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
AMYLIN PHARMACEUTICALS, INC.
(Name of Registrant as Specified In Its Charter)
CARL C. ICAHN
DR. ALEXANDER J. DENNER
DR. THOMAS F. DEUEL
MR. JULES HAIMOVITZ
DR. PETER LIEBERT
DR. DAVID SIDRANSKY
MAYU SRIS
JEFFREY MECKLER
ERIC ENDE
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
2009 ANNUAL MEETING OF STOCKHOLDERS
OF
AMYLIN PHARMACEUTICALS, INC.
-------------------
PROXY STATEMENT
[PRELIMINARY COPY]
OF
CARL C. ICAHN
DR. ALEXANDER J. DENNER
DR. THOMAS F. DEUEL
MR. JULES HAIMOVITZ
DR. PETER LIEBERT
DR. DAVID SIDRANSKY
MAYU SRIS
JEFFREY MECKLER
ERIC ENDE
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
-------------------
To Our Fellow Amylin Stockholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to stockholders ("Stockholders") of Amylin Pharmaceuticals, Inc.
("Amylin" or "Company") in connection with the solicitation of proxies by Carl
C. Icahn and certain of his affiliates and associates, to be used at the 2009
Annual Meeting (the "Annual Meeting") of Stockholders of Amylin which is
scheduled to be held at [ ], local time, on [ ], 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 [ ].
At the Annual Meeting, the Participants (as hereinafter defined) will seek
to elect to the Board of Directors of Amylin the following persons (each a
"Nominee" and collectively, the "Nominees"):
Dr. Alexander J. Denner
Dr. Thomas F. Deuel
Mr. Jules Haimovitz
Dr. Peter Liebert
Dr. David Sidransky
Each of the Nominees has each consented to being named in this Proxy
Statement and, if elected, to serve as a director.
Under the proxy rules as written we are required either to solicit proxies
only for our Nominees, which would result in limiting the ability of
Stockholders to fully exercise their voting rights to vote for a full complement
of directors, or alternatively to solicit proxies in support of our Nominees and
also to seek authority from Stockholders to vote for all of the Amylin Nominees
other than those Amylin Nominees we specify, which enables a Stockholder who
desires to vote for a full complement of twelve director nominees to use the
GOLD proxy card to vote for our Nominees as well as for all or some of those of
the Amylin Nominees for whom we are seeking authority to vote.
At the Annual Meeting, the Icahn Parties (as hereinafter defined) will also
introduce a resolution to ask the Board of Directors (the "Board") of Amylin to
promptly initiate and complete the necessary and appropriate process so that the
Stockholders of Amylin can choose whether to change Amylin's jurisdiction of
incorporation from Delaware to North Dakota and to become subject to the North
Dakota Publicly Traded Corporations Act (the "North Dakota Reincorporation
Proposal"). See "the North Dakota Reincorporation Proposal," below.
The North Dakota Reincorporation Proposal requires for adoption the
affirmative vote of the holders of a majority of the shares present and voting
on the Proposal.
THE PARTICIPANTS URGE YOU TO VOTE FOR DR. ALEXANDER J. DENNER, DR. THOMAS
F. DEUEL, MR. JULES HAIMOVITZ, DR. PETER LIEBERT AND DR. DAVID SIDRANSKY AS
DIRECTORS AND THE ICAHN PARTIES URGE YOU TO VOTE FOR THE NORTH DAKOTA
REINCORPORATION PROPOSAL.
The Nominees and each of the other Participants have no interest in Amylin
other than through the beneficial ownership (if any) of shares of Common Stock,
par value $.001 per share, of Amylin (the "Shares") or other securities (if any)
of Amylin as disclosed herein, and, in the case of Messrs. Ende and Meckler
pursuant to their Consulting Agreements, as described herein, and in the case of
Dr. Thomas F. Deuel, Mr. Jules Haimovitz, Dr. Peter Liebert, and Dr. David
Sidransky, pursuant to an agreement in which certain affiliates of Carl C. Icahn
have agreed to pay each of Dr. Thomas F. Deuel, Mr. Jules Haimovitz, Dr. Peter
Liebert, and Dr. David Sidransky $25,000 and to indemnify each 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").
DR. ALEXANDER J. DENNER, DR. THOMAS F. DEUEL, MR. JULES HAIMOVITZ, DR.
PETER LIEBERT AND DR. DAVID SIDRANSKY ARE COMMITTED TO ACTING IN THE BEST
INTEREST OF ALL STOCKHOLDERS OF AMYLIN. THE PARTICIPANTS URGE YOU TO VOTE YOUR
GOLD PROXY CARD FOR DR. ALEXANDER J. DENNER, DR. THOMAS F. DEUEL, MR. JULES
HAIMOVITZ, DR. PETER LIEBERT AND DR. DAVID SIDRANSKY AND THE ICAHN PARTIES URGE
YOU TO VOTE FOR THE NORTH DAKOTA REINCORPORATION PROPOSAL.
