ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
c/o Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, NY 10153
January 29, 2009
VIA FEDERAL EXPRESS AND FACSIMILE
- ---------------------------------
Amylin Pharmaceuticals, Inc.
9360 Towne Centre Drive
San Diego, California 92121
Attention: Corporate Secretary
Re: Stockholders' Notice of Nomination of Persons for Election as Directors and
Other Proposed Business at the 2009 Annual Meeting of Stockholders of
Amylin Pharmaceuticals, Inc. (the "Corporation")
---------------------------------------------------------------------------
Ladies and Gentlemen:
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") and Icahn Partners Master Fund III LP, a Cayman
Islands exempted limited partnership ("Icahn Master III") and collectively with
Icahn Partners, Icahn Master and Icahn Master II, the "Record Holders" and each
of them a "Record Holder") hereby submit this notice (this "Notice") on the date
hereof pursuant to the requirements (the "Bylaw Requirements") set forth in
Article III, Section 5 of the Fourth Amended and Restated Bylaws of the
Corporation, attached as Exhibit 3.2 to the Form 8-K filed by the Corporation
with the U.S. Securities and Exchange Commission (the "SEC") on December 8, 2008
(the "Bylaws") of (i) their intent to nominate the Slate (as defined below) for
election as directors of the Corporation at the 2009 annual meeting of
stockholders of the Corporation (the "Annual Meeting"), or a special meeting of
stockholders of the Corporation called for a similar purpose, and as a separate
matter (ii) their intent to propose at the Annual Meeting, or a special meeting
of stockholders of the Corporation called for a similar purpose (the
"Reincorporation Proposal") a resolution to the stockholders of the Corporation
whereby the stockholders request that the Board of Directors of the Corporation
promptly initiate and complete the necessary and appropriate process so that the
stockholders of the Corporation can choose whether to change the Corporation's
jurisdiction of incorporation from Delaware to North Dakota and to become
subject to the North Dakota Publicly Traded Corporations Act (the "North Dakota
Act"). This Notice is submitted by the Record Holders and on behalf of the
Beneficial Owners (as defined in Annex A).
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. (1) Each of Icahn Master, Icahn Master II, Icahn
Master III and Icahn Partners is primarily engaged in the business of investing
in securities.
As of the close of business on January 29, 2009 (i) each of the Record
Holders is the record owner of 1000 shares of Common Stock, par value $0.001 per
share, of the Corporation (the "Shares"); (ii) Icahn Partners is the direct
beneficial owner of 4,223,169 Shares (including the 1000 Shares of which Icahn
Partners is the stockholder of record); (iii) Icahn Master is the direct
beneficial owner of 5,231,070 Shares (including the 1000 Shares of which Icahn
Master is the stockholder of record); (iv) Icahn Master II is the direct
beneficial owner of 1,932,647 Shares (including the 1000 Shares of which Icahn
Master II is the stockholder of record); and (v) Icahn Master III is the direct
beneficial owner of 739,271 Shares (including the 1000 Shares of which Icahn
Master III is the stockholder of record), in each case as further described in
Annex A. Carl C. Icahn by virtue of his relationship to Icahn Partners, Icahn
Master, Icahn Master II and Icahn Master III is deemed to beneficially own (as
that term is defined in Rule 13d-3 of the Securities Act of 1933, as amended)
the Shares which Icahn Partners, Icahn Master, Icahn Master II and Icahn Master
III directly beneficially own, as further described in Annex A.
_________________________
(1) Please note that on the stock certificate of Icahn Partners, the address of
767 Fifth Avenue, 47th Floor, New York, New York 10153-0023 is listed as
its records address on the books of the Corporation, on the stock
certificate of Icahn Master III, the address of c/o Icahn Offshore LP, 767
Fifth Avenue, 47th Floor, New York, New York 10153-0023 is listed as its
records address on the books of the Corporation, and the following address
is set forth on the stock certificate of each of Icahn Master and Icahn
Master II as its record address on the books of the Corporation: c/o Icahn
Management LP, 767 Fifth Avenue, 47th Floor, New York, New York 10153-0023.
Each Record Holder hereby represents that it intends to appear in person or
by proxy at the Annual Meeting to nominate for election as directors of the
Corporation the following persons (each, a "Nominee" and collectively, the
"Slate"):
Dr. Alexander J. Denner
Dr. Thomas F. Deuel
Mr. Jules Haimovitz
Dr. Peter Liebert
Dr. David Sidransky
As a separate matter, each Record Holder hereby represents that it intends
to appear in person or by proxy at the Annual Meeting to propose a resolution to
the stockholders of the Corporation whereby the stockholders request that the
Board of Directors of the Corporation promptly initiate and complete the
necessary and appropriate process so that the stockholders of the Corporation
can choose whether to change the Corporation's jurisdiction of incorporation
from Delaware to North Dakota and to become subject to the North Dakota Act. The
Record Holders' reasons for conducting such business at the Annual Meeting are
as follows:
The Reincorporation Proposal is a proper matter for stockholder action
under the General Corporation Law of Delaware. The Record Holders believe that
it is in the best interests of the Corporation's stockholders to change the
Corporation's jurisdiction of incorporation from Delaware to North Dakota and
for the Corporation to become subject to the North Dakota Act. The Record
Holders believe that North Dakota is the most stockholder-friendly jurisdiction
in the United States and that being incorporated there and subject to the North
Dakota Act would give the stockholders considerably more protection against
management entrenchment and would make it easier for third parties to
successfully bid for the Corporation. Although there can be no assurances, this
could enable stockholders, in some cases, to achieve a premium over market for
their shares.
The proposal states:
"RESOLVED, that the stockholders of the Corporation hereby request the
Board of Directors of the Corporation to take all action as is necessary
and appropriate to properly initiate and complete the process to change the
Corporation's jurisdiction of incorporation from Delaware to North Dakota
and to become subject to the North Dakota Publicly Traded Corporations
Act."
In this Notice: (i) certain information relating to the Record Holders and
Beneficial Owner(s) (as defined in Annex A) is set forth in the body of this
Notice (including the footnotes hereto) and Annex A; (ii) certain information
relating to each Nominee is set forth in the body of this Notice and Annex B;
and (iii) the written consent of each Nominee to being named in the proxy
statement as a nominee and to serving as a director of the Corporation if
elected is attached as Annex C. Each Nominee is also party to an agreement
substantially in the form attached hereto as Annex D, pursuant to which the
Record Holders have agreed to pay certain fees to such Nominee (other than Dr.
Denner) and to indemnify each such Nominee with respect to certain costs
incurred by such Nominees in connection with the proxy contest relating to the
Annual Meeting (the "Nominee Agreement").
Each Nominee, Record Holder and Beneficial Owner has an interest in the
election of directors at the Annual Meeting: (i) directly and/or indirectly
through the beneficial ownership (if any) of Shares, as described on the
applicable attachment to Annex A and (ii) pursuant to the Nominee Agreement, if
applicable, relating to such Nominee and each Record Holder.
