAHN, KEITH A. MEISTER, EDWARD H. MEYER, BRIAN S. POSNER AND
ROBERT K. SHAYE ARE COMMITTED TO ACTING IN THE BEST INTEREST OF THE STOCKHOLDERS
OF YAHOO AND IN ACCORDANCE WITH THEIR FIDUCIARY DUTIES. WE URGE YOU TO VOTE YOUR
GOLD PROXY CARD FOR LUCIAN A. BEBCHUK, FRANK J. BIONDI, JR., JOHN H. CHAPPLE,
MARK CUBAN, ADAM DELL, CARL C. ICAHN, KEITH A. MEISTER, EDWARD H. MEYER, BRIAN
S. POSNER AND ROBERT K. SHAYE.
IMPORTANT
According to the Amended and Restated Bylaws of Yahoo, effective March 3,
2008 (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 Yahoo'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 YAHOO. 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, OR BY VOTING IN PERSON AT
THE ANNUAL MEETING. SEE "VOTING PROCEDURES" AND "PROXY PROCEDURES" BELOW.
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) 859-8509
Banks and Brokerage Firms call: (212) 269-5550
Only holders of record of Yahoo's voting securities as of the close of
business on [June 3], 2008 (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 proxy statement of Yahoo filed with the Securities and
Exchange Commission ("Yahoo's Proxy Statement"), as of the Record Date, there
were outstanding ____________ shares of Common Stock. Stockholders 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 Yahoo held on the Record Date.
As of the Record Date, the Participants and their affiliates beneficially
owned an aggregate of _________ shares of Common Stock, representing
approximately ____% of the outstanding shares of Common Stock. The Participants
and their affiliates intend to vote such shares 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 Lucian A. Bebchuk, Frank J. Biondi,
Jr., John H. Chapple, Mark Cuban, Adam Dell, Carl C. Icahn, Keith A. Meister,
Edward H. Meyer, Brian S. Posner and Robert K. Shaye), the participants in the
solicitation of proxies (the "Participants") from stockholders of Yahoo! Inc.
("Yahoo" or the "Corporation") include the following: Icahn Partners LP, a
Delaware limited partnership ("Icahn Partners"), Icahn Partners Master Fund LP,
a Cayman Islands exempted limited partnership ("Icahn Master"), Icahn Partners
Master Fund II LP, a Cayman Islands exempted limited partnership ("Icahn Master
II"), Icahn Partners Master Fund III LP, a Cayman Islands exempted limited
partnership ("Icahn Master III"), High River Limited Partnership, a Delaware
limited partnership ("High River"), Barberry Corp., a Delaware corporation
("Barberry"), Hopper Investments LLC, a Delaware limited liability company
("Hopper"), 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 ("Icahn Capital"), Icahn Onshore LP, a Delaware
limited partnership ("Icahn Onshore"), Icahn Offshore LP, a Delaware limited
partnership ("Icahn Offshore"), Mr. Vincent J. Intrieri, Mr. David S. Schechter
and Mr. Mayu Sris.
The address of Icahn Partners, High River, Barberry, Hopper, Icahn
Enterprises GP, Icahn Enterprises Holdings, Beckton, IPH, Icahn Capital, Icahn
Onshore and Icahn Offshore is White Plains Plaza, 445 Hamilton Avenue - Suite
1210, White Plains, NY 10601. The address of Icahn Master, Icahn Master II and
Icahn Master III is c/o Walkers SPV Limited, P.O. Box 908GT, 87 Mary Street,
George Town, Grand Cayman, Cayman Islands. Mr. Icahn's, Mr. Meister's, Mr.
Schechter's and Mr. Sris's business address is c/o Icahn Associates Corp., 767
Fifth Avenue, 47th Floor, New York, NY 10153. Mr. Bebchuk's business address is
1545 Massachusetts Avenue, Cambridge, MA 02138, Mr. Biondi's business address is
110 N. Rockingham Avenue, Los Angeles, CA 90049, Mr. Chapple's business address
is 2365 Carillon Point, Kirkland, WA 98033, Mr. Cuban's business address is 5424
Deloache Avenue, Dallas, Texas 75220, Mr. Dell's business address is 333 Hudson
Street, Suite 905, New York, NY 10013, Mr. Meyer's business address is 767 Fifth
Avenue, 18th Floor, New York, NY 10153, Mr. Posner's business address is 238
Marshall Ridge Road, New Canaan, CT 06840, and Mr. Shaye's business address is
116 N. Robertson Blvd., Los Angeles, CA 90048.
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High
River (collectively, the "Icahn Parties") are entities controlled by Mr. Icahn.
Messrs. Meister, Intrieri, Schechter and Sris are employees and/or officers and
directors of the Icahn Parties and various other entities controlled by Mr.
Icahn who may also participate in soliciting proxies from Yahoo Stockholders.
Messrs. Meister, Intrieri, Schechter and Sris do not own beneficially any
interest in securities of Yahoo, and will not receive any special compensation
in connection with such solicitation. In connection with their employment by Mr.
Icahn and his affiliated companies, Messrs. Meister, Intrieri and Schechter,
among other employees, each has a participatory interest in the profits and fees
derived by Mr. Icahn and/or his affiliated entities from Icahn Partners, Icahn
Master, Icahn Master II and Icahn Master III (collectively, the "Funds").
Because only a portion of such profit interests are distributed and because of
their other investments in the Funds, each of Messrs. Meister, Intrieri and
Schechter also has capital accounts in the Funds. Generally, in the aggregate,
the profit interests and capital accounts of Messrs. Meister, Intrieri and
Schechter in the Funds entitle each of them, respectively, to less than 5% of
the profits generated by the Funds.
Each of Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and
High River is principally engaged in the business of investing in securities.
Annex A attached hereto sets forth, as to the Nominees and the other
Participants, all transactions in securities of Yahoo effected during the past
two years and their beneficial ownership of securities of Yahoo.
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 Yahoo,
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 Yahoo
or its affiliates or (B) any future transactions to which Yahoo or any of its
affiliates will or may be a party.
ELECTION OF DIRECTORS
On May 15, 2008, the Icahn Parties delivered a letter to Yahoo, notifying
Yahoo that the Icahn Parties nominate and will seek to elect at the Annual
Meeting - Lucian A. Bebchuk, Frank J. Biondi, Jr., John H. Chapple, Mark Cuban,
Adam Dell, Carl C. Icahn, Keith A. Meister, Edward H. Meyer, Brian S. Posner and
Robert K. Shaye as members of the board of directors of Yahoo. The Nominees, if
elected, would serve a one-year term and hold office until the 2009 annual
meeting of Stockholders and until a successor has been duly elected and
qualified. Background information about each of the Nominees is set forth below.