IMPORTANT
According to Amylin's Proxy Statement, the Bylaws and applicable law, the
election of the Nominees requires the affirmative vote of a plurality of the
votes cast by the holders of Amylin's Common Stock at a meeting at which a
quorum is present in person or represented by proxy and the North Dakota
Reincorporation Proposal requires the affirmative vote of a majority of the
votes cast by the holders of Amylin'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 and FOR the North
Dakota Reincorporation Proposal.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY AMYLIN. IF YOU HAVE
ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED GOLD
PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, EXECUTING A VOTE VIA
INTERNET OR TELEPHONE, OR BY VOTING IN PERSON AT THE ANNUAL MEETING. SEE "VOTING
PROCEDURES" AND "PROXY PROCEDURES" BELOW.
If you attend the annual meeting and you beneficially own shares but are
not the record owner, your mere attendance at the Annual Meeting WILL NOT be
sufficient to cancel your prior given proxy card. You must have written
authority from the record owner to vote the shares in its name at the meeting.
Contact D.F. King & Co., Inc. at the number shown in this proxy statement for
assistance or if you have any questions.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
STOCKHOLDERS CALL TOLL-FREE: (800) 488-8075
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
Only holders of record of Amylin's voting securities as of the close of
business on [ ](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 Amylin filed with the Securities and
Exchange Commission ("Amylin'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 Amylin 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 and FOR the North
Dakota Reincorporation Proposal.
VOTE FOR THE NOMINEES AND FOR THE NORTH DAKOTA REINCORPORATION PROPOSAL BY
USING THE ENCLOSED GOLD PROXY TO VOTE TODAY - BY TELEPHONE, BY INTERNET, OR BY
MARKING, SIGNING, DATING AND RETURNING THE GOLD PROXY CARD IN THE POSTAGE-PAID
ENVELOPE PROVIDED TO YOU.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are Dr. Alexander J. Denner, Dr. Thomas F.
Deuel, Mr. Jules Haimovitz, Dr. Peter Liebert, and Dr. David Sidransky), the
participants in the solicitation of proxies (the "Participants") from
stockholders of Amylin Pharmaceuticals, Inc. ("Amylin" or the "Corporation")
include the following: Mr. Carl C. Icahn, Mr. Mayu Sris, Mr. Jeffrey Meckler,
Mr. Eric Ende, Icahn Partners LP, a Delaware limited partnership ("Icahn
Partners"), Icahn Partners Master Fund LP, a Cayman Islands limited partnership
("Icahn Master"), Icahn Partners Master Fund II LP, a Cayman Islands limited
partnership ("Icahn Master II"), Icahn Partners Master Fund III LP, a Cayman
Islands limited partnership ("Icahn Master III"), Beckton Corp., a Delaware
corporation ("Beckton"), Icahn Enterprises G.P. Inc., a Delaware corporation
("Icahn Enterprises GP"), Icahn Enterprises Holdings L.P., a Delaware limited
partnership ("Icahn Enterprises Holdings"), IPH GP LLC, a Delaware limited
liability company ("IPH"), Icahn Capital LP, a Delaware limited partnership
("Icahn Capital"), Icahn Onshore LP, a Delaware limited partnership ("Icahn
Onshore") and Icahn Offshore LP, a Delaware limited partnership ("Icahn
Offshore").
The address of Icahn Partners, 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. The business address of each of Messrs. Icahn, Denner, Sris, Ende and
Meckler is c/o Icahn Associates Corp., 767 Fifth Avenue, Suite 4700, New York,
NY 10153. Dr. Deuel's business address is The Scripps Research Institute, MEM
268, 10550 North Torrey Pines Road, La Jolla, California 92037. Mr. Haimovitz's
business address is 14035 Aubrey Road, Beverly Hills, California 90210. Dr.
Liebert's, business address is 222 Westchester Avenue, Suite 403, White Plains,
New York 10604. Dr. Sidransky's business address is Johns Hopkins University -
Cancer Research Building II, 1550 Orleans Street, Suite 503, Baltimore, Maryland
21231.
Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III
(collectively, the "Icahn Parties" or the "Funds") are entities controlled by
Mr. Icahn. Dr. Denner and Mr. 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 Amylin Stockholders. Dr. Denner,
Messrs. Sris, Ende and Meckler do not own beneficially any interest in
securities of Amylin. Dr. Denner and Mr. Sris will not receive any special
compensation in connection with such solicitation. In connection with their
employment by Mr. Icahn and his affiliated companies, Dr. Denner, among other
employees, has a participatory interest in the profits and fees derived by Mr.