With respect to each Nominee, other than as disclosed in this Notice, (i)
such Nominee 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
the Corporation, 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 Nominee nor any of such Nominee's associates have any arrangement
or understanding with any person with respect to (A) any future employment by
the Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Record Holder, other than as disclosed in this Notice,
(i) such Record Holder 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 the Corporation, 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 Record Holder nor any of such
Record Holder's associates have any arrangement or understanding with any person
with respect to (A) any future employment by the Corporation or its affiliates
or (B) any future transactions to which the Corporation or any of its affiliates
will or may be a party.
With respect to each Beneficial Owner, other than as disclosed in this
Notice, (i) such Beneficial Owner 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 the Corporation, 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 Beneficial Owner nor any of such
Beneficial Owner's associates have any arrangement or understanding with any
person with respect to (A) any future employment by the Corporation or its
affiliates or (B) any future transactions to which the Corporation or any of its
affiliates will or may be a party.
With respect to each Nominee, such Nominee is independent under the
independence standards applicable to the Corporation under paragraph (a)(1) of
Item 407 of Regulation S-K.
The Record Holders, Beneficial Owners and the Nominees have no information
to disclose in response to Section 5(b)(C)(iv)-(ix) of the Bylaws except as set
forth in this Notice.
The Record Holders and the Beneficial Owners intend to deliver a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry the
Reincorporation Proposal and a sufficient number of the holders of the
Corporation's voting shares to elect the Slate.
In consideration of providing certain investment advisory, administrative
and back office services to the Record Holders, Icahn Onshore LP and Icahn
Offshore LP, the general partners of the Record Holders (the "General
Partners"), receive from the Record Holders on an annual basis (i) special
profits interest allocations generally equal to 2.5% of the balance in each of
the Record Holders' capital accounts attributable to fee-paying investors and
(ii) incentive allocations generally equal to 25% of the net profits generated
by fee-paying investors of the Record Holders. 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 Record Holders (including
any increase or decrease in the value of shares of the Corporation). The General
Partners are owned by Icahn Capital LP, 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 91.2% of
the outstanding depositary units representing limited partnership interests in
Icahn Enterprises and approximately 86.5% of the preferred units in Icahn
Enterprises.
In connection with his 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 affiliates from the Record
Holders. Because only a portion of such profit interests are distributed, Dr.
Denner also has capital accounts in the Funds. 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.
The Annexes and all attachments thereto are hereby incorporated into and
made a part of this Notice. Accordingly, all matters disclosed in any part of
this Notice, including the Annexes and all attachments thereto should be deemed
disclosed for all purposes of this Notice. All upper case terms appearing in the
Annexes and all attachments thereto that are not defined in such Annexes and
attachments shall have the meanings given in the body of this Notice or the
Annexes, as applicable.
Information is set forth herein as of the close of business on January 29,
2009. Neither the delivery of this Notice nor any delivery by any Record Holder,
Beneficial Owner, or Nominee of additional information to the Corporation from
and after the date hereof shall be deemed to constitute an admission by any
Record Holder, Beneficial Owner, Nominee or any of their respective affiliates
(if any) that such delivery is required or that each and every item or any item
of information is required or as to the legality or enforceability of any notice
requirement or any other matter, or a waiver by any Record Holder, Beneficial
Owner, Nominee or any of their respective affiliates (if any) of their right to
contest or challenge, in any way, the validity or enforceability of any notice
requirement or any other matter (including actions taken by the Board of
Directors of the Corporation in anticipation of or following receipt of this
Notice). Furthermore, if the Board of Directors of the Corporation increases the
number of directors to be nominated and elected at the Annual Meeting, the
Record Holders reserve the right to add additional director nominees in respect
of each such additional directorship. In the event any statement or other
information in this Notice is not true, or to the extent any applicable
information has been omitted from this Notice, the Record Holders, Beneficial
Owners and Nominees reserve the right to correct and/or supplement any such
statement or other information set forth in this Notice.
As a courtesy, the Record Holders, Beneficial Owners and Nominees represent
that they will notify the Corporation in writing of the class and number of such
shares owned of record and beneficially (if any) as of the record date for the
meeting promptly following the later of the record date or the date notice of
the record date is first publically disclosed, however, such representation
shall not be an admission by any Record Holder, Nominee or Beneficial Owner or
any of their respective affiliates of the legality thereof or that such delivery
is required.
The Record Holders have filed a Schedule 13D under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with the SEC relating to the
Corporation (the "Filing"). The Filing, all attachments and any amendments
thereto and all future amendments thereto, are hereby incorporated into and made
a part of this Notice (but only to the extent that the information disclosed
therein constitutes information regarding the Record Holders that is required to
be set forth in this Notice pursuant to the Bylaw Requirements). Accordingly,
all such matters disclosed in any part of the Filing, including all attachments
thereto, should be deemed disclosed for all purposes of this Notice. The Filing,
a copy of which was previously delivered to the Corporation pursuant to Rule
13d-7 under the Exchange Act, is available at no charge at the SEC's website at
http://www.sec.gov. If the Corporation requests additional copies of the Filing,
the Record Holders will provide them and original signed questionnaires and/or
consents shall be provided upon request by the Corporation.
[Signature page follows]
ICAHN PARTNERS LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
[Signature page to Stockholders' Notice of Intent to Nominate Persons for
Election as Directors and Other Proposed Business at the 2009 Annual
Meeting of Stockholders of Amylin Pharmaceuticals, Inc.]
ANNEX A
CERTAIN INFORMATION ABOUT BENEFICIAL OWNERSHIP
----------------------------------------------
NAME: Carl C. Icahn
AGE: 72
BUSINESS c/o Icahn Capital LP
ADDRESS: 767 Fifth Avenue, 47th Floor
New York, NY 10153
RESIDENCE 15 West 53rd Street, Penthouse B&C
ADDRESS: New York, NY 10019
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
Mr. Icahn has an interest in the election of directors at the Annual Meeting
indirectly through the beneficial ownership of securities, as described below.
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. Prior to August 2007, Mr. Icahn conducted this occupation through his
entities CCI Onshore Corp. and CCI Offshore Corp., since November 2004. 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, 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. 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. 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 August 2007, Mr. Icahn became a director of WCI Communities, Inc.
("WCI"), 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 ("Federal-Mogul"), 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 company that
provides mobile content services and solutions. In August, 2008, Mr. Icahn
became 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.