Lucian A. Bebchuk, Frank J. Biondi, Jr., John H. Chapple, Mark Cuban, Adam
Dell, Edward H. Meyer, Brian S. Posner and Robert K. Shaye are each party to an
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 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
(the "Nominee Agreement"). 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 each of Lucian A. Bebchuk,
Frank J. Biondi, Jr., John H. Chapple, Mark Cuban, Adam Dell, Edward H. Meyer,
Brian S. Posner and Robert K. Shaye of $25,000), none of the Nominees receive
any compensation from any of the Participants or any of their affiliates in
connection with this proxy solicitation. Lucian A. Bebchuk, Frank J. Biondi,
Jr., John H. Chapple, Mark Cuban, Adam Dell, Edward H. Meyer, Brian S. Posner
and Robert K. Shaye have an interest in the election of directors at the Annual
Meeting pursuant to the Nominee Agreement relating to such Nominee. Mr. Meister
has an interest in the election of directors at the Annual Meeting indirectly
through his capital accounts and other investments in the Funds. Mr. Icahn has
an interest in the election of directors at the Annual Meeting indirectly
through the beneficial ownership of securities, as described in Annex A.
The Nominees would be considered independent under Nasdaq Rule 4350(c) and
Rule 4200(a)(15) and the independence standards applicable to Yahoo under
paragraph (a)(1) of Item 407 of Regulation S-K under the Securities Exchange Act
of 1934, as amended.
Other than as disclosed in this Proxy Statement, including the Annexes
attached hereto, (i) the Nominees are not, nor were they within the past year, a
party to any contract, arrangement or understanding with any person with respect
to any securities of Yahoo, 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) none of the Nominees nor any of their respective associates have any
arrangement or understanding with any person with respect to (A) any future
employment by Yahoo or its affiliates or (B) any future transactions to which
Yahoo or any of its affiliates will or may be a party.
LUCIAN A. BEBCHUK
Lucian Bebchuk, 52, is the William J. Friedman and Alicia Townsend Friedman
Professor of Law, Economics, and Finance and Director of the Program on
Corporate Governance at Harvard Law School. Bebchuk is also a Research Associate
of the National Bureau of Economic Research and Inaugural Fellow of the European
Corporate Governance Network. Trained in both law and economics, Bebchuk holds
an LL.M. and S.J.D. from Harvard Law School and an M.A. and Ph.D in Economics
from the Harvard Economics Department. He joined the Harvard Law School faculty
in 1986 as an assistant professor, becoming a full professor in 1988, and the
Friedman Professor of Law, Economics and Finance in 1998. Bebchuk has written
extensively on corporate governance, corporate control, and corporate
transactions. He has published more than seventy research articles in academic
journals in law, economics, and finance. Upon electing him to membership in
2000, the American Academy of Arts and Sciences cited him as "[o]ne of the
nation's leading scholars of law and economics," who "has made major
contribution to the study of corporate control, governance, and insolvency." He
is the 2007-2008 President of the American Law and Economics Association, and a
former chair of the Business Association Section of the American Association of
Law Teachers. Bebchuk's recent writings include Pay without Performance: the
Unfulfilled Promise of Executive Compensation (Harvard University Press, 2004,
co-authored with Jesse Fried), "The Case for Increasing Shareholder Power"
(Harvard Law Review, 2005), "The Costs of Entrenched Boards" (Journal of
Financial Economics, 2005, co-authored with Alma Cohen), and "The Myth of the
Shareholder Franchise" (Virginia Law Review, 2007). Bebchuk has been a frequent
contributor to policy making and public discourse in the corporate governance
area. He has appeared before the Senate Finance Committee, the House Committee
of Financial Services, and the SEC. He has published many op-ed pieces,
including in the Wall Street Journal, the New York Times, and the Financial
Times. He was included in the list of "100 most influential people in finance"
of Treasury & Risk Management and the list of "100 most influential players in
corporate governance" of Directorship magazine.
FRANK J. BIONDI, JR.
Since March 1999, Mr. Biondi, 63, has served as Senior Managing Director of
WaterView Advisors LLC, an investment advisor organization. From April 1996 to
November 1998, Mr. Biondi served as Chairman and Chief Executive Officer of
Universal Studios, Inc. From July 1987 to January 1996, Mr. Biondi served as
President and Chief Executive Officer of Viacom, Inc. Mr. Biondi is a director
of Amgen Inc., Cablevision Systems Corp., Hasbro, Inc., The Bank of New York
Mellon Corporation and Seagate Technology. Mr. Biondi is a graduate of Princeton
University and earned a Masters of Business Administration from Harvard
University.
JOHN H. CHAPPLE
John Chapple, 55, is President of Hawkeye Investments LLC, a
privately-owned equity firm investing primarily in telecommunications and real
estate ventures frequently working in conjunction with Rally Capital LLC. Prior
to forming Hawkeye, John Chapple worked to organize Nextel Partners, a provider
of digital wireless services in mid-size and smaller markets throughout the U.S.
He became the President, Chief Executive Officer and Chairman of the Board of
Nextel Partners and its subsidiaries in August of 1998. Nextel Partners went
public in February 2000 and was traded on the NASDAQ Exchange. In June 2006, the
company was purchased by Sprint Communications. From 1995 to 1997, Mr. Chapple
was the President and Chief Operating Officer for Orca Bay Sports and
Entertainment in Vancouver, B.C. During Mr. Chapple's tenure, Orca Bay owned and
operated Vancouver's National Basketball Association and National Hockey League
sports franchises in addition to the General Motors Place sports arena and
retail interests. From 1988 to 1995, he served as Executive Vice President of
Operations for McCaw Cellular Communications and subsequently AT&T Wireless
Services following the merger of those companies. From 1978 to 1983, he served
on the senior management team of Rogers Cablesystems before moving to American
Cablesystems as Senior Vice President of Operations from 1983 to 1988. Mr.
Chapple, a graduate of Syracuse University and Harvard University's Advanced
Management Program, has 26 years of experience in the cable television and
wireless communications industries. Mr. Chapple is the past Chairman of Cellular
One Group and CTIA-The Wireless Association, past Vice-Chairman of the Cellular
Telecommunications Industry Association and has been on the Board of Governors
of the NHL and NBA. Mr. Chapple serves on the Syracuse University Board of
Trustees currently as Chairman and the Advisory Board for the Maxwell School of
Syracuse University. He is also on the Board of Directors of Cbeyond, Inc., a
publicly traded Atlanta-based integrated service telephony company; Seamobile
Enterprises, a privately held company providing integrated wireless services at
sea; Telesphere, a privately held VOIP (voice over internet protocol) company
based in Phoenix, Arizona; and on the advisory boards of Diamond Castle
Holdings, LLC, a private equity firm based in New York City and the Daniel J.