Icahn and/or his affiliated entities the Funds. Because only a portion of such
profit interests are distributed and because of Dr. Denner's other investments
in the Funds, Dr. Denner also has capital accounts in the Funds. Generally, in
the aggregate, Dr. Denner's profit interests and capital accounts in the Funds
entitle him to less than 2% of the profits generated by the Funds. Messrs. Ende
and Meckler are independent consultants retained by the Icahn Parties to solicit
proxies and provide consulting services relating to this solicitation, another
solicitation of proxies by the Icahn Parties and general consulting services
relating to other investments by the Icahn Parties. Assuming the Annual Meeting
of Amylin and the annual meeting relating to the other solicitation are each
held in May and further assuming each contest is successful the agreements
referred to herein may provide for payments of up to approximately $325,000.00
Each of the Icahn Parties 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 Amylin effected during the past
two years and their beneficial ownership of securities of Amylin.
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 Amylin,
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
Amylin or its affiliates or (B) any future transactions to which Amylin or any
of its affiliates will or may be a party.
PROPOSAL 1 -- ELECTION OF DIRECTORS
On January 30, 2009 the Icahn Parties delivered a letter to Amylin,
notifying Amylin that the Icahn Parties intend to nominate and will seek to
elect at the Annual Meeting - Dr. Alexander J. Denner, Dr. Thomas F. Deuel, Mr.
Jules Haimovitz, Dr. Peter Liebert and Dr. David Sidransky as members of the
board of directors of Amylin. Each Nominee, if elected, would serve a one-year
term and hold office until the 2010 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. According to Amylin's Proxy Statement, the
Board of Directors of Amylin (the "Board") intends to nominate twelve candidates
for election as directors at the Annual Meeting. This proxy statement is
soliciting proxies to elect Dr. Alexander J. Denner, Dr. Thomas F. Deuel, Mr.
Jules Haimovitz, Dr. Peter Liebert, and Dr. David Sidransky, and to enable
Stockholders to vote for the Amylin nominees other than [the following persons:
]. Under applicable proxy rules we are required either to solicit proxies only
for the Nominees, which could result in limiting the ability of Stockholders to
fully exercise their voting rights with respect to Amylin's nominees, or to
solicit for the Nominees and to provide Stockholders with a proxy card that
allows such Stockholder to vote for fewer than all of Amylin's nominees, which
enables a Stockholder who desires to vote for the Nominees to also vote for the
Amylin nominees other than those Amylin nominees listed on our proxy card. You
may also withhold authority with respect to any Nominee or any of the Amylin
nominees by writing the name of that nominee on the enclosed GOLD proxy card.
There can be no assurance that any of the Amylin nominees will, if elected,
serve with any of our Nominees.
The Company has disclosed in its 2009 Preliminary Proxy Statement that if
as a result of the election of our Nominees and the nominees of Eastbourne
Capital Management, L.L.C. ("Eastbourne"), a majority of the Board ceases to be
composed of the incumbent directors or other individuals approved by a majority
of the incumbent directors, then a "change of control" under the Company's
credit agreement and a "fundamental change" under the indenture for the
Company's convertible notes due 2014 ("2007 Notes") will be triggered. While the
Company indicated that it believes that its current Board has the ability to
approve any nominees proposed for election by either the Icahn Parties and/or by
Eastbourne at any time up to the election and avoid occurrence of a "fundamental
change" under the indenture for 2007 Notes in the event six or more of those
nominees are elected, the Company's proxy statement has not indicated that the
Board of Directors has made such determination. In addition, the Company has
stated that approval of the non-management nominees cannot avoid the occurrence
of a "change of control" under the credit agreement in the event six or more
non-management are elected. You should refer to the Company's 2009 Preliminary
Proxy Statement and other public filings for more information concerning these
provisions. We strongly believe that the Board of Directors has a fiduciary duty
to tell Stockholders whether the Board will approve the Nominees and the
Eastbourne Nominees, so Stockholders may know the effects of their votes and
thereby exercise free choice in casting those votes.
Dr. Alexander J. Denner, Dr. Thomas F. Deuel, Mr. Jules Haimovitz, Dr.
Peter Liebert and Dr. David Sidransky 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 (other than
Dr. Denner) and to indemnify each such Nominee with respect to certain costs
incurred by each such Nominee in connection with the proxy contest relating to
the Annual Meeting (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 Dr.
Thomas F. Deuel, Mr. Jules Haimovitz, Dr. Peter Liebert, and Dr. David Sidransky
of $25,000), none of the Nominees will receive any compensation from any of the
Participants or any of their affiliates in connection with this proxy
solicitation. Dr. Thomas F. Deuel, Mr. Jules Haimovitz, Dr. Peter Liebert, and
Dr. David Sidransky have an interest in the election of directors at the Annual
Meeting pursuant to the Nominee Agreement relating to such Nominee. Dr. Liebert
has an interest in the election through his ownership of 2,000 Shares. Dr.
Denner has an interest in the election of directors at the Annual Meeting
indirectly through his capital accounts and other investments in the Funds.