BENEFICIAL OWNERSHIP OF SECURITIES OF THE
CORPORATION AS OF THE DATE OF THIS NOTICE:
(1) Title of (2) Name of (3) Amount and (4) Percent of
Class Beneficial Nature of Class (3)
Owner (2) Beneficial
Ownership
- ------------------- -------------------- ------------------- -------------------
Common Stock, par Icahn Partners 4,223,169 3.07%
value $0.001 per
share
- ------------------- -------------------- ------------------- -------------------
Common Stock, par Icahn Master 5,231,070 3.80%
value $0.001 per
share
- ------------------- -------------------- ------------------- -------------------
Common Stock, par Icahn Master II 1,932,647 1.40%
value $0.001 per
share
- ------------------- -------------------- ------------------- -------------------
Common Stock, par Icahn Master III 739,271 0.54%
value $0.001 per
share
- ------------------- -------------------- ------------------- -------------------
_________________________
(2) Please note that each Record Holder listed in this table is, as of the date
of this Notice, 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."
(3) Please note that percentages of ownership set forth in this column were
calculated based on the amount of Shares stated to be outstanding as
October 28, 2008 by the Corporation in the Corporation's Form 10-Q filed
for the quarterly period ended September 30, 2008.
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
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. Beckton is 100 percent owned by Carl C. Icahn
("Mr. Icahn," and collectively with 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 Record Holders.
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) Mr. Icahn is c/o Icahn Capital LP., 767 Fifth Avenue, 47th Floor, New York,
NY 10153.
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.
The Record Holders and Carl C. Icahn may be deemed to beneficially own, in
the aggregate, 12,126,157 shares, representing approximately 8.81% of the
Corporation's outstanding Shares (based upon the 137,617,353 Shares stated to be
outstanding as of October 28, 2008 by the Corporation in the Corporation's Form
10Q filed for the quarterly period ended September 30, 2008).
Icahn Partners has sole voting power and sole dispositive power with regard
to 4,223,169 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 5,231,070 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 1,932,647 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 739,271 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 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 4,223,169 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 7,902,988 Shares which
Icahn Master, Icahn Master II and Icahn Master III directly beneficially own.
TWO YEARS SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of any call options, by Mr. Icahn and his affiliates within
the past two years, and the number of shares in each such purchase and sale or
call option exercise.
SHARES PURCHASED/
(SOLD) AND CALL
NAME DATE OPTIONS EXERCISED
- ---- ---- -----------------
High River Limited Partnership 7/25/2007 100,000
High River Limited Partnership 7/26/2007 40,120
High River Limited Partnership 7/27/2007 98,480
High River Limited Partnership 7/30/2007 46,260
High River Limited Partnership 7/31/2007 66,620
High River Limited Partnership 8/1/2007 23,160
High River Limited Partnership 8/2/2007 8,940
High River Limited Partnership 8/30/2007 (23,422)
High River Limited Partnership 8/31/2007 (29,169)
High River Limited Partnership 9/4/2007 (44,070)
High River Limited Partnership 9/5/2007 (3,339)
High River Limited Partnership 9/5/2007 (40,120)
High River Limited Partnership 9/5/2007 (30,701)
High River Limited Partnership 9/6/2007 (45,040)
High River Limited Partnership 9/10/2007 (22,739)
High River Limited Partnership 9/10/2007 (4,661)
High River Limited Partnership 9/11/2007 (11,860)
High River Limited Partnership 9/12/2007 (9,640)
High River Limited Partnership 9/14/2007 (20,099)
High River Limited Partnership 9/14/2007 (31,901)
High River Limited Partnership 9/19/2007 (34,719)
High River Limited Partnership 9/19/2007 (23,160)
High River Limited Partnership 9/19/2007 (2,648)
High River Limited Partnership 9/20/2007 (440)
High River Limited Partnership 9/21/2007 (5,852)
Icahn Partners LP 7/25/2007 128,314
Icahn Partners LP 7/26/2007 51,480
Icahn Partners LP 7/27/2007 126,375
Icahn Partners LP 7/30/2007 59,360
Icahn Partners LP 7/31/2007 85,487
Icahn Partners LP 8/1/2007 30,678
Icahn Partners LP 8/2/2007 11,494
Icahn Partners LP 8/30/2007 (30,061)
Icahn Partners LP 8/31/2007 (37,509)
Icahn Partners LP 9/4/2007 (31,854)
Icahn Partners LP 9/5/2007 (28,890)
Icahn Partners LP 9/5/2007 (51,480)
Icahn Partners LP 9/5/2007 (21,408)
Icahn Partners LP 9/6/2007 (61,836)
Icahn Partners LP 9/10/2007 (37,599)
Icahn Partners LP 9/11/2007 (5,532)
Icahn Partners LP 9/11/2007 (10,743)
Icahn Partners LP 9/12/2007 (13,229)
Icahn Partners LP 9/14/2007 (35,388)
Icahn Partners LP 9/14/2007 (35,962)
Icahn Partners LP 9/19/2007 (49,525)
Icahn Partners LP 9/19/2007 (30,678)
Icahn Partners LP 9/19/2007 (2,861)
Icahn Partners LP 9/20/2007 (604)
Icahn Partners LP 9/21/2007 (8,029)
Icahn Partners LP 1/31/2008 78,865
Icahn Partners LP 2/1/2008 93,018
Icahn Partners LP 2/6/2008 47,847
Icahn Partners LP 2/6/2008 1,000
Icahn Partners LP 2/7/2008 139,515
Icahn Partners LP 2/8/2008 105,839
Icahn Partners LP 2/11/2008 18,701
Icahn Partners LP 2/12/2008 279,088
Icahn Partners LP 2/13/2008 20,644
Icahn Partners LP 2/14/2008 74,798
Icahn Partners LP 2/15/2008 139,401
Icahn Partners LP 2/19/2008 127,271