Evans School of Public Affairs at University of Washington.
MARK CUBAN
Since early 2000, Mr. Cuban, 49, has been the majority and controlling
owner of the National Basketball Association franchise, the Dallas Mavericks. In
2001, Mr. Cuban co-founded HDNet, an all high-definition television network on
DIRECTV that broadcasts high-definition sports, movies and other entertainment.
Prior to his purchase of the Dallas Mavericks, Mr. Cuban co-founded
Broadcast.com in 1995 and served as its Chairman of the Board until it was sold
to Yahoo in July of 1999. Before Broadcast.com, Mr. Cuban co-founded
MicroSolutions, a national systems integrator, in 1983, which was later sold to
CompuServe Corporation in 1990. Mr. Cuban is an active investor in cutting-edge
technologies and various industries, including the entertainment industry.
Mr. Cuban owns 20% of a small website company, Icerocket.com LLC, that
generates approximately $300,000 annually from Yahoo! Publishing Network.
ADAM DELL
Since January 2000, Mr. Dell, 38, has served as the Managing General
Partner of Impact Venture Partners, a venture capital firm focused on
information technology investments. He also serves as Managing Director at
Steelpoint Capital Partners, a private equity firm with offices in New York and
California. From October 1998 to January 2000, Mr. Dell was a Senior Associate
and subsequently a Partner with Crosspoint Venture Partners in Northern
California. From July 1997 to August 1998, he was a Senior Associate with
Enterprise Partners in Southern California. From January 1996 to June 1997 Mr.
Dell was associated with the law firm of Winstead Sechrest & Minick, in Austin,
Texas, where he practiced corporate law. Mr. Dell's investments include: Buzzsaw
(which was acquired by Autodesk), HotJobs (which was acquired by Yahoo) and
Connectify (which was acquired by Kana Software). Mr. Dell has been a director
of XO Holdings, Inc., a telecommunications services provider, since February
2006, and of its predecessor from January 2003 to February 2006. In addition,
Mr. Dell currently serves on the boards of directors of the Santa Fe Institute,
MessageOne and OpenTable. He also teaches a course at the Columbia Business
School on business, technology and innovation and is a contributing columnist to
the technology publication, Business 2.0. Mr. Dell received a J.D. from
University of Texas and a B.A. from Tulane University.
Mr. Dell has an investment, through Impact Venture Partners, in OpenTable.
OpenTable has a partnership with Yahoo.
CARL C. ICAHN
Mr. Icahn, 72, has served as chairman of the board and a director of
Starfire Holding Corporation, 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., 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 L.P. and Icahn Partners Master Fund III L.P. Prior to August
2007, Mr. Icahn conducted this occupation through his entities CCI Onshore Corp.
and CCI Offshore Corp since September 2004. Since November 1990, Mr. Icahn has
been chairman of the board of Icahn Enterprises G.P. Inc., the general partner
of Icahn Enterprises L.P. Icahn Enterprises L.P. is a diversified holding
company engaged in a variety of businesses, including investment management,
metals, real estate and home fashion. 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 L.P.
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. 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. In May 2005, Mr.
Icahn became 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. In September 2006, Mr. Icahn became a director of ImClone Systems
Incorporated, a biopharmaceutical company, and since October 2006 has been the
chairman of the board of ImClone. In August 2007, Mr. Icahn became a director of
WCI Communities, Inc., a homebuilding company, and since September 2007 has been
the chairman of the board of WCI. In December 2007, Mr. Icahn became a director
of Federal-Mogul Corporation, a supplier of automotive products, and since
January 2008 has been the chairman of the board of Federal-Mogul. In April 2008,
Mr. Icahn became a director of Motricity, Inc., a privately-held company that
provides mobile content services and solutions. Mr. Icahn received his B.A. from
Princeton University.
KEITH A. MEISTER
Since March 2006, Keith Meister, 35, has served as Principal Executive
Officer and Vice Chairman of the Board of Icahn Enterprises G.P. Inc., the
general partner of Icahn Enterprises L.P., a diversified holding company engaged
in a variety of businesses, including investment management, metals, real estate
and home fashion. Since November 2004, Mr. Meister has been a Managing Director
of Icahn Capital LP, the entity through which Carl C. Icahn manages third party
private investment funds. Since June 2002, Mr. Meister has served as senior
investment analyst of High River Limited Partnership, an entity primarily
engaged in the business of holding and investing in securities. Mr. Meister also
serves on the boards of directors of the following companies: XO Holdings, Inc.,
a telecommunications company; WCI Communities, Inc., a homebuilding company;
Federal-Mogul Corporation, a supplier of automotive products; and Motorola,
Inc., a mobile communications company. With respect to each company mentioned
above, Carl C. Icahn, directly or indirectly, either (i) controls such company
or (ii) has an interest in such company through the ownership of securities. Mr.
Meister received an A.B. in government, cum laude, from Harvard College in 1995.
EDWARD H. MEYER
Mr. Meyer, 81, serves as Chairman, Chief Executive Officer and Chief
Investment Officer of Ocean Road Advisors, Inc., an investment management
company. From 1970 to 2006, he served as Chairman, Chief Executive Officer and
President of Grey Global Group, Inc., a multi-billion dollar global advertising
and marketing agency. Mr. Meyer serves as a Director of Harman International
Industries, Inc., Ethan Allen Interiors, Inc., National CineMedia, Inc. and NRDC
Acquisition Corp. Mr. Meyer holds a B.A. in Economics from Cornell University.
BRIAN S. POSNER
Brian S. Posner, 46, is a private investor. From 2005 through March 2008,
he served as Chief Executive Officer and co-Chief Investment Officer of
ClearBridge Advisors LLC (and its predecessor company, CAM North America), an
asset management company based in New York with approximately $90 billion in
assets and a wholly owned subsidiary of Legg Mason Inc. Prior to ClearBridge
Advisors, he was a co-Founder and the Managing Partner of Hygrove Partners LLC,
a hedge fund company that was formed in 2000. Prior to ClearBridge Advisors and
Hygrove Partners, he served as a Portfolio Manager and an Analyst, first at
Fidelity Investments from 1987 to 1996 and then at Warburg Pincus Asset
Management/Credit Suisse Asset Management from 1997 to 1999. At Warburg Pincus
Asset Management/Credit Suisse Asset Management he was a Managing Director and
served as the Senior Investment Manager of the Value Equity Group, co-Portfolio
Manager of the Warburg Pincus Growth & Income Fund, and Portfolio Manager of the
Warburg Pincus Institutional Value Fund and the Warburg Pincus Trust, Growth and
Income Fund. Prior to the acquisition of Warburg Pincus Asset Management
("WPAM") by Credit Suisse Asset Management in July 1999, he was co-Chief
Investment Officer, Director of Research, Chairman of the Global Asset
Allocation Committee, and a member of the Executive Operating Committee at WPAM.