The Nominees would not be barred from being considered independent under
the independence requirements of The NASDAQ Stock Market, Inc. and the
independence standards applicable to Amylin 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 Amylin, 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 Amylin or its affiliates or (B) any future transactions to which
Amylin or any of its affiliates will or may be a party.
DR. ALEXANDER J. DENNER
Dr. Alexander J. Denner, 39, 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 November 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.
DR. THOMAS F. DEUEL
Dr. Deuel, 74, is currently 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 since February 2002.
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 November 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.
MR. JULES HAIMOVITZ
Mr. Haimovitz, 58, is currently 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. Haimovitz also
served as director and chairman of the Audit Committee of ImClone Systems
Incorporated, a publicly traded biopharmaceutical company, from May 2007 until
November 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.
DR. PETER LIEBERT
Dr. Liebert, 73, 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 served as a director
of ImClone Systems Inc., a biotechnology company, between October 2006 and
November 2008. Dr. Liebert holds an M.D. from Harvard Medical School and an A.B.
from Princeton University.
DR. DAVID SIDRANSKY
Dr. Sidransky, 48, 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 has served as a director of ImClone
Systems Inc., a biotechnology company, between January 2004 and November 2008.
Dr. Sidransky received his B.A. from Brandeis University and his M.D. from the
Baylor College of Medicine.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF DR. ALEXANDER J. DENNER,
DR. THOMAS F. DEUEL, MR. JULES HAIMOVITZ, DR. PETER LIEBERT AND DR. DAVID
SIDRANSKY 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 DR. ALEXANDER J. DENNER, DR. THOMAS F. DEUEL, MR. JULES HAIMOVITZ,
DR. PETER LIEBERT AND DR. DAVID SIDRANSKY AND THE AMYLIN NOMINEES OTHER THAN
[THE FOLLOWING PERSONS:].
PROPOSAL 2 -- NORTH DAKOTA REINCORPORATION PROPOSAL
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."
The Icahn Parties 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.
Other than the change in corporate domicile, the North Dakota
Reincorporation is not intended to result in any change in the business,
physical location, management, assets, liabilities or net worth of the Company,
nor is it intended to result in any change in location of Company employees,
including the Company's management. Upon consummation of a North Dakota
Reincorporation, it is anticipated that the daily business operations of the
Company will continue as they are presently conducted.
Principal Reasons for the Reincorporation
The Icahn Parties believe that there are several reasons why a
reincorporation to North Dakota and becoming subject to the North Dakota
Publicly Traded Corporations Act is in the best interests of Amylin and its
Stockholders. If the Company were governed by the North Dakota Publicly Traded
Corporations Act:
o The board of directors would be elected by a majority vote (as opposed to a
mere plurality) and directors defeated under the majority voting system
would be prohibited from being appointed by the board of directors to fill
a vacancy;
o The board of directors could not be classified (staggered), each director
would be elected every year and the board of directors would not be able to
change its size when it has reason to believe there will be a contested
election;
o The chairman of the board of directors could not serve as an executive
officer;
o Shareholders who have held five percent (5%) or more of the Company's
outstanding shares for at least two years would have access to management's
proxy statement to nominate directors;
o All shareholders would be reimbursed for proxy contest expenses in the
election of directors, to the extent they are successful;
o Shareholders would be statutorily entitled to an advisory vote each year on
executive compensation (a "say on pay" proposal);
o The ability of the board of directors to adopt and maintain a poison pill
would be limited in several respects;
o Antitakeover provisions proposed for inclusion in the Company's charter or
bylaws would require the prior approval of two-thirds of the shares
entitled to vote;
o Shareholders could not be required to provide more than ninety (90) days
notice in advance of a shareholder meeting when making nominations to the
board of directors and there would be limitations on the type of
information that could be required in connection with such nominations;
o Shareholders who own 5% or more of the Company's outstanding shares would
have a right to propose and approve amendments to the Company's charter
without prior board approval; and
o The Company could not add a requirement to its charter or bylaws that
certain actions require the approval of a super majority vote.
The North Dakota Publicly Traded Corporations Act would provide
shareholders more rights than are generally currently available under other
state corporation laws, including Delaware, where the Company is currently
incorporated. Moreover, the North Dakota Publicly Traded Corporations Act
expressly provides that it "must be liberally construed to protect and enhance
the rights of shareholders in publicly traded corporations."
In addition to providing increased shareholder rights, the North Dakota
Publicly Traded Corporations Act contains a franchise tax system that is
specifically designed to impose significantly less cost on companies than the
Delaware franchise tax system, thereby providing additional value to
shareholders.
WE STRONGLY URGE YOU TO VOTE FOR THE NORTH DAKOTA REINCORPOATION PROPOSAL 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 NORTH DAKOTA
REINCORPORATION PROPOSAL.