Icahn Partners LP 2/20/2008 74,798
Icahn Partners LP 2/21/2008 59,838
Icahn Partners LP 2/22/2008 75,398
Icahn Partners LP 2/25/2008 44,958
Icahn Partners LP 2/27/2008 261,809
Icahn Partners LP 2/28/2008 74,802
Icahn Partners LP 2/29/2008 88,492
Icahn Partners LP 3/3/2008 127,470
Icahn Partners LP 3/4/2008 104,261
Icahn Partners LP 3/5/2008 128,713
Icahn Partners LP 3/6/2008 113,739
Icahn Partners LP 3/10/2008 122,505
Icahn Partners LP 3/11/2008 56,870
Icahn Partners LP 3/13/2008 36,598
Icahn Partners LP 9/9/2008 37,584
Icahn Partners LP 9/11/2008 888,670(4)
Icahn Partners LP 9/11/2008 358,423(5)
Icahn Partners LP 9/25/2008 57,919
Icahn Partners LP 9/26/2008 141,749
Icahn Partners LP 9/29/2008 37,599
Icahn Partners LP 9/30/2008 11,906
Icahn Partners LP 10/3/2008 47,767
Icahn Partners LP 1/29/2009 145,314
Icahn Partners Master Fund LP 7/25/2007 187,201
Icahn Partners Master Fund LP 7/26/2007 75,105
Icahn Partners Master Fund LP 7/27/2007 184,357
Icahn Partners Master Fund LP 7/30/2007 86,600
Icahn Partners Master Fund LP 7/31/2007 124,713
Icahn Partners Master Fund LP 8/1/2007 41,253
Icahn Partners Master Fund LP 8/2/2007 16,685
Icahn Partners Master Fund LP 8/30/2007 (43,783)
Icahn Partners Master Fund LP 8/31/2007 (54,438)
Icahn Partners Master Fund LP 9/4/2007 (88,980)
Icahn Partners Master Fund LP 9/4/2007 (10,409)
Icahn Partners Master Fund LP 9/5/2007 (64,696)
Icahn Partners Master Fund LP 9/5/2007 (69,270)
Icahn Partners Master Fund LP 9/6/2007 (81,361)
Icahn Partners Master Fund LP 9/10/2007 (33,726)
Icahn Partners Master Fund LP 9/10/2007 (15,771)
Icahn Partners Master Fund LP 9/11/2007 (21,424)
Icahn Partners Master Fund LP 9/12/2007 (17,415)
Icahn Partners Master Fund LP 9/14/2007 (31,990)
Icahn Partners Master Fund LP 9/14/2007 (61,964)
Icahn Partners Master Fund LP 9/19/2007 (62,749)
Icahn Partners Master Fund LP 9/19/2007 (41,253)
Icahn Partners Master Fund LP 9/19/2007 (5,324)
Icahn Partners Master Fund LP 9/20/2007 (794)
Icahn Partners Master Fund LP 9/21/2007 (10,567)
Icahn Partners Master Fund LP 1/31/2008 91,252
Icahn Partners Master Fund LP 2/1/2008 109,421
Icahn Partners Master Fund LP 2/6/2008 56,565
Icahn Partners Master Fund LP 2/6/2008 1,000
Icahn Partners Master Fund LP 2/7/2008 163,220
Icahn Partners Master Fund LP 2/8/2008 123,826
Icahn Partners Master Fund LP 2/11/2008 21,876
Icahn Partners Master Fund LP 2/12/2008 326,512
Icahn Partners Master Fund LP 2/13/2008 24,153
Icahn Partners Master Fund LP 2/14/2008 87,509
Icahn Partners Master Fund LP 2/15/2008 163,089
Icahn Partners Master Fund LP 2/19/2008 148,895
Icahn Partners Master Fund LP 2/20/2008 87,508
Icahn Partners Master Fund LP 2/21/2008 70,006
Icahn Partners Master Fund LP 2/22/2008 88,210
Icahn Partners Master Fund LP 2/25/2008 52,465
Icahn Partners Master Fund LP 2/27/2008 306,273
Icahn Partners Master Fund LP 2/28/2008 87,506
Icahn Partners Master Fund LP 2/29/2008 103,521
Icahn Partners Master Fund LP 3/3/2008 76,164
Icahn Partners Master Fund LP 3/4/2008 118,033
Icahn Partners Master Fund LP 3/5/2008 145,718
Icahn Partners Master Fund LP 3/6/2008 128,762
Icahn Partners Master Fund LP 9/9/2008 43,023
Icahn Partners Master Fund LP 9/11/2008 1,027,533(6)
Icahn Partners Master Fund LP 9/11/2008 431,466(7)
Icahn Partners Master Fund LP 9/11/2008 244,502(8)
Icahn Partners Master Fund LP 9/25/2008 63,488
Icahn Partners Master Fund LP 9/26/2008 162,155
Icahn Partners Master Fund LP 9/29/2008 43,012
Icahn Partners Master Fund LP 9/30/2008 13,621
Icahn Partners Master Fund LP 10/1/2008 23,123
Icahn Partners Master Fund LP 10/3/2008 70,374
Icahn Partners Master Fund LP 11/6/2008 115,198
Icahn Partners Master Fund LP 11/7/2008 362,790
Icahn Partners Master Fund LP 1/29/2009 49,301
Icahn Partners Master Fund II L.P. 7/25/2007 61,247
Icahn Partners Master Fund II L.P. 7/26/2007 24,573
Icahn Partners Master Fund II L.P. 7/27/2007 60,308
Icahn Partners Master Fund II L.P. 7/30/2007 28,331
Icahn Partners Master Fund II L.P. 7/31/2007 40,802
Icahn Partners Master Fund II L.P. 8/1/2007 15,176
Icahn Partners Master Fund II L.P. 8/2/2007 5,500
Icahn Partners Master Fund II L.P. 8/30/2007 (14,404)
Icahn Partners Master Fund II L.P. 8/31/2007 (17,941)
Icahn Partners Master Fund II L.P. 9/4/2007 (28,902)
Icahn Partners Master Fund II L.P. 9/4/2007 (3,768)
Icahn Partners Master Fund II L.P. 9/5/2007 (20,805)
Icahn Partners Master Fund II L.P. 9/5/2007 (23,373)
Icahn Partners Master Fund II L.P. 9/6/2007 (26,810)
Icahn Partners Master Fund II L.P. 9/10/2007 (10,125)
Icahn Partners Master Fund II L.P. 9/10/2007 (6,201)
Icahn Partners Master Fund II L.P. 9/11/2007 (7,068)
Icahn Partners Master Fund II L.P. 9/12/2007 (5,743)
Icahn Partners Master Fund II L.P. 9/14/2007 (9,319)
Icahn Partners Master Fund II L.P. 9/14/2007 (21,653)
Icahn Partners Master Fund II L.P. 9/19/2007 (19,149)
Icahn Partners Master Fund II L.P. 9/19/2007 (15,176)
Icahn Partners Master Fund II L.P. 9/19/2007 (1,750)
Icahn Partners Master Fund II L.P. 9/20/2007 (263)
Icahn Partners Master Fund II L.P. 9/21/2007 (3,487)
Icahn Partners Master Fund II L.P. 1/31/2008 28,921
Icahn Partners Master Fund II L.P. 2/1/2008 33,747
Icahn Partners Master Fund II L.P. 2/6/2008 16,971
Icahn Partners Master Fund II L.P. 2/6/2008 1,000
Icahn Partners Master Fund II L.P. 2/7/2008 50,969
Icahn Partners Master Fund II L.P. 2/8/2008 38,665
Icahn Partners Master Fund II L.P. 2/11/2008 6,831
Icahn Partners Master Fund II L.P. 2/12/2008 101,959
Icahn Partners Master Fund II L.P. 2/13/2008 7,542
Icahn Partners Master Fund II L.P. 2/14/2008 27,326