At Fidelity Investments, he was the Portfolio Manager of the Fidelity Equity
Income II Fund from 1992 to 1996 and the Fidelity Value Fund from 1990 to 1992.
He also managed the Select Life Insurance, Select Property Casualty Insurance
and Select Energy Portfolios. From 1987 to 1990, he was an Oil, Insurance, and
Financial Services Analyst. From August 2000 to April 2003 he served on the
Board of Directors for Sotheby's Holdings, Inc. He currently a member of the
Board of Trustees at Northwestern University and the Board of Visitors for the
Weinberg College of Arts and Sciences at Northwestern University. Mr. Posner
received his undergraduate degree in history from Northwestern University in
1983 and his M.B.A. in finance from the University of Chicago Graduate School of
Business in 1987.
ROBERT K. SHAYE
Robert Shaye, 69, is Co-Chairman and Co-CEO of New Line Cinema. As the
Founder of New Line Cinema and a filmmaker himself, Robert Shaye has spent more
than 40 years developing and distributing films that reflect a wide array of
cultural movements, creating new paradigms for the motion picture business, and
most importantly, entertaining millions of moviegoers. Since he founded New Line
in 1967, Shaye has guided the company's growth from a privately-held art film
distributor to one of the entertainment industry's leading independent studios
and a veritable box office force. He has been involved in such films as The Lord
of the Rings trilogy, Rush Hour, Austin Powers and Seven. A University of
Michigan graduate with a degree in business administration and a J.D. degree
from Columbia University Law School, Shaye is also a Fulbright Scholar, member
of the New York State Bar, and serves on the Board of Trustees of the Motion
Picture Pioneers, and the American Film Institute.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF LUCIAN A. BEBCHUK, FRANK
J. BIONDI, JR., JOHN H. CHAPPLE, MARK CUBAN, ADAM DELL, CARL C. ICAHN, KEITH A.
MEISTER, EDWARD H. MEYER, BRIAN S. POSNER AND ROBERT K. SHAYE 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 REPRESENTED BY THE GOLD PROXY CARD FOR THE ELECTION OF LUCIAN A.
BEBCHUK, FRANK J. BIONDI, JR., JOHN H. CHAPPLE, MARK CUBAN, ADAM DELL, CARL C.
ICAHN, KEITH A. MEISTER, EDWARD H. MEYER, BRIAN S. POSNER AND ROBERT K. SHAYE.
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 the Bylaws and applicable law, holders of shares of Yahoo'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 the Bylaws and applicable law, directors are elected by a
plurality of the votes cast by the holders of Yahoo'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 not
voted (whether by abstention, broker nonvote or otherwise) have no impact in the
election of directors. A quorum is a majority of the Shares issued and
outstanding and entitled to vote, present in person or represented by proxy at
the Annual Meeting. The Shares represented by a proxy marked "withhold" or
"abstain" will be considered present at the Annual Meeting for purposes of
determining a quorum.
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. If you submit your vote by Internet, you may incur
costs associated with electronic access, such as usage charges from
Internet access providers and telephone companies;
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 Stockholders who wish to vote in person at the Annual
Meeting. If you hold your Shares 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
toll-free 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 Stockholders will be required to provide the unique
control number which has been printed on each Stockholder'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
Stockholders submitting proxies by telephone, or at the designated website for
those Stockholders submitting proxies over the Internet. Stockholders 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
vote 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 will be voted in accordance with that specification. IF
NO SPECIFICATION IS MADE, THE SHARES WILL BE VOTED (I) FOR LUCIAN A. BEBCHUK FOR
DIRECTOR; (II) FOR FRANK J. BIONDI, JR. FOR DIRECTOR; (III) FOR JOHN H. CHAPPLE
FOR DIRECTOR; (IV) FOR MARK CUBAN FOR DIRECTOR; (V) FOR ADAM DELL FOR DIRECTOR;
(VI) FOR CARL C. ICAHN FOR DIRECTOR; (VII) FOR KEITH A. MEISTER FOR DIRECTOR;
(VIII) FOR EDWARD H. MEYER FOR DIRECTOR; (IX) FOR BRIAN S. POSNER FOR DIRECTOR;
(X) FOR ROBERT K. SHAYE FOR DIRECTOR; 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.
Stockholders call toll-free: (800) 859-8509
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 Stockholder of record on the Record Date, you
will retain your voting rights at the Annual Meeting even if you sell such
shares after the Record Date. Accordingly, it is important that you vote the
shares held by you on the Record Date, or grant a proxy to vote such shares on
the GOLD proxy card, even if you sell such shares after the Record Date.
IF YOUR SHARES 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 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 Stockholders of record may revoke or change his or her proxy
instructions at any time prior to the vote at the Annual Meeting by:
o 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 Yahoo;
o instructing the Icahn Parties by telephone or via the Internet as to
how you would like your shares voted (instructions are on your GOLD
proxy card);
o 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
o 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 Yahoo.
Although a revocation is effective if delivered to Yahoo, 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 YAHOO, 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 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 shall be made by Messrs. Icahn, Meister, Intrieri,
Schechter and Sris.
The Icahn Parties have retained D.F. King & Co., Inc. ("D.F. King") to
conduct the solicitation, for which D.F. King is to receive a fee not to exceed
$____________, plus reimbursement for its reasonable out-of-pocket expenses. The
Icahn Parties have 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 approximately [60] persons to solicit proxies from Yahoo Stockholders 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 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 Yahoo, but do not intend to submit the
issue of reimbursement to a vote of security holders.
ADDITIONAL INFORMATION
Certain information regarding the securities of Yahoo held by Yahoo's
directors, management and 5% Stockholders is expected to be contained in Yahoo's
Proxy Statement. Information concerning the date by which proposals of security
holders intended to be presented at the next annual meeting of Stockholders of
Yahoo must be received by Yahoo for inclusion in Yahoo's Proxy Statement and
form of proxy for that meeting is also expected to be contained in Yahoo's Proxy
Statement. This information is expected to be contained in Yahoo's public
filings. The Participants take no responsibility for the accuracy or
completeness of such information contained in Yahoo's public filings.
Date: June __, 2008
CARL C. ICAHN
KEITH A. MEISTER
LUCIAN A. BEBCHUK
FRANK J. BIONDI, JR.