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Amylin's Proxy Statement, Amylin is soliciting proxies with
respect to three proposals other than the election of directors and the North
Dakota Reincorporation Proposal. Please refer to Amylin's Proxy Statement for a
detailed discussion of these proposals, including various arguments in favor of
and against such proposals. These proposals are outlined below. IF YOU HAVE
SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE
GIVEN A DIRECTION TO VOTE ALL OF THE SHARES REPRESENTED BY YOUR GOLD PROXY CARD
(I) FOR PROPOSAL [ ] BELOW, AND (II) AGAINST PROPOSALS [ ] BELOW.
PROPOSAL 3 -- APPROVAL OF AMYLIN'S 2009 EQUITY INCENTIVE PLAN
According to the Company's 2009 Preliminary Proxy Statement, the Company will
also solicit proxies with respect to a proposal for the stockholders to approve
the Company's 2009 Equity Incentive Plan ("EIP"). Please refer to the Company's
2009 Preliminary Proxy Statement for a discussion of such proposal. The
Participants intend to vote, and recommend that you vote, [ ] this proposal.
PROPOSAL 4 -- APPROVAL OF AMENDMENT OF THE 2001 EMPLOYEE STOCK PURCHASE PLAN
According to the Company's 2009 Preliminary Proxy Statement, the Company will
also solicit proxies with respect to a proposal for the stockholders to approve
an increase of 1,500,000 shares in the aggregate number of shares of the
Company's common stock authorized for issuance under the Company's 2001 Employee
Stock Purchase Plan (the "2001 Employee Stock Purchase Plan Proposal"). Please
refer to the Company's 2009 Preliminary Proxy Statement for a discussion of such
proposal. The Participants intend to vote, and recommend that you vote, [ ]this
proposal.
PROPOSAL 5 -- RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
According to the Company's 2009 Preliminary Proxy Statement, the Stockholders
will be asked to vote to ratify the selection of Ernst & Young LLP as Amylin's
independent registered public accounting firm for the fiscal year ending
December 31, 2009. The Participants intend to vote, and recommend that you vote,
[ ] this proposal.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be
presented at the Annual Meeting. If any other matters should properly come
before the Annual Meeting, it is intended that the persons named on the enclosed
GOLD proxy card will vote that proxy on such other matters in accordance with
their judgment.
VOTING PROCEDURES
According to Amylin's Proxy Statement, the Bylaws and applicable law,
holders of shares of Amylin'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 Amylin's Proxy Statement, the Bylaws and applicable law,
directors are elected by a plurality of the votes cast by the holders of
Amylin'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 the presence
by person or by proxy of a majority of the Shares issued and outstanding and
entitled to vote 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.
BROKER NON-VOTES
If you hold your shares through a bank, broker or other nominee and do not
provide voting instructions to the record holder of the shares, your shares will
not be voted on any proposal on which your broker or nominee does not have
discretionary authority to vote. In this case, a "broker non-vote" occurs.
Shares constituting broker non-votes are not counted or deemed to be present or
represented for the purpose of determining whether shareholders have approved a
matter, but they are counted as present for the purpose of determining a quorum
at the Annual Meeting.
For the Annual Meeting, because of the solicitation of proxies described in
this proxy statement, the election of directors at the Annual Meeting is a
"non-routine matter" and brokers do not have discretionary authority to vote
your shares on "non-routine matters." Therefore, unless you provide specific
voting instructions to your broker, your broker will not have discretionary
authority to vote your shares for the election of directors at the Annual
Meeting and your shares will not be voted for any of the nominees. If your
shares are held in street name, your broker or nominee has enclosed a voting
instruction card with this proxy statement. We strongly encourage you to vote
your shares by following the instructions provided on the voting instruction
card
According to Amylin's Proxy Statement, the Bylaws and applicable law, the
affirmative vote of a majority of Shares present in person or represented by
proxy at the Annual Meeting and entitled to vote thereon are required to (i)
approve the North Dakota Reincorporation Proposal, (ii) approval of Amylin's
2009 Equity Incentive Plan; (iii) approval of the amendment to the 2001 Employee
Stock Purchase Plan; and (iv) ratify the selection of the independent registered
accounting firm.
As explained in the detailed instructions on your GOLD proxy card, there
are four ways you may vote. You may:
1. Sign, date and return the enclosed GOLD proxy card in the enclosed
postage-paid envelope. We recommend that you vote on the GOLD proxy
card even if you plan to attend the Annual Meeting;
2. Vote via the Internet by following the voting instructions on the GOLD
proxy card or the voting instructions provided by your broker, bank or
other holder of record.
3. Vote by telephone by following the voting instructions on the GOLD
proxy card or the instructions provided by your broker, bank or other
holder of record; or
4. Vote in person by attending the Annual Meeting. Written ballots will
be distributed to 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
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
complete the enclosed GOLD proxy and return it in the enclosed self-addressed,
prepaid envelope. All valid proxies received prior to the meeting will be voted.