Icahn Partners Master Fund II L.P. 2/15/2008 50,927
Icahn Partners Master Fund II L.P. 2/19/2008 46,495
Icahn Partners Master Fund II L.P. 2/20/2008 27,326
Icahn Partners Master Fund II L.P. 2/21/2008 21,861
Icahn Partners Master Fund II L.P. 2/22/2008 27,545
Icahn Partners Master Fund II L.P. 2/25/2008 16,370
Icahn Partners Master Fund II L.P. 2/27/2008 95,636
Icahn Partners Master Fund II L.P. 2/28/2008 27,324
Icahn Partners Master Fund II L.P. 2/29/2008 32,325
Icahn Partners Master Fund II L.P. 3/3/2008 48,284
Icahn Partners Master Fund II L.P. 3/4/2008 38,177
Icahn Partners Master Fund II L.P. 3/5/2008 47,132
Icahn Partners Master Fund II L.P. 3/6/2008 41,649
Icahn Partners Master Fund II L.P. 3/10/2008 44,859
Icahn Partners Master Fund II L.P. 3/11/2008 20,824
Icahn Partners Master Fund II L.P. 3/13/2008 13,401
Icahn Partners Master Fund II L.P. 5/12/2008 36,399
Icahn Partners Master Fund II L.P. 5/13/2008 86,327
Icahn Partners Master Fund II L.P. 5/14/2008 67,854
Icahn Partners Master Fund II L.P. 5/15/2008 79,781
Icahn Partners Master Fund II L.P. 5/21/2008 40,431
Icahn Partners Master Fund II L.P. 5/22/2008 13,819
Icahn Partners Master Fund II L.P. 9/9/2008 14,052
Icahn Partners Master Fund II L.P. 9/11/2008 8,769(9)
Icahn Partners Master Fund II L.P. 9/11/2008 152,160(10)
Icahn Partners Master Fund II L.P. 9/25/2008 20,703
Icahn Partners Master Fund II L.P. 9/26/2008 52,964
Icahn Partners Master Fund II L.P. 9/29/2008 14,048
Icahn Partners Master Fund II L.P. 9/30/2008 4,449
Icahn Partners Master Fund II L.P. 10/1/2008 13,413
Icahn Partners Master Fund II L.P. 10/3/2008 23,076
Icahn Partners Master Fund II L.P. 11/7/2008 25,022
Icahn Partners Master Fund II L.P. 1/29/2009 365,314
Icahn Partners Master Fund III L.P 7/25/2007 23,238
Icahn Partners Master Fund III L.P 7/26/2007 9,322
Icahn Partners Master Fund III L.P 7/27/2007 22,880
Icahn Partners Master Fund III L.P 7/30/2007 10,749
Icahn Partners Master Fund III L.P 7/31/2007 15,478
Icahn Partners Master Fund III L.P 8/1/2007 5,533
Icahn Partners Master Fund III L.P 8/2/2007 2,081
Icahn Partners Master Fund III L.P 8/30/2007 (5,440)
Icahn Partners Master Fund III L.P 8/31/2007 (6,790)
Icahn Partners Master Fund III L.P 9/4/2007 (11,008)
Icahn Partners Master Fund III L.P 9/4/2007 (1,362)
Icahn Partners Master Fund III L.P 9/5/2007 (7,960)
Icahn Partners Master Fund III L.P 9/5/2007 (8,758)
Icahn Partners Master Fund III L.P 9/6/2007 (10,153)
Icahn Partners Master Fund III L.P 9/10/2007 (3,969)
Icahn Partners Master Fund III L.P 9/10/2007 (2,209)
Icahn Partners Master Fund III L.P 9/11/2007 (2,673)
Icahn Partners Master Fund III L.P 9/12/2007 (2,173)
Icahn Partners Master Fund III L.P 9/14/2007 (3,694)
Icahn Partners Master Fund III L.P 9/14/2007 (8,030)
Icahn Partners Master Fund III L.P 9/19/2007 (7,448)
Icahn Partners Master Fund III L.P 9/19/2007 (5,533)
Icahn Partners Master Fund III L.P 9/19/2007 (663)
Icahn Partners Master Fund III L.P 9/20/2007 (99)
Icahn Partners Master Fund III L.P 9/21/2007 (1,319)
Icahn Partners Master Fund III L.P. 1/31/2008 10,962
Icahn Partners Master Fund III L.P. 2/1/2008 12,814
Icahn Partners Master Fund III L.P. 2/6/2008 5,817
Icahn Partners Master Fund III L.P. 2/6/2008 1,000
Icahn Partners Master Fund III L.P. 2/7/2008 19,336
Icahn Partners Master Fund III L.P. 2/8/2008 14,670
Icahn Partners Master Fund III L.P. 2/11/2008 2,592
Icahn Partners Master Fund III L.P. 2/12/2008 38,681
Icahn Partners Master Fund III L.P. 2/13/2008 2,861
Icahn Partners Master Fund III L.P. 2/14/2008 10,367
Icahn Partners Master Fund III L.P. 2/15/2008 19,321
Icahn Partners Master Fund III L.P. 2/19/2008 17,639
Icahn Partners Master Fund III L.P. 2/20/2008 10,368
Icahn Partners Master Fund III L.P. 2/21/2008 8,295
Icahn Partners Master Fund III L.P. 2/22/2008 10,447
Icahn Partners Master Fund III L.P. 2/25/2008 6,207
Icahn Partners Master Fund III L.P. 2/27/2008 36,282
Icahn Partners Master Fund III L.P. 2/28/2008 10,368
Icahn Partners Master Fund III L.P. 2/29/2008 12,262
Icahn Partners Master Fund III L.P. 3/3/2008 19,164
Icahn Partners Master Fund III L.P. 3/4/2008 14,529
Icahn Partners Master Fund III L.P. 3/5/2008 17,937
Icahn Partners Master Fund III L.P. 3/6/2008 15,850
Icahn Partners Master Fund III L.P. 3/10/2008 17,072
Icahn Partners Master Fund III L.P. 3/11/2008 7,924
Icahn Partners Master Fund III L.P. 3/13/2008 5,100
Icahn Partners Master Fund III L.P. 5/12/2008 13,835
Icahn Partners Master Fund III L.P. 5/13/2008 32,813
Icahn Partners Master Fund III L.P. 5/14/2008 25,794
Icahn Partners Master Fund III L.P. 5/15/2008 30,324
Icahn Partners Master Fund III L.P. 5/21/2008 15,228
Icahn Partners Master Fund III L.P. 5/22/2008 5,391
Icahn Partners Master Fund III L.P. 9/9/2008 5,341
Icahn Partners Master Fund III L.P. 9/11/2008 2,796(11)
Icahn Partners Master Fund III L.P. 9/11/2008 57,951(12)
Icahn Partners Master Fund III L.P. 9/25/2008 7,890
Icahn Partners Master Fund III L.P. 9/26/2008 20,132
Icahn Partners Master Fund III L.P. 9/29/2008 5,341
Icahn Partners Master Fund III L.P. 9/30/2008 1,691
Icahn Partners Master Fund III L.P. 10/1/2008 5,837
Icahn Partners Master Fund III L.P. 10/3/2008 8,783
Icahn Partners Master Fund III L.P. 11/7/2008 12,188
Icahn Partners Master Fund III L.P. 1/29/2009 140,071
_________________________
(4) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(5) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(6) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(7) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(8) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-C to this Annex A.