JOHN H. CHAPPLE
MARK CUBAN
ADAM DELL
EDWARD H. MEYER
BRIAN S. POSNER
ROBERT K. SHAYE
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
ICAHN CAPITAL L.P.
IPH GP LLC
ICAHN ENTERPRISES HOLDINGS L.P.
ICAHN ENTERPRISES G.P. INC.
BECKTON CORP.
VINCENT J. INTRIERI
DAVID S. SCHECHTER
MAYU SRIS
ANNEX A
BENEFICIAL OWNERSHIP OF SECURITIES OF YAHOO
BENEFICIAL OWNERSHIP OF SECURITIES OF YAHOO AS OF THE CLOSE OF BUSINESS ON MAY
___, 2008:
(1) TITLE OF (2) NAME OF BENEFICIAL (3) BENEFICIAL (4) PERCENT
CLASS (1) BENEFICIAL OWNERSHIP (3) OF
OWNER(2) CLASS (4)
- --------------------------------------------------------------------------------
Common Stock, High River 11,800,804 0.8577%
par value $0.001
per share
- --------------------------------------------------------------------------------
Common Stock, Icahn Partners 17,832,037 1.2961%
par value $0.001
per share
- --------------------------------------------------------------------------------
Common Stock, Icahn Master 20,301,354 1.4755%
par value $0.001
per share
- --------------------------------------------------------------------------------
Common Stock, Icahn Master II 6,572,424 0.4777%
par value $0.001
per share
- --------------------------------------------------------------------------------
Common Stock, Icahn Master III 2,497,401 0.1815%
par value $0.001
per share
- --------------------------------------------------------------------------------
TOTAL 59,004,020 4.2886%
____________________
(1) Please note that the Icahn Parties also purchased certain call options on
Shares as described on Attachment 1 to this Annex A and wrote certain put
options on Shares as described on Attachment 2 to this Annex A.
(2) Please note that each Record Holder listed in this table is, as of the
close of business on May___, 2008, the direct beneficial owner of the
Shares set forth under the heading "(3) Beneficial Ownership" and that
indirect beneficial ownership of Shares is described below in the text of
this Annex A under the heading "Beneficial Ownership."
(3) Please note that the number of Shares listed in this column (i) includes
Shares that may be acquired upon exercise of American call options, as
further described in this Annex A, and (ii) excludes Shares beneficially
owned by Gail Golden, the spouse of Mr. Icahn, as further described in this
Annex A.
(4) Please note that percentages of ownership set forth in this column are
approximate and were calculated based on the 1,375,835,884 Shares stated to
be outstanding as of April 30, 2008 in the Form 10-Q for the quarterly
period ended March 31, 2008 filed by Yahoo with the Securities and Exchange
Commission on May 8, 2008.
BENEFICIAL OWNERSHIP
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. ("Icahn Enterprises Holdings"). Icahn Enterprises
Holdings is the sole member of IPH GP LLC, a Delaware limited liability company
("IPH"), which is the general partner of Icahn Capital LP, 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. As such, Mr. Icahn is in a
position indirectly to determine the investment and voting decisions made by
each of High River, Icahn Partners, Icahn Master, Icahn Master II and Icahn
Master III (collectively, the "Icahn Parties").
The Icahn Parties and Carl C. Icahn beneficially own, in the aggregate,
59,004,020 Shares (comprised of 9,993,764 Shares and 49,010,256 Shares that may
be acquired upon exercise of American call options), representing approximately
4.2886% of Yahoo's outstanding Shares (based upon the 1,375,835,884 Shares
stated to be outstanding as of April 30, 2008 by Yahoo in its Form 10-Q for the
quarterly period ended March 31, 2008, filed with the SEC on May 8, 2008). These
amounts do not include Shares beneficially owned by Gail Golden, the spouse of
Mr. Icahn, as further described in this Annex A.
High River has sole voting power and sole dispositive power with regard to
11,800,804 Shares (comprised of 2,090,180 Shares and 9,710,624 Shares that may
be acquired upon exercise of American call options). 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 17,832,037 Shares (comprised of 2,554,068 Shares and 15,277,969
Shares that may be acquired upon exercise of American call options). Each of
Icahn Onshore, Icahn Capital, IPH, Icahn Enterprises 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 20,301,354 Shares (comprised of 2,563,612
Shares and 17,737,742 Shares that may be acquired upon exercise of American call
options). Each of Icahn Offshore, Icahn Capital, IPH, Icahn Enterprises
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 6,572,424 Shares
(comprised of 2,343,571 Shares and 4,228,853 Shares that may be acquired upon
exercise of American call options). Each of Icahn Offshore, Icahn Capital, IPH,
Icahn Enterprises 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
2,497,401 Shares (comprised of 442,333 Shares and 2,055,068 Shares that may be
acquired upon exercise of American call options). Each of Icahn Offshore, Icahn
Capital, IPH, Icahn Enterprises 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, indirectly beneficially own the Shares which High River directly
beneficially owns. Each of Icahn Onshore, Icahn Capital, IPH, Icahn Enterprises
Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn, by virtue of their
relationships to Icahn Partners, indirectly beneficially own the Shares which
Icahn Partners directly beneficially owns. Each of Icahn Offshore, Icahn
Capital, IPH, Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr.
Icahn, by virtue of their relationships to Icahn Master, Icahn Master II and
Icahn Master III, indirectly beneficially own the Shares which Icahn Master,
Icahn Master II and Icahn Master III directly beneficially own.
Gail Golden
- -----------
Gail Golden, the spouse of Mr. Icahn, is the beneficial owner of 1,050 Shares.
Ms. Golden has sole voting power and sole dispositive power with regard to these
Shares. Mr. Icahn disclaims beneficial ownership of such Shares for all
purposes. On March 22, 2007, Ms. Golden sold short call option contracts with
respect to 500 Shares, with a strike price of $35 and an expiration date of
October 19, 2007, for proceeds of $899.98. On October 19, 2007, these options
expired worthless.
Frank J. Biondi, Jr.
- --------------------
Mr. Biondi does not own any Shares. However, on December 12, 2007, Mr. Biondi
purchased 25 Shares, which were transferred as a gift on the same day to a
person not associated with Mr. Biondi.