If you specify a choice with respect to any item by marking the appropriate box
on the proxy, the Shares will be voted in accordance with that specification. IF
NO SPECIFICATION IS MADE, THE SHARES WILL BE VOTED (I) FOR DR. ALEXANDER J.
DENNER FOR DIRECTOR; (II) FOR DR. THOMAS F. DEUEL FOR DIRECTOR; (III) FOR MR.
JULES HAIMOVITZ FOR DIRECTOR; (IV) FOR DR. PETER LIEBERT FOR DIRECTOR; (V) FOR
DR. DAVID SIDRANSKY FOR DIRECTOR; (IV) FOR THE PERSONS WHO HAVE BEEN NOMINATED
BY AMYLIN TO SERVE AS DIRECTORS, OTHER THAN [THE FOLLOWING PERSONS:]; (VI) FOR
THE NORTH DAKOTA REINCORPOATION PROPOSAL; (VI) [ ] AMYLIN'S 2009 EQUITY
INCENTIVE PLAN; (VII) [ ] THE AMENDMENT TO THE 2001 EMPLOYEE STOCK PURCHASE
PLAN; (VIII) [ ] THE RATIFICATION OF THE SELECTION OF THE INDEPENDENT REGISTERED
ACCOUNTING FIRM; AND (IX) 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) 488-8075
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 Amylin;
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 Amylin.
Although a revocation is effective if delivered to Amylin, 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 AMYLIN, 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 Dr. Denner and Messrs. Icahn,
Sris, Meckler and Ende.
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
$150,000, plus reimbursement for its reasonable out-of-pocket expenses. The
Icahn Parties have agreed to indemnify D.F. King against certain liabilities and
expenses, including certain liabilities under the federal securities laws.
Insofar as indemnification for liabilities arising under the federal securities
laws may be permitted to D.F. King pursuant to the foregoing provisions, we have
been informed, that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy and is therefore unenforceable.
Proxies may be solicited by mail, courier services, Internet, advertising,
telephone or telecopier or in person. It is anticipated that D.F. King will
employ up to [75] persons to solicit proxies from Amylin Stockholders for the
Annual Meeting. The total expenditures in furtherance of, or in connection with,
the solicitation of proxies is approximately [$] to date, and is estimated to be
[$] in total.
The Icahn Parties do not intend to seek reimbursement for the costs and
expenses associated with the proxy solicitation in the event that any of the
Nominees are elected to the Board of Directors of Amylin.
CERTAIN LITIGATION
The Company has issued $575 million of notes (the "Notes"), the indenture
for which (the "Indenture") provides the holders of the Notes the right to
require the Company to repurchase the Notes at a price equal to 100% of the
principal amount thereof, together with accrued and unpaid interest thereon,
within 35 days after the date upon which "continuing directors" do not
constitute a majority of the Company's Board of Directors. Under the Indenture,
"continuing directors" are individuals who constituted the Board of Directors on
the issue date of the Notes, or any new directors whose election to the Board or
nomination for election was approved by at least a majority of the directors
still in office.
The Company is also party to a Credit Agreement with certain banks dated as
of December 21, 2007 pursuant to which the Company has borrowed $125 million.
Under the Credit Agreement, borrowed funds become repayable upon a "change of
control," which is defined to occur when persons who were members of the Board
at the start of any 24 month period no longer constitute a majority of the
Board, unless the nomination of the new directors was approved by the prior
members of the board, other than as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of directors.
On March 24, 2009, San Antonio Fire & Police Pension Fund, a purported
stockholder of the Company, filed a class action lawsuit in the Delaware Court
of Chancery against the Company and its directors seeking to disable the debt
acceleration provisions in the Notes and the Credit Agreement. On April 6, 2009,
San Antonio Fire & Police Pension Fund filed a Third Amended Complaint against
the Company, its directors and Bank of America, N.A. (the lead bank on the
Credit Agreement), alleging that the directors of the Company violated their
fiduciary duties by adopting the acceleration provisions in the 2007 Notes and
in the Credit Agreement and by failing to approve the Icahn and Eastbourne
nominees pursuant to the 2007 Indenture, that the acceleration provisions in the
Credit Agreement are unlawful and invalid, and that the Company's disclosures
concerning the acceleration provisions are coercive and misleading. The Icahn
Parties have moved to intervene as individual plaintiffs in the lawsuit. The
court has ordered expedited proceedings in the lawsuit, and has scheduled a
trial for May 4 and 5, 2009.
ADDITIONAL INFORMATION
Certain information regarding the securities of Amylin held by Amylin's
directors, management and 5% Stockholders is contained in Amylin'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
Amylin must be received by Amylin for inclusion in Amylin's Proxy Statement and
form of proxy for that meeting is also contained in Amylin's Proxy Statement.