(9) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(10) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(11) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(12) The Record Holder acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
Shares purchased by each of the Record Holders are maintained in margin accounts
that include positions in securities in addition to the Shares. As of January
28, 2009, the indebtedness of the margin account of each of Icahn Partners,
Icahn Master, Icahn Master II and Icahn Master III was approximately
$106,194,058, $205,747,200, $61,933,751, and $18,583,919, respectively.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Record Holders, which
were written by Merrill Lynch International with a $22.50 strike price and an
expiration date of March 10, 2010, and which provide for physical settlement.
These are further described in the chart set forth below. On September 11, 2008,
the Record Holders exercised all of the call options described in the chart
below.
NUMBER OF
SHARES SUBJECT
NAME DATE TO OPTION PREMIUM
- ---- ---- --------- -------
Icahn Partners LP 5/12/2008 98,799 680,665.83
Icahn Partners LP 5/12/2008 7,565 51,729.47
Icahn Partners LP 5/13/2008 234,322 1,562,646.55
Icahn Partners LP 5/14/2008 184,122 1,307,487.15
Icahn Partners LP 5/15/2008 216,614 1,705,965.22
Icahn Partners LP 5/21/2008 109,365 910,113.66
Icahn Partners LP 5/22/2008 37,883 317,648.96
Icahn Partners Master 5/12/2008 112,467 774,830.15
Fund LP
Icahn Partners Master 5/12/2008 24,534 167,763.49
Fund LP
Icahn Partners Master 5/13/2008 266,738 1,778,822.37
Fund LP
Icahn Partners Master 5/14/2008 209,729 1,489,327.57
Fund LP
Icahn Partners Master 5/15/2008 246,446 1,940,910.12
Fund LP
Icahn Partners Master 5/21/2008 124,712 1,037,828.32
Fund LP
Icahn Partners Master 5/22/2008 42,907 359,775.20
Fund LP
Icahn Partners Master 5/12/2008 8,769 59,962.42
Fund II L.P.
Icahn Partners Master 5/12/2008 2,796 19,119.05
Fund III, L.P.
ANNEX A
ATTACHMENT 1-B
The following are American call options purchased by the Record Holders, which
were written by Merrill Lynch International with a $14.25 strike price and an
expiration date of September 7, 2010, and which provide for physical settlement.
These are further described in the chart set forth below. On September 11, 2008,
the Record Holders exercised all of the call options described in the chart
below.
NUMBER OF
SHARES SUBJECT
NAME DATE TO OPTION PREMIUM
- ---- ---- --------- -------
Icahn Partners LP 9/2/2008 302,048 2,254,697.71
Icahn Partners LP 9/3/2008 56,375 418,477.26
Icahn Partners Master 9/2/2008 366,932 2,739,037.30
Fund LP
Icahn Partners Master 9/3/2008 64,534 479,042.34
Fund LP
Icahn Partners Master 9/2/2008 131,081 978,480.34
Fund II L.P.
Icahn Partners Master 9/3/2008 21,079 156,471.52
Fund II L.P.
Icahn Partners Master 9/2/2008 49,939 372,779.65
Fund III L.P.
Icahn Partners Master 9/3/2008 8,012 59,473.88
Fund III L.P.
ANNEX A
ATTACHMENT 1-C
The following are American call options purchased by the Record Holders, which
were written by UBS AG with a $16.15 strike price and an expiration date of
September 7, 2010, and which provide for physical settlement. These are further
described in the chart set forth below. On September 11, 2008, the Record
Holders exercised all of the call options described in the chart below.
NUMBER OF
SHARES SUBJECT
NAME DATE TO OPTION PREMIUM
- ---- ---- --------- -------
Icahn Partners Master 3/10/2008 138,688 1,164,798.91
Fund LP
Icahn Partners Master 3/11/2008 64,382 517,792.23
Fund LP
Icahn Partners Master 3/13/2008 41,432 359,563.47
Fund LP
ANNEX A
ATTACHMENT 1-D
The following are European put options bought by the Record Holders, which were
written by Merrill Lynch International and have a $22.50 strike price and an
expiration date of March 10, 2010, and provide for cash settlement only and are
further described in the chart set forth below. On September 11, 2008, the
Record Holders 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 PREMIUM
- ---- ---- -------- -------
Icahn Partners LP 5/12/2008 98,799 987.99
Icahn Partners LP 5/12/2008 7,565 75.65
Icahn Partners LP 5/13/2008 234,322 2,343.22
Icahn Partners LP 5/14/2008 184,122 1,841.22
Icahn Partners LP 5/15/2008 216,614 2,166.14
Icahn Partners LP 5/21/2008 109,365 1,093.65
Icahn Partners LP 5/22/2008 37,883 378.83
Icahn Partners Master 5/12/2008 112,467 1,124.67
Fund LP
Icahn Partners Master 5/12/2008 24,534 245.34
Fund LP
Icahn Partners Master 5/13/2008 266,738 2,667.38
Fund LP
Icahn Partners Master 5/14/2008 209,729 2,097.29
Fund LP
Icahn Partners Master 5/15/2008 246,446 2,464.46
Fund LP
Icahn Partners Master 5/21/2008 124,712 1,247.12
Fund LP
Icahn Partners Master 5/22/2008 42,907 429.07
Fund LP
Icahn Partners Master 5/12/2008 8,769 87.69
Fund II L.P.
Icahn Partners Master 5/12/2008 2,796 27.96
Fund III, L.P.
ANNEX A
ATTACHMENT 1-E
The following are European put options bought by the Record Holders, which were
written by Merrill Lynch International and have a $14.25 strike price and an
expiration date of September 7, 2010 and provide for cash settlement only and
are further described in the chart set forth below. On September 11, 2008, the
Record Holders exercised all of the call options described in Annex A
Attachments 1-B, and upon exercise of the call options, all of the put options
described below expired pursuant to their terms.
OPTION
NAME DATE QUANTITY PREMIUM ($)
- ---- ---- -------- -----------
Icahn Partners LP 9/2/2008 302,048 3,020.48
Icahn Partners LP 9/3/2008 56,375 563.75
Icahn Partners Master 9/2/2008 366,932 3,669.32
Fund LP
Icahn Partners Master 9/3/2008 64,534 645.34
Fund LP
Icahn Partners Master 9/2/2008 131,081 1,310.81
Fund II L.P.
Icahn Partners Master 9/3/2008 21,079 210.79
Fund II L.P.
Icahn Partners Master 9/2/2008 49,939 499.39
Fund III, L.P.
Icahn Partners Master 9/3/2008 8,012 80.12
Fund III, L.P.
ANNEX A
ATTACHMENT 1-F
The following are European put options bought by the Record Holders, which were
written by UBS AG and have a $16.15 strike price and an expiration date of March
10, 2010 and provide for cash settlement only and are further described in the
chart set forth below. On September 11, 2008, the Record Holders exercised all
of the call options described in Annex A Attachments 1-C, and upon exercise of
the call options, all of the put options described below expired pursuant to
their terms.