Mark Cuban
- ----------
Mr. Cuban does not own any Shares but conducted the following transactions
within the last two years:
SHARES
- ------------------------------ ---------------------------
Purchase Sale
- ------------------------------ ---------------------------
Date Shares Date Shares
- ---------------- ------------- ------------- -------------
10/26/06 102,193 06/19/07 102,193
- ---------------- ------------- ------------- -------------
10/26/06 54,907 06/06/07 54,907
- ---------------- ------------- ------------- -------------
10/26/06 42,900 02/06/07 42,900
- ---------------- ------------- ------------- -------------
12/21/06 100,000 06/19/07 100,000
- ---------------- ------------- ------------- -------------
CALL OPTIONS
- ------------------------------ ---------------------------
Purchase Sale
- ---------------- ------------- ------------- -------------
Date Contracts Date Contracts
- ---------------- ------------- ------------- -------------
01/18/07 2,571 02/14/07 2,571
- ---------------- ------------- ------------- -------------
PUT OPTIONS
- ------------------------------ ---------------------------
Purchase Sale
- ---------------- ------------- ------------- -------------
Date Contracts Date Contracts
- ---------------- ------------- ------------- -------------
04/18/07 2,000 05/04/07 2,000
- ---------------- ------------- ------------- -------------
TWO YEAR SUMMARY TABLE
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of call options, by the Icahn Parties within the past two
years, and the number of shares in each such purchase, sale, or call option
exercise.
NAME DATE SHARES PURCHASED
- --------------------------------------------------------------------------------
HIGH RIVER
- --------------------------------------------------------------------------------
High River May 5, 2008 200,000
- --------------------------------------------------------------------------------
High River May 5, 2008 1,290,000
- --------------------------------------------------------------------------------
High River May 9, 2008 200,000
- --------------------------------------------------------------------------------
High River May 9, 2008 400,000
- --------------------------------------------------------------------------------
High River May 14, 2008 180
- --------------------------------------------------------------------------------
ICAHN PARTNERS
- --------------------------------------------------------------------------------
Icahn Partners May 5, 2008 302,217
- --------------------------------------------------------------------------------
Icahn Partners May 5, 2008 1,949,302
- --------------------------------------------------------------------------------
Icahn Partners May 9, 2008 302,196
- --------------------------------------------------------------------------------
Icahn Partners May 14, 2008 353
- --------------------------------------------------------------------------------
ICAHN MASTER
- --------------------------------------------------------------------------------
Icahn Master May 5, 2008 344,067
- --------------------------------------------------------------------------------
Icahn Master May 5, 2008 2,219,235
- --------------------------------------------------------------------------------
Icahn Master May 14, 2008 310
- --------------------------------------------------------------------------------
ICAHN MASTER II
- --------------------------------------------------------------------------------
Icahn Master II May 5, 2008 111,389
- --------------------------------------------------------------------------------
Icahn Master II May 5, 2008 718,462
- --------------------------------------------------------------------------------
Icahn Master II May 9, 2008 111,380
- --------------------------------------------------------------------------------
Icahn Master II May 9, 2008 222,756
- --------------------------------------------------------------------------------
Icahn Master II May 9, 2008 802,469
- --------------------------------------------------------------------------------
Icahn Master II May 13, 2008 377,095
- --------------------------------------------------------------------------------
Icahn Master II May 14, 2008 20
- --------------------------------------------------------------------------------
ICAHN MASTER III
- --------------------------------------------------------------------------------
Icahn Master III May 5, 2008 42,327
- --------------------------------------------------------------------------------
Icahn Master III May 5, 2008 273,001
- --------------------------------------------------------------------------------
Icahn Master III May 9, 2008 42,324
- --------------------------------------------------------------------------------
Icahn Master III May 9, 2008 84,644
- --------------------------------------------------------------------------------
Icahn Master III May 14, 2008 37
- --------------------------------------------------------------------------------
Part of the purchase price of Shares purchased by High River was obtained
through margin borrowing. Shares purchased by High River are maintained in a
margin account that includes positions in securities in addition to the Shares.
The indebtedness of the margin account as of May 13, 2008 was approximately
$1,081,803,584.
ATTACHMENT 1 TO ANNEX A
The following table indicates the date of each purchase by the Icahn Parties
within the past two years of American call options, which were written by
Merrill Lynch International and have a strike price of $19.50 per share and an
expiration date of November 5, 2010, and provide for physical settlement (unless
an Icahn Party opts for cash settlement). These options were purchased for
average premium of $5.81 for each Share subject to such options.
NAME DATE NUMBER OF SHARES
SUBJECT TO OPTION
- --------------------------------------------------------------------------------
HIGH RIVER
- --------------------------------------------------------------------------------
High River May 5, 2008 310,000
- --------------------------------------------------------------------------------
High River May 5, 2008 1,200,000
- --------------------------------------------------------------------------------
High River May 6, 2008 3,158,884
- --------------------------------------------------------------------------------
High River May 7, 2008 1,700,000
- --------------------------------------------------------------------------------
High River May 8, 2008 1,211,580
- --------------------------------------------------------------------------------
High River May 8, 2008 12,449
- --------------------------------------------------------------------------------
High River May 9, 2008 1,440,699
- --------------------------------------------------------------------------------
High River May 13, 2008 677,012
- --------------------------------------------------------------------------------
ICAHN PARTNERS
- --------------------------------------------------------------------------------
Icahn Partners May 5, 2008 468,437
- --------------------------------------------------------------------------------
Icahn Partners May 5, 2008 1,813,304
- --------------------------------------------------------------------------------
Icahn Partners May 6, 2008 4,773,348
- --------------------------------------------------------------------------------
Icahn Partners May 7, 2008 2,568,847
- --------------------------------------------------------------------------------
Icahn Partners May 8, 2008 1,830,803
- --------------------------------------------------------------------------------
Icahn Partners May 8, 2008 18,811
- --------------------------------------------------------------------------------
Icahn Partners May 9, 2008 604,449
- --------------------------------------------------------------------------------
Icahn Partners May 9, 2008 2,176,983
- --------------------------------------------------------------------------------
Icahn Partners May 13, 2008 1,022,987
- --------------------------------------------------------------------------------
ICAHN MASTER
- --------------------------------------------------------------------------------
Icahn Master May 5, 2008 2,064,403
- --------------------------------------------------------------------------------
Icahn Master May 5, 2008 533,305
- --------------------------------------------------------------------------------
Icahn Master May 6, 2008 5,434,345
- --------------------------------------------------------------------------------
Icahn Master May 7, 2008 2,924,571
- --------------------------------------------------------------------------------
Icahn Master May 8, 2008 2,084,325
- --------------------------------------------------------------------------------
Icahn Master May 8, 2008 21,417
- --------------------------------------------------------------------------------
Icahn Master May 9, 2008 344,100
- --------------------------------------------------------------------------------
Icahn Master May 9, 2008 688,151
- --------------------------------------------------------------------------------
Icahn Master May 9, 2008 2,478,442
- --------------------------------------------------------------------------------
Icahn Master May 13, 2008 1,164,683
- --------------------------------------------------------------------------------
ICAHN MASTER II
- --------------------------------------------------------------------------------
Icahn Master II May 5, 2008 172,653
- --------------------------------------------------------------------------------
Icahn Master II May 5, 2008 668,337
- --------------------------------------------------------------------------------
Icahn Master II May 6, 2008 1,759,331
- --------------------------------------------------------------------------------
Icahn Master II May 7, 2008 946,811
- --------------------------------------------------------------------------------
Icahn Master II May 8, 2008 674,786
- --------------------------------------------------------------------------------
Icahn Master II May 8, 2008 6,935
- --------------------------------------------------------------------------------
ICAHN MASTER III
- --------------------------------------------------------------------------------
Icahn Master III May 5, 2008 65,605
- --------------------------------------------------------------------------------
Icahn Master III May 5, 2008 253,956
- --------------------------------------------------------------------------------
Icahn Master III May 6, 2008 668,514
- --------------------------------------------------------------------------------
Icahn Master III May 7, 2008 359,771
- --------------------------------------------------------------------------------
Icahn Master III May 8, 2008 256,406
- --------------------------------------------------------------------------------
Icahn Master III May 8, 2008 2,634
- --------------------------------------------------------------------------------
Icahn Master III May 9, 2008 304,900
- --------------------------------------------------------------------------------
Icahn Master III May 13, 2008 143,282
- --------------------------------------------------------------------------------
ATTACHMENT 2 TO ANNEX A
The following table indicates the date of each sale by the Icahn Parties within
the past two years of European put options, which were written by Merrill Lynch
International and have a strike price of $19.50 per share and an expiration date
of November 5, 2010, and provide for cash settlement only. The Icahn Parties
received a premium of $0.01 for each Share referenced by such put options. These
agreements do not give the Icahn Parties direct or indirect voting, investment
or dispositive control over the Shares to which these agreements relate and,
accordingly, the Icahn Parties disclaim any beneficial ownership in the Shares
to which these agreements relate.
NAME DATE NUMBER OF SHARES
SUBJECT TO OPTION
- --------------------------------------------------------------------------------
HIGH RIVER
- --------------------------------------------------------------------------------
High River May 5, 2008 310,000
- --------------------------------------------------------------------------------
High River May 5, 2008 1,200,000
- --------------------------------------------------------------------------------
High River May 6, 2008 3,158,884
- --------------------------------------------------------------------------------
High River May 7, 2008 1,700,000
- --------------------------------------------------------------------------------
High River May 8, 2008 1,211,580
- --------------------------------------------------------------------------------
High River May 8, 2008 12,449
- --------------------------------------------------------------------------------
High River May 9, 2008 1,440,699
- --------------------------------------------------------------------------------
High River May 13, 2008 677,012
- --------------------------------------------------------------------------------
ICAHN PARTNERS
- --------------------------------------------------------------------------------
Icahn Partners May 5, 2008 468,437
- --------------------------------------------------------------------------------
Icahn Partners May 5, 2008 1,813,304
- --------------------------------------------------------------------------------
Icahn Partners May 6, 2008 4,773,348
- --------------------------------------------------------------------------------
Icahn Partners May 7, 2008 2,568,847
- --------------------------------------------------------------------------------
Icahn Partners May 8, 2008 1,830,803
- --------------------------------------------------------------------------------
Icahn Partners May 8, 2008 18,811
- --------------------------------------------------------------------------------
Icahn Partners May 9, 2008 604,449
- --------------------------------------------------------------------------------
Icahn Partners May 9, 2008 2,176,983
- --------------------------------------------------------------------------------
Icahn Partners May 13, 2008 1,022,987
- --------------------------------------------------------------------------------
ICAHN MASTER
- --------------------------------------------------------------------------------
Icahn Master May 5, 2008 2,064,403
- --------------------------------------------------------------------------------
Icahn Master May 5, 2008 533,305
- --------------------------------------------------------------------------------
Icahn Master May 6, 2008 5,434,345
- --------------------------------------------------------------------------------
Icahn Master May 7, 2008 2,924,571
- --------------------------------------------------------------------------------
Icahn Master May 8, 2008 2,084,325
- --------------------------------------------------------------------------------
Icahn Master May 8, 2008 21,417
- --------------------------------------------------------------------------------
Icahn Master May 9, 2008 344,100
- --------------------------------------------------------------------------------
Icahn Master May 9, 2008 688,151
- --------------------------------------------------------------------------------
Icahn Master May 9, 2008 2,478,442
- --------------------------------------------------------------------------------
Icahn Master May 13, 2008 1,164,683
- --------------------------------------------------------------------------------
ICAHN MASTER II
- --------------------------------------------------------------------------------
Icahn Master II May 5, 2008 172,653
- --------------------------------------------------------------------------------
Icahn Master II May 5, 2008 668,337
- --------------------------------------------------------------------------------
Icahn Master II May 6, 2008 1,759,331
- --------------------------------------------------------------------------------
Icahn Master II May 7, 2008 946,811
- --------------------------------------------------------------------------------
Icahn Master II May 8, 2008 674,786
- --------------------------------------------------------------------------------
Icahn Master II May 8, 2008 6,935
- --------------------------------------------------------------------------------
ICAHN MASTER III
- --------------------------------------------------------------------------------
Icahn Master III May 5, 2008 65,605
- --------------------------------------------------------------------------------
Icahn Master III May 5, 2008 253,956
- --------------------------------------------------------------------------------
Icahn Master III May 6, 2008 668,514
- --------------------------------------------------------------------------------
Icahn Master III May 7, 2008 359,771
- --------------------------------------------------------------------------------
Icahn Master III May 8, 2008 256,406
- --------------------------------------------------------------------------------
Icahn Master III May 8, 2008 2,634
- --------------------------------------------------------------------------------
Icahn Master III May 9, 2008 304,900
- --------------------------------------------------------------------------------
Icahn Master III May 13, 2008 143,282
- --------------------------------------------------------------------------------
ANNEX B
FORM OF NOMINEE AGREEMENT
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
HIGH RIVER LIMITED PARTNERSHIP
May __, 2008
To: ____________
Dear Mr._______:
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 Yahoo!
Inc. ("YAHOO") in connection with a proxy contest with management of YAHOO in
respect of the election of directors of YAHOO at the 2008 Annual Meeting of
Stockholders of YAHOO (the "Annual Meeting") or a special meeting of
stockholders of YAHOO called for a similar purpose (the "Proxy Contest").
Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master
Fund II L.P., Icahn Partners Master Fund III L.P. and High River Limited
Partnership (collectively, the "Icahn Entities"), agree to pay the costs of the
Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the
Securities and Exchange Commission (the "SEC"), which indicates that the Icahn
Entities intend to nominate you for election at the Annual Meeting, you will be
paid $25,000 by the Icahn Entities.
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 the Icahn Entities with
information necessary for the Icahn Entities to make appropriate disclosure both
to YAHOO and for use in creating the proxy material to be sent to stockholders
of YAHOO and to be filed with the SEC. You have agreed that (i) you will
immediately complete and sign the questionnaire and return it to Jesse A. Lynn,
Assistant General Counsel, Icahn Enterprises L.P., 767 Fifth Avenue, Suite 4700,
New York, NY 10153, Tel: (212) 702-4331, Fax: (212) 688-1158, Email:
jlynn@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 instrument
attached hereto as Annex I, directed to YAHOO, informing YAHOO that you consent
to being nominated by the Icahn Entities for election as a director of YAHOO
and, if elected, consent to serving as a director of YAHOO. Upon being notified
that we have chosen you, we may forward that consent and your completed
questionnaire (or summaries thereof) to YAHOO.
You understand and acknowledge that the Icahn Entities and their affiliates
will be required to make various filings with the SEC in connection with the
Proxy Contest and may also be required to respond to comment letters and other
SEC correspondence relating thereto. In connection therewith, you hereby agree
and authorize the Icahn Entities and their legal representatives to make the
following representation to the SEC on your behalf, substantially in the form of
the following statement: "[Your Name] acknowledges that (i) [he/she] is
responsible for the adequacy and accuracy of the disclosure in [the applicable
filing], (ii) SEC Staff comments or changes to disclosure in response to SEC
Staff comments do not foreclose the SEC from taking any action with respect to
the filing, and (iii) [he/she] may not assert SEC Staff comments as a defense in
any proceeding initiated by the SEC or any person under the federal securities
laws of the United States."
The Icahn Entities hereby agree that, so long as you actually serve on the
Slate, the Icahn Entities 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 YAHOO
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 the Icahn Entities determine 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, the Icahn Entities
are 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 YAHOO's
Board of Directors or for any actions taken by you as a director of YAHOO, 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 the Icahn Entities 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, the Icahn Entities
shall be entitled to control your defense with counsel chosen by the Icahn
Entities. The Icahn Entities shall not be responsible for any settlement of any
claim against you covered by this indemnity without its prior written consent.
However, the Icahn Entities 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 YAHOO all of your activities and decisions as a director will be governed by
applicable law and subject to your fiduciary duty to the stockholders of YAHOO
and, as a result, that there is, and can be, no agreement between you and the
Icahn Entities which governs the decisions which you will make as a director of
YAHOO.
[Signature Page]
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,
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 L.P.
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III L.P.
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments, LLC, its general partner
By: Barberry Corp., its sole member
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as of
the date first above written:
- --------------------------
Name:
[Signature Page to Nominee Agreement re YAHOO]
ANNEX I
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Yahoo! Inc. (the "Company") in the proxy statement to be filed
with the Securities and Exchange Commission and distributed to stockholders of
the Company by Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III") and High River Limited
Partnership ("High River" and together with Icahn Partners, Icahn Master, Icahn
Master II, Icahn Master III, and other affiliates, the "Participants"), and in
other materials in connection with the solicitation of proxies by the
Participants from stockholders of the Company to be voted at the 2008 annual
meeting of stockholders of the Company and any adjournment thereof, and further
consents to serve as a director of the Company, if elected.
Dated: May ___, 2008
--------------------------------
Name:
IMPORTANT
1. If your shares 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 are held in the name of a brokerage firm, bank nominee or
other institution, only it can vote such shares 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.
3. If you have already submitted a white proxy card to Yahoo 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
Yahoo. 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: (888) 605-1957
Banks and Brokerage Firms call: (212) 269-5550
PROXY CARD [PRELIMINARY COPY]
YAHOO! INC.
2008 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED BY
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP AND
HIGH RIVER LIMITED PARTNERSHIP
The undersigned hereby appoints and constitutes each of Carl C. Icahn, Keith A.
Meister, Vincent J. Intrieri, David S. Schechter and Mayu Sris (acting alone or
together) as proxies, with full power of substitution in each, to represent the
undersigned at the Annual Meeting of Stockholders of Yahoo! Inc. ("Yahoo") to be
held on July 3, 2008 at _____ a.m. local time, 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 Yahoo 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 FOR LUCIAN A. BEBCHUK, FRANK J. BIONDI, JR., JOHN H. CHAPPLE, MARK
CUBAN, ADAM DELL, CARL C. ICAHN, KEITH A. MEISTER, EDWARD H. MEYER, BRIAN S.
POSNER AND ROBERT K. SHAYE FOR DIRECTOR, IF PERMITTED, AND WILL ABSTAIN FROM
VOTING WITH RESPECT TO THE REMAINING PROPOSALS.
SIGN, DATE AND MAIL YOUR PROXY TODAY
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
[PRELIMINARY COPY]
ICAHN PARTNERS, ICAHN MASTER, ICAHN MASTER II, ICAHN MASTER III AND HIGH RIVER
EACH RECOMMEND A VOTE "FOR" THE ELECTION OF THE NOMINEES LISTED IN PROPOSAL 1
BELOW. NO RECOMMENDATION IS MADE AS TO THE REMAINING PROPOSALS.
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
STOCKHOLDERS ARE URGED TO DATE, MARK, SIGN, AND RETURN THIS PROXY.
YOUR VOTE IS VERY IMPORTANT TO US.
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) Lucian A. Bebchuk FOR ALL WITHHELD FOR ALL
(02) Frank J. Biondi, Jr. NOMINEES FROM ALL EXCEPT
(03) John H. Chapple NOMINEES
(04) Mark Cuban
(05) Adam Dell
(06) Carl C. Icahn
(07) Keith A. Meister
(08) Edward H. Meyer
(09) Brian S. Posner
(10) Robert K. Shaye
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. YOUR SHARES WILL BE VOTED FOR
THE REMAINING NOMINEE(S).
- -------------------------------------------------------
2. Ratification of appointment of Pricewaterhouse [ ] [ ] [ ]
Coopers LLP as independent auditors for 2008. FOR AGAINST ABSTAIN
3. [INSERT] [ ] [ ] [ ]
FOR AGAINST ABSTAIN
4. [INSERT] [ ] [ ] [ ]
FOR AGAINST ABSTAIN
MARK HERE IF YOU PLAN TO ATTEND THE MEETING [ ]
MARK HERE IF AN ADDRESS CHANGE HAS BEEN [ ]
NOTED ON THE REVERSE SIDE OF THIS CARD
Please be sure to sign and date this Proxy.
_____________________________________ __________
SIGNATURE(S) OF STOCKHOLDER(S) DATE
______________________________________________________________
TITLE, IF ANY
SIGNATURE (IF HELD JOINTLY): ________________________________