This information is expected to be contained in Amylin's public filings. The
Participants take no responsibility for the accuracy or completeness of such
information contained in Amylin's public filings.
Date:
CARL C. ICAHN
DR. ALEXANDER J. DENNER
DR. THOMAS F. DEUEL
MR. JULES HAIMOVITZ
DR. PETER LIEBERT
DR. DAVID SIDRANSKY
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
ANNEX A
BENEFICIAL OWNERSHIP OF SECURITIES OF AMYLIN
Beneficial Ownership by the Icahn Parties of Securities of Amylin as of the
close of business on April 6, 2009:
(1) Title of (2) Name of (3) Amount and (4) Percent of
Class Beneficial Nature of Class (2)
Owner (1) Beneficial
Ownership
Common Stock, par Icahn Partners 4,533,433 3.22%
value $0.001
per share
Common Stock, par Icahn Master 5,592,721 3.97%
value $0.001
per share
Common Stock, par Icahn Master II 2,057,967 1.46%
value $0.001
per share
Common Stock, par Icahn Master III 787,207 0.56%
value $0.001
per share
____________________
(1) 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."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the amount of Shares stated to be outstanding as March
16, 2009 by the Company in the Company's Preliminary Proxy Statement.
INFORMATION ABOUT MR. ICAHN
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.
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 Icahn Parties.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is
White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and
(ii) 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 Icahn Parties and Carl C. Icahn may be deemed to beneficially own, in
the aggregate, 12,971,328 shares, representing approximately 9.21% of the
Corporation's outstanding Shares (based upon the 140,840,515 Shares stated to be
outstanding as of March 16, 2009 by the Company in the Company's Preliminary
Proxy Statement).
Icahn Partners has sole voting power and sole dispositive power with regard
to 4,533,433 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 5,592,721 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 2,057,967 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 787,207 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 4,533,433 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 8,437,895 Shares which
Icahn Master, Icahn Master II and Icahn Master III directly beneficially own.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of any call options, by Mr. Icahn and his affiliates and
Dr. Peter Liebert 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(3)
Icahn Partners LP 9/11/2008 358,423(4)
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 LP 1/30/2009 273,846
Icahn Partners LP 2/2/2009 36,418
____________________
(3) Icahn Partners acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(4) The Icahn Partners acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
SHARES PURCHASED/
(SOLD) AND CALL
NAME DATE OPTIONS EXERCISED
- ---- ---- --------------------
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(5)
Icahn Partners Master Fund LP 9/11/2008 431,466(6)
Icahn Partners Master Fund LP 9/11/2008 244,502(7)
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 LP 1/30/2009 339,204
Icahn Partners Master Fund LP 2/2/2009 22,447
____________________
(5) The Icahn Master acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(6) Icahn Master acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(7) Icahn Master acquired these Shares upon exercise of call options as
described on Attachment I-C to this Annex A.
SHARES PURCHASED/
(SOLD) AND CALL
NAME DATE OPTIONS EXERCISED
- ---- ---- --------------------
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(8)
Icahn Partners Master Fund II L.P. 9/11/2008 152,160(9)
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 II L.P. 1/30/2009 125,320
____________________
(8) Icahn Master II acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(9) Icahn Master II acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
SHARES PURCHASED/
(SOLD) AND CALL
NAME DATE OPTIONS EXERCISED
- ---- ---- --------------------
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(10)
Icahn Partners Master Fund III L.P. 9/11/2008 57,951(11)
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
Icahn Partners Master Fund III L.P. 1/30/2009 47,936
Dr. Peter Liebert 2/9/2009 1,000
Dr. Peter Liebert 2/10/2009 1,000
____________________
(10) Icahn Master III acquired these Shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(11) Icahn Master III acquired these Shares upon exercise of call options as
described on Attachment I-B to this Annex A.
Shares purchased by each of the Icahn Parties are maintained in margin accounts
that include positions in securities in addition to the Shares. As of [ ], the
indebtedness of the margin account of each of Icahn Partners, Icahn Master,
Icahn Master II and Icahn Master III was approximately $, $, $, and $,
respectively.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Icahn Parties, 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 Icahn Parties 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 Fund LP 5/12/2008 112,467 774,830.15
Icahn Partners Master Fund LP 5/12/2008 24,534 167,763.49
Icahn Partners Master Fund LP 5/13/2008 266,738 1,778,822.37
Icahn Partners Master Fund LP 5/14/2008 209,729 1,489,327.57
Icahn Partners Master Fund LP 5/15/2008 246,446 1,940,910.12
Icahn Partners Master Fund LP 5/21/2008 124,712 1,037,828.32
Icahn Partners Master Fund LP 5/22/2008 42,907 359,775.20
Icahn Partners Master Fund II L.P. 5/12/2008 8,769 59,962.42
Icahn Partners Master Fund III, L.P. 5/12/2008 2,796 19,119.05
ANNEX A
ATTACHMENT 1-B
The following are American call options purchased by the Icahn Parties, 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 Icahn Parties 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 Fund LP 9/2/2008 366,932 2,739,037.30
Icahn Partners Master Fund LP 9/3/2008 64,534 479,042.34
Icahn Partners Master Fund II L.P. 9/2/2008 131,081 978,480.34
Icahn Partners Master Fund II L.P. 9/3/2008 21,079 156,471.52
Icahn Partners Master Fund III L.P. 9/2/2008 49,939 372,779.65
Icahn Partners Master Fund III L.P. 9/3/2008 8,012 59,473.88
ANNEX A
ATTACHMENT 1-C
The following are American call options purchased by the Icahn Parties, 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 Icahn Parties
exercised all of the call options described in the chart below.
NUMBER OF
SHARES SUBJECT
NAME DATE TO OPTION PREMIUM
- ---- ---- --------- -------
Icahn Partners Master Fund LP 3/10/2008 138,688 1,164,798.91
Icahn Partners Master Fund LP 3/11/2008 64,382 517,792.23
Icahn Partners Master Fund LP 3/13/2008 41,432 359,563.47
ANNEX A
ATTACHMENT 1-D
The following are European put options bought by the Icahn Parties, which were
written by Merrill Lynch International and have a $22.50 strike price and an
expiration date of March 10, 2010, and provide for cash settlement only and are
further described in the chart set forth below. On September 11, 2008, the Icahn
Parties exercised all of the call options described in Annex A Attachment 1-A,
and upon exercise of the call options, all of the put options described below
expired pursuant to their terms.
OPTION
NAME DATE QUANTITY PREMIUM ($)
- ---- ---- -------- -----------
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 Fund LP 5/12/2008 112,467 1,124.67
Icahn Partners Master Fund LP 5/12/2008 24,534 245.34
Icahn Partners Master Fund LP 5/13/2008 266,738 2,667.38
Icahn Partners Master Fund LP 5/14/2008 209,729 2,097.29
Icahn Partners Master Fund LP 5/15/2008 246,446 2,464.46
Icahn Partners Master Fund LP 5/21/2008 124,712 1,247.12
Icahn Partners Master Fund LP 5/22/2008 42,907 429.07
Icahn Partners Master Fund II L.P. 5/12/2008 8,769 87.69
Icahn Partners Master Fund III, L.P. 5/12/2008 2,796 27.96
ANNEX A
ATTACHMENT 1-E
The following are European put options bought by the Icahn Parties, which were
written by Merrill Lynch International and have a $14.25 strike price and an
expiration date of September 7, 2010 and provide for cash settlement only and
are further described in the chart set forth below. On September 11, 2008, the
Icahn Parties exercised all of the call options described in Annex A Attachments
1-B, and upon exercise of the call options, all of the put options described
below expired pursuant to their terms.
OPTION
NAME DATE QUANTITY PREMIUM ($)
- ---- ---- -------- -----------
Icahn Partners LP 9/2/2008 302,048 3,020.48
Icahn Partners LP 9/3/2008 56,375 563.75
Icahn Partners Master Fund LP 9/2/2008 366,932 3,669.32
Icahn Partners Master Fund LP 9/3/2008 64,534 645.34
Icahn Partners Master Fund II L.P. 9/2/2008 131,081 1,310.81
Icahn Partners Master Fund II L.P. 9/3/2008 21,079 210.79
Icahn Partners Master Fund III, L.P. 9/2/2008 49,939 499.39
Icahn Partners Master Fund III, L.P. 9/3/2008 8,012 80.12
ANNEX A
ATTACHMENT 1-F
The following are European put options bought by the Icahn Parties, which were
written by UBS AG and have a $16.15 strike price and an expiration date of March
10, 2010 and provide for cash settlement only and are further described in the
chart set forth below. On September 11, 2008, the Icahn Parties exercised all of
the call options described in Annex A Attachments 1-C, and upon exercise of the
call options, all of the put options described below expired pursuant to their
terms.
OPTION
NAME DATE QUANTITY PREMIUM ($)
- ---- ---- -------- -----------
Icahn Partners Master Fund LP 3/10/2008 138,688 1,386.88
Icahn Partners Master Fund LP 3/11/2008 64,382 643.82
Icahn Partners Master Fund LP 3/13/2008 41,432 414.32
ANNEX B
[FORM OF NOMINEE AGREEMENT]
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:
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Name:
IMPORTANT
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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 Amylin 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 Amylin. You may also submit your later-dated proxy by using the
enclosed GOLD proxy card to vote by telephone or by Internet. ONLY YOUR LATEST
DATED PROXY FOR THE ANNUAL MEETING WILL COUNT AT THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
STOCKHOLDERS CALL TOLL-FREE: (800) 488-8075
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550