OPTION
NAME DATE QUANTITY PREMIUM ($)
- ---- ---- -------- -----------
Icahn Partners Master 3/10/2008 138,688 1,386.88
Fund LP
Icahn Partners Master 3/11/2008 64,382 643.82
Fund LP
Icahn Partners Master 3/13/2008 41,432 414.32
Fund LP
ANNEX B
ATTACHMENT 1
INFORMATION ABOUT NOMINEES
- --------------------------
NAME: Alexander J. Denner, Ph.D.
AGE: 39
BUSINESS c/o Icahn Associates Corp.
ADDRESS: 767 Fifth Avenue, 47th Floor
New York, NY 10153
RESIDENCE 565 Stanwich Road
ADDRESS: Greenwich, CT 06831
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
Dr. Denner has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex D and indirectly
through Dr. Denner's profit interests and capital accounts in the Funds (as
defined below), as described below. Other than in respect of such profit
interests and capital accounts (to the extent applicable), Dr. Denner does not,
and his associates do not, own, beneficially or of record, any shares of capital
stock of the Corporation.
In connection with his 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 affiliates from Icahn Partners, Icahn
Master, Icahn Master II and Icahn Master III (together, the "Funds"). Because
only a portion of such profit interests are distributed, Dr. Denner also has
capital accounts in the Funds. 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. Denner serves 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. From April 2005 to May 2006, Dr. Denner served as a portfolio manager
specializing in healthcare investments for Viking Global Investors. 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. In addition, Dr. Denner has served as a director of
Adventrx Pharmaceuticals Inc., a publicly traded biopharmaceutical company since
October 2006. 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.
ANNEX B
ATTACHMENT 2
INFORMATION ABOUT NOMINEES
- --------------------------
NAME: Thomas F. Deuel, M.D.
AGE: 73
BUSINESS c/o The Scripps Research Institute, MEM 268
ADDRESS: 10550 North Torrey Pines Road
La Jolla, California 92037
RESIDENCE 2123 De Mayo Road
ADDRESS: Del Mar, California 92014
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
Dr. Deuel does not, and his associates do not, own, beneficially or of record,
any shares of capital stock of the Corporation. Dr. Deuel has an interest in the
election of directors at the Annual Meeting pursuant to the Nominee Agreement
attached hereto as Annex D.
Since February 2002, Thomas F. Deuel, M.D., has served as a Professor of
Molecular and Experimental Medicine and Cell Biology, Director of the Division
of Molecular Oncology, Department of Molecular and Experimental Medicine, and
Director of the Vascular Biology Affinity Group at The Scripps Research
Institute. Also, since 1998, Dr. Deuel has served as a Professor of Medicine at
Harvard Medical School. He is currently a Professor Emeritus at Harvard Medical
School. In addition, from 1996 to 2002, Dr. Deuel served as a Director, Division
of Growth Regulation at Beth Israel Hospital, Boston, Massachusetts and, prior
to that, was a Professor of Medicine and Biochemistry and the head of Oncology
Services at the Washington University School of Medicine, St. Louis, Missouri.
He is a member of the Institute of Medicine at the National Academy of Sciences.
Dr. Deuel is also President of the Edward R. Mallinckrodt Foundation, St. Louis,
Missouri. He has served on various editorial boards, including the Journal of
Clinical Investigation and Blood, and currently is on the Editorial Board of
Current Opinion in Hematology and Section Editor for Vascular Biology. Dr. Deuel
has served and continues to serve on numerous scientific advisory boards for
various companies, including scientific advisory board of Imclone Systems
Incorporated, a publicly traded biopharmaceutical company, during the existence
of such board (from 1988 to 2001). From July 2007 to December 2008, Dr. Deuel
had served on Imclone's board of directors. Dr. Deuel has earned many
professional honors and awards and holds an M.D. from Columbia University and an
A.B. from Princeton University.
ANNEX B
ATTACHMENT 3
INFORMATION ABOUT NOMINEES
- --------------------------
NAME: Jules Haimovitz
AGE: 58
BUSINESS 14035 Aubrey Road
ADDRESS: Beverly Hills, California 90210
RESIDENCE 14035 Aubrey Road
ADDRESS: Beverly Hills, California 90210
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
Mr. Haimovitz does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Haimovitz has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
Jules Haimovitz currently serves as President of the Haimovitz Consulting Group.
From July 2002 until July 2007, Mr. Haimovitz served as Vice Chairman and
Managing Partner of Dick Clark Productions Inc., a producer of programming for
television, cable networks and syndicators. From June 1999 to July 2004, Mr.
Haimovitz served in various capacities at Metro Goldwyn Mayer Inc., including as
President of MGM Networks, Inc., a wholly-owned subsidiary of Metro Goldwyn
Mayer Inc., where he led the transformation of MGM's film library into new
entertainment channels for worldwide distribution in digital cable and satellite
television. From July 1997 to February 1999, Mr. Haimovitz served as President
and Chief Operating Officer of King World Productions Inc., a worldwide
distributor of first-run programming, where he oversaw the successful worldwide
distribution of programs such as "Wheel of Fortune," "Jeopardy!," and "The Oprah
Winfrey Show." Haimovitz has also held senior level executive positions at ITC
Entertainment Group, Polygram N.V., Diva Systems Corporation, Video Jukebox
Network Inc., Spelling Entertainment Inc. and Viacom Inc. Mr. Haimowitz also
served as director and chairman of the Audit Committee of ImClone Systems
Incorporated, a publicly traded biopharmaceutical company, from May 2007 until
December 2008. Mr. Haimovitz currently serves on the boards of directors of
Blockbuster, Inc., , a publicly traded provider of in-home movie rental and game
entertainment, Infospace Inc., a publicly traded developer of private-label
search technology, and TVN Entertainment Corporation, a provider of television
on-demand programs and networks. Mr. Haimovitz holds a dual B.A. degree in
Mathematics and Communications, as well as an M.A. degree in Mathematics from
Brooklyn College.
ANNEX B
ATTACHMENT 4
INFORMATION ABOUT NOMINEES
- --------------------------
NAME: Dr. Peter Liebert
AGE: 72
BUSINESS 222 Westchester Avenue
ADDRESS: Suite 403
White Plains, NY 10604
RESIDENCE 67 Pleasant Ridge Road
ADDRESS: Harrison, NY 10528
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
Dr. Peter Liebert does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Dr. Peter Liebert has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
PETER S. LIEBERT , M.D., served as a director of ImClone Systems Inc., a
biotechnology company, between October 2006 and November 2008. Dr. Liebert has
been a pediatric surgeon in private practice since 1968 and is Chief, Pediatric
Surgery of The Stamford Hospital, Stamford, CT. From 1981 to 2006, Dr. Liebert
was Clinical Associate Professor of Surgery at the College of Physicians &
Surgeons of Columbia University. Dr. Liebert is currently President of the
Westchester Surgical Society. Dr. Liebert is a former president of the
Westchester County Medical Society and a former member of the Awards Jury of the
Lasker Foundation. Dr. Liebert is Chairman of the Board of Rx Vitamins, Inc. and
is a director of Cadus Corporation, a publicly held, drug discovery company
controlled by Carl C. Icahn. Dr. Liebert holds an M.D. from Harvard Medical
School and an A.B. from Princeton University.
ANNEX B
ATTACHMENT 5
INFORMATION ABOUT NOMINEES
- --------------------------
NAME: Dr. David Sidransky
AGE: 48
BUSINESS Johns Hopkins University - Cancer Research Building II
ADDRESS: 1550 Orleans Street, Suite 503
Baltimore, MD 21231
RESIDENCE 7800 Seven Mile Lane
ADDRESS: Baltimore, MD 21208
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
Dr. Sidransky does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Dr. Sidransky has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
DAVID SIDRANSKY, M.D., has served as a director of ImClone Systems Inc., a
biotechnology company, between January 2004 and November 2008. Dr. Sidransky is
the Director of the Head and Neck Cancer Research Division at Johns Hopkins
University School of Medicine. He is a founder of several private biotechnology
companies and has served on scientific advisory boards of many private and
publicly traded companies, including MedImmune Inc., Telik Inc., Roche, and
Amgen Inc. Dr. Sidransky is also a director of Alfacell Inc. He was formerly on
the Board of Scientific Counselors at the National Institute of Dental and
Craniofacial Research and a member of the Recombinant DNA Advisory Committee at
the National Institute of Health. Dr. Sidransky serves on numerous editorial
boards and is Senior Editor of Clinical Cancer Research. In addition, he is a
Professor of Oncology, Otolaryngology-Head and Neck Surgery, Cellular &
Molecular Medicine, Urology, Genetics, and Pathology at Johns Hopkins University
and Hospital. Dr. Sidransky is certified in Internal Medicine and Medical
Oncology by the American Board of Medicine. He has over 390 peer-reviewed
publications, and has contributed more than 60 cancer reviews and chapters and
also has numerous issued biotechnology patents. He has been the recipient of
many awards and honors, including the 1997 Sarstedt International Prize from the
German Society of Clinical Chemistry, the 1998 Alton Ochsner Award Relating
Smoking and Health by the American College of Chest Physicians and the 2004
Hinda and Richard Rosenthal Award from the American Association of Cancer
Research. Dr. Sidransky is also the Chairman of the Board of Directors of
Champions Biotechnology, Inc. Dr. Sidransky received his B.A. from Brandeis
University and his M.D. from the Baylor College of Medicine.
ANNEX C
The written consent of each Nominee to being named as a nominee for election as
a director of the Corporation and to serve as a director if elected is attached
to this Annex C. If the Corporation requests original signed statements of
consents, the Record Holders will provide them.
ANNEX C
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Amylin Pharmaceuticals, 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 LP ("Icahn Master II"), Icahn Partners Master Fund III LP ("Icahn
Master III") and collectively with Icahn Partners, Icahn Master and Icahn Master
II, the "Record Holders") and in other materials in connection with the
solicitation of proxies by the Record Holders from stockholders of the Company
to be voted at the 2009 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: January 28, 2009
/s/ Alexander J. Denner
-----------------------
Alexander J. Denner
ANNEX C
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Amylin Pharmaceuticals, 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 LP ("Icahn Master II"), Icahn Partners Master Fund III LP ("Icahn
Master III") and collectively with Icahn Partners, Icahn Master and Icahn Master
II, the "Record Holders") and in other materials in connection with the
solicitation of proxies by the Record Holders from stockholders of the Company
to be voted at the 2009 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: January 28, 2009
/s/ Thomas F. Deuel
-------------------
Thomas F. Deuel
ANNEX C
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Amylin Pharmaceuticals, 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 LP ("Icahn Master II"), Icahn Partners Master Fund III LP ("Icahn
Master III") and collectively with Icahn Partners, Icahn Master and Icahn Master
II, the "Record Holders") and in other materials in connection with the
solicitation of proxies by the Record Holders from stockholders of the Company
to be voted at the 2009 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: January 28, 2009
/s/ Jules Haimovitz
-------------------
Jules Haimovitz
ANNEX C
ATTACHMENT 4
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Amylin Pharmaceuticals, 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 LP ("Icahn Master II"), Icahn Partners Master Fund III LP ("Icahn
Master III") and collectively with Icahn Partners, Icahn Master and Icahn Master
II, the "Record Holders") and in other materials in connection with the
solicitation of proxies by the Record Holders from stockholders of the Company
to be voted at the 2009 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: January 28, 2009
/s/ Peter Liebert
-----------------
Peter Liebert
ANNEX C
ATTACHMENT 5
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Amylin Pharmaceuticals, 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 LP ("Icahn Master II"), Icahn Partners Master Fund III LP ("Icahn
Master III") and collectively with Icahn Partners, Icahn Master and Icahn Master
II, the "Record Holders") and in other materials in connection with the
solicitation of proxies by the Record Holders from stockholders of the Company
to be voted at the 2009 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: January 29, 2009
/s/ David Sidransky
-------------------
David Sidransky
ANNEX D
Attached to this Annex D is the form of agreement pursuant to which the Record
Holders have agreed to pay certain fees to certain of the Nominees and to
indemnify such Nominees with respect to certain costs incurred by such Nominees
in connection with the proxy contest relating to the Annual Meeting.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
January 28, 2009
[NAME OF NOMINEE]
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 Amylin
Pharmaceuticals, Inc. ("Amylin") in connection with a proxy contest with
management of Amylin in respect of the election of directors of Amylin at the
2009 Annual Meeting of Stockholders of Amylin (the "Annual Meeting"), expected
to be held in the Spring of 2009, or a special meeting of stockholders of Amylin
called for a similar purpose (the "Proxy Contest").
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 paid $25,000 by Icahn unless you are elected to serve as a
director of Amylin at the Annual Meeting or a special meeting of stockholders of
Amylin called for a similar purpose or in connection with a settlement of the
Proxy Contest by Icahn and Amylin, 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 Amylin, or (iii) the withdrawal of the Proxy Contest by Icahn.*
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 Amylin and for use in
creating the proxy material to be sent to stockholders of Amylin 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 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 Amylin informing Amylin that you consent to being
nominated by Icahn for election as a director of Amylin and, if elected, consent
to serving as a director of Amylin. Upon being notified that we have chosen you,
we may forward that consent and your completed questionnaire (or summaries
thereof) to Amylin.
_________________________
* 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 Amylin 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 Amylin's Board of Directors or for any
actions taken by you as a director of Amylin, 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 Amylin 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 Amylin
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 Amylin.
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 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: