SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. 1)
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
DR. PETER LIEBERT
MAYU SRIS
JEFFREY MECKLER
DR. 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
DR. PETER LIEBERT
MAYU SRIS
JEFFREY MECKLER
DR. 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," "Corporation" or "Company") in connection with the solicitation of
proxies by Carl C. Icahn and the Participants (as hereinafter defined), to be
used at the 2009 Annual Meeting (the "Annual Meeting") of Stockholders of Amylin
which is scheduled to be held at 8:30 a.m., local time, on May 27, 2009, at 4575
Eastgate Mall, San Diego, CA 92121, 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 ("Board") of Amylin the following persons
(each a "Nominee" and collectively, the "Nominees"):
Dr. Alexander J. Denner
Dr. Thomas F. Deuel
Dr. Peter Liebert
Each of our Nominees has consented to being named in this Proxy Statement
and, if elected, to serve as a director.
Under the proxy rules 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. However, we sought and obtained from the staff ("Staff") of the Securities
and Exchange Commission's ("Commission") Division of Corporation Finance a
no-action letter dated March 30, 2009, which states that the Staff will not
recommend that the Commission take any enforcement action should we provide a
proxy card which seeks authority from Stockholders to vote for: (i) our
Nominees; (ii) Eastbourne's nominees other than those nominees we specify on our
GOLD proxy card; and (iii) Amylin's nominees other than those nominees we
specify on our GOLD proxy card and, in each case, other than those nominees as
to which the Stockholder specifically withholds our authority to vote for. The
no-action letter is not binding on the Commission and contains certain
conditions we believe we will meet. Therefore, although we indicated that we
were going to nominate five persons as directors at the annual meeting, we have
determined to nominate a slate of three such persons, Dr. Denner, Dr. Deuel and
Dr. Liebert and are seeking authority to vote for all of the Eastbourne Capital
Management, L.L.C. ("Eastbourne") nominees other than Marina S. Bozilenko,
Charles M. Fleischman and William A. Nuerge and all of Amylin's nominees other
than Joseph C. Cook, Jr., James R. Gavin III, Jay S. Skyler, Joseph P. Sullivan
and James N. Wilson. As a result, should a Stockholder so authorize us, on the
GOLD proxy card, we would cast votes for our three Nominees, two Eastbourne
nominees and seven Amylin nominees. None of such Eastbourne nominees or Amylin
nominees for whom we seek authority to vote have agreed to serve with any of our
Nominees, if elected. Additionally, if Eastbourne or Amylin do not nominate the
respective individuals for which we seek authority to vote, our GOLD proxy card
will not allow such Stockholder to utilize the GOLD proxy card to vote for such
individual. If such event occurs we reserve our right to amend our proxy
materials to allow for the vote for a full complement of twelve directors.
At the Annual Meeting, the Icahn Parties (as hereinafter defined) will also
introduce a resolution to ask 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.
Section 5(a)(iii) of the Company's Fourth Amended and Restated By-Laws
provides that business may be brought before an annual meeting by a stockholder
who was a stockholder of record at the time the stockholder gave advance notice
of its intention to bring the business before the meeting. The Icahn Parties (as
hereinafter defined) gave such notice on January 30, 2009, with respect to the
North Dakota Reincorporation Proposal ("Reincorporation Proposal").
The North Dakota Reincorporation Proposal requires for adoption the
affirmative vote of the holders of a majority of the Common Stock present and
voting on the Proposal. However, if adopted the Proposal is not binding upon
Amylin's Board. Nonetheless, the Board will know that the Stockholders support
the concept of the North Dakota Reincorporation Proposal and would urge the
Board to take such action.
THE PARTICIPANTS URGE YOU TO VOTE THE GOLD PROXY CARD FOR DR. ALEXANDER J.
DENNER, DR. THOMAS F. DEUEL AND DR. PETER LIEBERT 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 "Common Stock") or other securities
(if any) of Amylin as disclosed herein, and, in the case of Dr. Ende and Mr.
Meckler pursuant to their Consulting Agreements, as described herein, and in the
case of Dr. Thomas F. Deuel and Dr. Peter Liebert, pursuant to an agreement in
which certain affiliates of Carl C. Icahn have agreed to pay each of Dr. Thomas
F. Deuel and Dr. Peter Liebert $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 AND DR. PETER LIEBERT 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, AND DR. PETER LIEBERT 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 OR EASTBOURNE.
IF YOU HAVE ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A
LATER-DATED GOLD PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, EXECUTING
A VOTE VIA INTERNET OR TELEPHONE, OR BY VOTING IN PERSON AT THE ANNUAL MEETING.
SEE "VOTING PROCEDURES" AND "PROXY PROCEDURES" BELOW.
If you attend the annual meeting and you beneficially own shares of Common
Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT be sufficient to cancel your prior given proxy card. You must have
written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in
this proxy statement for assistance or if you have any questions.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
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 April 8, 2009 (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 140,874,975 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 12,973,328 shares of Common Stock, representing
approximately 9.21% of the outstanding shares of Common Stock. The Participants
and their affiliates intend to vote such shares of Common Stock FOR the election
of the Nominees 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 and Dr. Peter Liebert), the participants in the solicitation of proxies
(the "Participants") from Stockholders of Amylin include the following: Mr. Carl
C. Icahn, Mr. Mayu Sris, Mr. Jeffrey Meckler, Dr. 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, Sris and Meckler and
Drs. Denner and Ende 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.
Dr. Liebert's, business address is 222 Westchester Avenue, Suite 403, White
Plains, New York 10604.
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. Drs. Denner and
Ende and Messrs. Sris, 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. Dr. Ende and
Mr. 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 and
Dr. Peter Liebert as members of the board of directors of Amylin.(1) 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.
_________________________
(1) The notification letter also indicated that we intended to nominate Mr.
Jules Haimovitz and Dr. Dr. David Sidransky but we have determined, at this
time, not to nominate them. We reserve the right to change this and, if so,
we shall file amended proxy materials.
According to Amylin's Proxy Statement, the Board of Amylin 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 and Dr. Peter Liebert, and to enable Stockholders to vote for
the Amylin nominees other than Joseph C. Cook, Jr., James R. Gavin III, Jay S.
Skyler, Joseph P. Sullivan and James N. Wilson and the Eastbourne nominees other
than Marina S. Bozilenko, Charles M. Fleischman and William A. Nuerge.
Therefore, should a Stockholder so authorize us, we will cast votes for our
three Nominees, two Eastbourne nominees and seven Amylin nominees. None of such
Eastbourne nominees or Amylin nominees for whom we seek authority to vote have
agreed to serve with each other or to serve with any of our Nominees, if
elected.
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, 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. 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 Definitive Proxy Statement and other
public filings for more information concerning these provisions.
On March 24, 2009, San Antonio Fire & Police Pension Fund ("San Antonio"),
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 debt acceleration provisions that would be triggered in the event of
certain changes in the composition of Amylin's Board in the Company's 2007 Notes
and the 2007 Credit Agreement. On April 6, 2009, San Antonio filed a Third
Amended Complaint against the Company, its directors and Bank of America, N.A.
(the lead bank on the 2007 Credit Agreement), alleging that the directors of the
Company violated their fiduciary duties by adopting such acceleration provisions
in the 2007 Notes and in the 2007 Credit Agreement and by failing to approve the
nominees of the Icahn Parties and Eastbourne pursuant to the 2007 Indenture (so
that if the current directors constitute, after the 2009 annual meeting, less
than a majority of the Board, a default in the 2007 Notes would not thereby
occur), that such acceleration provisions in the 2007 Credit Agreement are
unlawful and invalid, and that the Company's disclosures concerning the
acceleration provisions are coercive and misleading. The Icahn Parties moved to
intervene as individual plaintiffs in the lawsuit.
According to the Form 8K filed by the Company on April 15, 2007, as part of
a settlement agreement between the Company and San Antonio, the Board has
determined, subject only to the entry of a final, non-appealable order prior to
May 27, 2009 declaring that the Board possesses the contractual right to do so,
that the Board will "approve" our Nominees and the Eastbourne nominees for the
purpose of the 2007 Notes.
On April 16, 2009, San Antonio filed a Fourth Amended Class Action
Complaint For Declaratory Relief adding Bank of New York Trust Company (Trustee
under the 2007 Indenture) as a Defendant and seeking, among other things,
declarations that (i) the directors of the Company breached their duty of care
in approving the acceleration provisions in the 2007 Notes and in the 2007
Credit Agreement (ii) the Board possesses the sole right and power under the
terms of the 2007 Indenture to approve any nominations proposed by the Icahn
Parties or Eastbourne in order to nullify "continuing director" repurchase
obligations in the 2007 Notes, or in the alternative, that those provisions are
invalid and (ii) the change of control repurchase provision in the 2007 Credit
Agreement is invalid and unenforceable.
Trial remains scheduled for May 4 and 5, 2009.
As of the date of this filing, it is not clear what the full Eastbourne
slate of nominees will be. Therefore, it is possible the results of the voting
by Stockholders could be that at least six persons who are elected will not be
current directors, and that the court in the Delaware action will not have ruled
such that either the terms of the 2007 Notes or of the 2007 Credit Agreement
will cause there to be an acceleration of the debt instruments covered thereby.
On the other hand if the Eastbourne slate consists of the two Eastbourne
nominees for whom we seek the authority to vote and if it seeks the authority to
vote for our nominees, then it will not be possible for there to be elected
enough persons who are not currently directors (assuming the Company nominates a
slate of twelve directors) so that the applicable terms of the debt instruments
will not be violated and the debt will not thereby be accelerated.
Dr. Alexander J. Denner, Dr. Thomas F. Deuel and Dr. Peter Liebert are each
party to a Nominee Agreement, substantially in the form attached hereto as Annex
B, pursuant to which the Icahn Parties have agreed to pay certain fees to each
such Nominee (other than Dr. Denner) and to indemnify each such Nominee with
respect to certain costs incurred by each such Nominee in connection with the
proxy contest relating to the Annual Meeting. Except as disclosed in this Proxy
Statement, including the Annexes attached hereto and as provided in the Nominee
Agreement (which, among other things, provides for a payment to each of Dr.
Thomas F. Deuel and Dr. Peter Liebert 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 and Dr. Peter
Liebert 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 of Common Stock.
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 holds an M.D. from
Columbia University and an A.B. from Princeton University.
DR. PETER LIEBERT
Dr. Liebert, 73, 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, 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 a member of the editorial board of the Journal of Medicinal Food
focusing on prevention of adolescent and young adult obesity and diabetes. 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.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF DR. ALEXANDER J. DENNER,
DR. THOMAS F. DEUEL AND DR. PETER LIEBERT BY MARKING, SIGNING, DATING AND
RETURNING THE ENCLOSED GOLD PROXY CARD IN THE POSTAGE PAID ENVELOPE PROVIDED TO
YOU WITH THIS PROXY STATEMENT OR BY USING THE GOLD PROXY CARD TO VOTE BY
TELEPHONE OR INTERNET. IF YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS
MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES OF
COMMON STOCK REPRESENTED BY THE GOLD PROXY CARD FOR THE ELECTION OF DR.
ALEXANDER J. DENNER, DR. THOMAS F. DEUEL AND DR. PETER LIEBERT AND THE
EASTBOURNE NOMINEES OTHER THAN MARINA S. BOZILENKO, CHARLES M. FLEISCHMAN AND
WILLIAM A. NUERGE AND THE AMYLIN NOMINEES OTHER THAN JOSEPH C. COOK, JR., JAMES
R. GAVIN III, JAY S. SKYLER, JOSEPH P. SULLIVAN AND JAMES N. WILSON.
PROPOSAL 5 -- 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 Publicly Traded Corporations
Act is the most stockholder-friendly corporation law in the United States as it
relates to public companies and that being incorporated there and subject to the
North Dakota Act would give Stockholders considerably more protection against
management entrenchment and would make it easier for third parties to
successfully bid for the Company. Although there can be no assurances, this
could enable Stockholders, in some cases, to achieve a premium over market for
their shares of Common Stock.
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 as opposed to the General Corporation Law of Delaware:
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, as further described above under "Principal Reasons for
Reincorporation." 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.
THE ICAHN PARTIES 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 OF COMMON STOCK 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 other proposals. 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 OF COMMON STOCK REPRESENTED BY YOUR
GOLD PROXY CARD (I) FOR PROPOSALS 2, 3 and 4 LISTED BELOW.
PROPOSAL 2 -- APPROVAL OF AMYLIN'S 2009 EQUITY INCENTIVE PLAN
According to the Company's 2009 Definitive 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 Definitive Proxy Statement for a discussion of such proposal. The
Participants intend to vote, and recommend that you vote, FOR this proposal.
PROPOSAL 3 -- APPROVAL OF AMENDMENT OF THE 2001 EMPLOYEE STOCK PURCHASE PLAN
According to the Company's 2009 Definitive 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 Definitive Proxy Statement for a discussion of such
proposal. The Participants intend to vote, and recommend that you vote, FOR this
proposal.
PROPOSAL 4 -- RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
According to the Company's 2009 Definitive 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,
FOR 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 of Common Stock not voted (whether by abstention,
broker non-vote or otherwise) have no impact in the election of directors. A
quorum is the presence by person or by proxy of a majority of the shares of
Common Stock issued and outstanding and entitled to vote at the Annual Meeting.
The shares of Common Stock represented by a proxy marked "withhold" or "abstain"
will be considered present at the Annual Meeting for purposes of determining a
quorum.
BROKER NON-VOTES
If you hold your shares of Common Stock through a bank, broker or other
nominee and do not provide voting instructions to the record holder of the
shares of Common Stock, your shares of Common Stock will not be voted on any
proposal on which your broker or nominee does not have discretionary authority
to vote. In this case, a "broker non-vote" occurs. Shares of Common Stock
constituting broker non-votes are not counted or deemed to be present or
represented for the purpose of determining whether shareholders have approved a
matter, but they are counted as present for the purpose of determining a quorum
at the Annual Meeting.
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 of Common Stock on "non-routine matters." Therefore, unless you
provide specific voting instructions to your broker, your broker will not have
discretionary authority to vote your shares of Common Stock for the election of
directors at the Annual Meeting and your shares of Common Stock will not be
voted for any of the nominees. If your shares of Common Stock are held in street
name, your broker or nominee has enclosed a voting instruction card with this
proxy statement. We strongly encourage you to vote your shares of Common Stock
by following the instructions provided on the voting instruction card
According to Amylin's Proxy Statement, the Bylaws and applicable law, the
affirmative vote of a majority of shares of Common Stock present in person or
represented by proxy at the Annual Meeting and entitled to vote thereon 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 of Common Stock through a
bank, broker or other custodian, you must obtain a legal proxy from
such custodian in order to vote in person at the meeting.
To submit a proxy with voting instructions by telephone please call the
telephone number listed on the GOLD proxy card. Proxies may also be submitted
over the Internet. Please refer to the GOLD proxy card for the website
information. In each case 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 of Common Stock will be voted in accordance with that
specification. IF NO SPECIFICATION IS MADE, THE SHARES OF COMMON STOCK WILL BE
VOTED (I) FOR DR. ALEXANDER J. DENNER FOR DIRECTOR; (II) FOR DR. THOMAS F. DEUEL
FOR DIRECTOR; (III) FOR DR. PETER LIEBERT FOR DIRECTOR; (IV) FOR THE PERSONS WHO
HAVE BEEN NOMINATED BY EASTBOURNE TO SERVE AS DIRECTORS, OTHER THAN MARINA S.
BOZILENKO, CHARLES M. FLEISCHMAN AND WILLIAM A. NUERGE; (V) FOR THE PERSONS WHO
HAVE BEEN NOMINATED BY AMYLIN TO SERVE AS DIRECTORS, OTHER THAN JOSEPH C. COOK,
JR., JAMES R. GAVIN III, JAY S. SKYLER, JOSEPH P. SULLIVAN AND JAMES N. WILSON;
(VI) FOR THE NORTH DAKOTA REINCORPOATION PROPOSAL; (VII) FOR AMYLIN'S 2009
EQUITY INCENTIVE PLAN; (VIII) FOR THE AMENDMENT TO THE 2001 EMPLOYEE STOCK
PURCHASE PLAN; (IX) FOR THE RATIFICATION OF THE SELECTION OF THE INDEPENDENT
REGISTERED ACCOUNTING FIRM; AND (X) 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 of Common Stock after the Record Date. Accordingly, it is important that
you vote the shares of Common Stock held by you on the Record Date, or grant a
proxy to vote such shares of Common Stock on the GOLD proxy card, even if you
sell such shares of Common Stock after the Record Date.
IF YOUR SHARES OF COMMON STOCK ARE HELD IN THE NAME OF A BROKERAGE FIRM,
BANK, BANK NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE
SUCH SHARES OF COMMON STOCK AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS.
ACCORDINGLY, PLEASE CONTACT THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT
THAT PERSON TO EXECUTE ON YOUR BEHALF THE GOLD PROXY CARD AS SOON AS POSSIBLE.
REVOCATION OF PROXIES
Any Stockholder 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 Blue or 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 of Common Stock 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 OR BLUE 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 OF COMMON STOCK VOTED WITH RESPECT TO THE GOLD PROXY
CARD, (3) ATTENDING THE ANNUAL MEETING AND VOTING IN PERSON OR (4) DELIVERING A
WRITTEN NOTICE OF REVOCATION TO THE ICAHN PARTIES OR TO THE CORPORATE SECRETARY
OF THE COMPANY.
COST AND METHOD OF SOLICITATION
Solicitation of proxies shall be made by Drs. Denner and Ende and Messrs.
Icahn, Sris and Meckler.
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 "2007 Notes"), the
indenture for which (the "Indenture") provides the holders of the 2007 Notes the
right to require the Company to repurchase the 2007 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. Under the Indenture, "continuing
directors" are individuals who constituted the Board of Directors on the issue
date of the 2007 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 2007 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 ("San Antonio"),
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 debt acceleration provisions that would be triggered in the event of
certain changes in the composition of the Company's Board in the Company's 2007
Notes and the 2007 Credit Agreement. On April 6, 2009, San Antonio 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 2007 Credit Agreement and by failing to approve the
nominees of the Icahn Parties and Eastbourne pursuant to the 2007 Indenture,
that the acceleration provisions in the 2007 Credit Agreement are unlawful and
invalid, and that the Company's disclosures concerning the acceleration
provisions are coercive and misleading. The Icahn Parties moved to intervene as
individual plaintiffs in the lawsuit. The court ordered expedited proceedings in
the lawsuit, and scheduled a trial for May 4 and 5, 2009.
According to the Form 8-K filed by the Company on April 15, 2007, the
Company and San Antonio agreed to a partial settlement of the action by which,
among other things, the Board determined, subject only to the entry of a final,
non-appealable order prior to May 27, 2009 declaring that the Board possesses
the contractual right to do so, that the Board will "approve" our Nominees and
the Eastbourne nominees for the purpose of the 2007 Notes.
On April 16, 2009, San Antonio filed a Fourth Amended Class Action
Complaint For Declaratory Relief adding Bank of New York Trust Company (Trustee
under the 2007 Indenture) as a Defendant and seeking, among other things,
declarations that (i) the directors of the Company breached their duty of care
in approving the acceleration provisions in the 2007 Notes and in the 2007
Credit Agreement (ii) the Board possesses the sole right and power under the
terms of the 2007 Indenture to approve any nominations proposed by the Icahn
Parties or Eastbourne in order to nullify "continuing director" repurchase
obligations in the 2007 Notes, or in the alternative, that those provisions are
invalid and (ii) the change of control repurchase provision in the 2007 Credit
Agreement is invalid and unenforceable.
Trial remains scheduled 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
DR. PETER LIEBERT
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 22, 2009:
(1) Title (2) Name of Beneficial (3) Amount and (4) Percent of
of Beneficial Nature of Class (3)
Class Owner (2) Beneficial
Ownership
Common Stock, Icahn Partners 4,533,433 3.22%
par value $0.001
per share
Common Stock, Icahn Master 5,592,721 3.97%
par value $0.001
per share
Common Stock, Icahn Master II 2,057,967 1.46%
par value $0.001
per share
Common Stock, Icahn Master III 787,207 0.56%
par value $0.001
per share
_________________________
(2) Please note that each record holder listed in this table is, as of the date
of this filling, 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 of Common Stock stated to be
outstanding as April 8, 2009 by the Company in the Company's Definitive
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 are deemed to beneficially own, in the
aggregate, 12,971,328 shares of Common Stock, representing approximately 9.21%
of the Corporation's outstanding shares of Common Stock (based upon the
140,874,975 shares stated to be outstanding as of April 8, 2009 by the Company
in the Company's Definitive Proxy Statement).
Icahn Partners has sole voting power and sole dispositive power with regard
to 4,533,433 shares of Common Stock. 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 of
Common Stock. 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 of Common
Stock. 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 of Common Stock.
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, are deemed to indirectly beneficially own the 4,533,433 shares of
Common Stock 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, is deemed to indirectly beneficially own the 8,437,895 shares
of Common Stock 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 of
Common Stock, 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(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 LP 1/30/2009 273,846
Icahn Partners LP 2/2/2009 36,418
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 LP 1/30/2009 339,204
Icahn Partners Master Fund LP 2/2/2009 22,447
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 II L.P. 1/30/2009 125,320
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
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
_________________________
(4) Icahn Partners acquired these shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(5) The Icahn Partners acquired these shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(6) The Icahn Master acquired these shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(7) Icahn Master acquired these shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(8) Icahn Master acquired these shares upon exercise of call options as
described on Attachment I-C to this Annex A.
(9) Icahn Master II acquired these shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(10) Icahn Master II acquired these shares upon exercise of call options as
described on Attachment I-B to this Annex A.
(11) Icahn Master III acquired these shares upon exercise of call options as
described on Attachment I-A to this Annex A.
(12) Icahn Master III acquired these shares upon exercise of call options as
described on Attachment I-B to this Annex A.
Shares of Common Stock purchased by each of the Icahn Parties are maintained in
margin accounts that include positions in securities in addition to the shares.
As of [ ], 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 TO
NAME DATE 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 TO
NAME DATE 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 TO
NAME DATE 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:
- --------------------------
Name:
IMPORTANT
1. If your shares of Common Stock are held in your own name, please mark,
date and mail the enclosed GOLD proxy card to our Proxy Solicitor, D.F. King &
Co., Inc., in the postage-paid envelope provided.
2. If your shares of Common Stock are held in the name of a brokerage firm,
bank nominee or other institution, only it can vote such shares of Common Stock
and only upon receipt of your specific instructions. Accordingly, you should
contact the person responsible for your account and give instructions for a GOLD
proxy card to be signed representing your shares of Common Stock.
3. If you have already submitted a white or blue 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
PROXY CARD [PRELIMINARY COPY]
AMYLIN PHARMACEUTICALS, INC.
ANNUAL MEETING OF STOCKHOLDERS
[ ], 2009
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY:
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
VOTE BY INTERNET VOTE BY TELEPHONE VOTE BY MAIL
[ ] [ ]
Have this form available Call toll-free on a touch- Mark, date and sign
when you visit the secure tone phone, 24 hours a day, this voting direction
voting site and follow the seven days a week. Have form and mail promptly
simple instructions. You this form available when in the postage-paid
may elect to receive an you call and follow the envelope. Do not
e-mail confirmation of simple instructions. return the card if you
your vote. vote by telephone or
by Internet.
YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL, MUST BE RECEIVED NO LATER
THAN [ ]PM, EASTERN TIME, ON [ ], TO BE INCLUDED IN THE VOTING RESULTS.
The undersigned hereby appoints and constitutes each of Alexander J. Denner and
Mayu Sris (acting alone or together) as proxies, with full power of substitution
in each, to represent the undersigned at the Annual Meeting of Stockholders of
Amylin Pharmaceuticals, Inc. ("Amylin") to be held on May 27, 2009 at 4575
Eastgate Mall, San Diego, CA 92121 at 8:30 a.m. local time, and at any
adjournment or postponement or continuations thereof (the "Annual Meeting"),
hereby revoking any proxies previously given, to vote all shares of Common Stock
of Amylin held or owned by the undersigned as directed below, and in their
discretion upon such other matters as may come before the meeting (provided,
however, that the persons named above will be permitted to use such
discretionary authority only for matters which they do not know, a reasonable
time before the solicitation, are to be presented at the meeting).
IF NO DIRECTION IS MADE, THE PERSONS NAMED IN THIS GOLD PROXY CARD WILL
VOTE YOUR SHARES: FOR DR. ALEXANDER J. DENNER, DR. THOMAS F. DEUEL AND DR.
PETER LIEBERT FOR DIRECTOR; FOR THE PERSONS WHO HAVE BEEN NOMINATED BY
EASTBOURNE CAPITAL MANAGEMENT L.L.C. ("EASTBOURNE") TO SERVE AS DIRECTORS,
OTHER THAN MARINA S. BOZILENKO, CHARLES M. FLEISCHMAN AND WILLIAM A.
NUERGE; (V) FOR THE PERSONS WHO HAVE BEEN NOMINATED BY AMYLIN TO SERVE AS
DIRECTORS, OTHER THAN JOSEPH C. COOK, JR., JAMES R. GAVIN III, JAY S.
SKYLER, JOSEPH P. SULLIVAN AND JAMES N. WILSON; AND (V) FOR PROPOSALS 2, 3,
4 AND 5.
SIGN, DATE AND MAIL YOUR PROXY TODAY
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
ICAHN PARTNERS, ICAHN MASTER, ICAHN MASTER II, AND ICAHN MASTER III EACH
RECOMMEND A VOTE "FOR" THE ELECTION OF THE NOMINEES LISTED IN PROPOSAL 1 BELOW
AND "FOR" PROPOSALS 2, 3, 4 AND 5.
[PRELIMINARY COPY]
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
STOCKHOLDERS ARE URGED TO DATE, MARK, SIGN, AND RETURN THIS PROXY.
YOUR VOTE IS VERY IMPORTANT TO US.
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) Dr. Alexander J. Denner FOR ALL WITHHELD FOR ALL
(02) Dr. Thomas F. Deuel NOMINEES FROM ALL EXCEPT
(03) Dr. Peter Liebert NOMINEES
The persons who have been nominated by Eastbourne to serve as directors,
other than Marina S. Bozilenko, Charles M. Fleischman and William A.
Nuerge.
The persons who have been nominated by Amylin to serve as directors, other
than Joseph C. Cook, Jr., James R. Gavin III, Jay S. Skyler, Joseph P.
Sullivan and James N. Wilson.
The Icahn Parties are NOT seeking authority to vote for and WILL NOT
exercise any authority to vote for Marina S. Bozilenko, Charles M.
Fleischman, William A. Nuerge, Joseph C. Cook, Jr., James R. Gavin III, Jay
S. Skyler, Joseph P. Sullivan and James N. Wilson. There is no assurance
that any of the Eastbourne nominees or Amylin nominees, respectively, will
serve as directors with each other or will serve as directors if any or all
of the Icahn Parties' nominees are elected to the Board. You should refer
to the proxy statement and form of proxy distributed by Eastbourne and
Amylin for the names, background, qualifications and other information
concerning the Eastbourne and Amylin nominees.
NOTE: IF YOU DO NOT WISH YOUR SHARES VOTED "FOR" A PARTICULAR NOMINEE, MARK
THE "FOR ALL EXCEPT" BOX AND WRITE THE NAME(S) OF THE NOMINEE(S) YOU DO NOT
SUPPORT ON THE LINE BELOW. YOU MAY ALSO WITHHOLD AUTHORITY TO VOTE FOR THE
PERSONS WHO HAVE BEEN NOMINATED BY EASTBOURNE TO SERVE AS DIRECTORS OTHER
THAN MARINA S. BOZILENKO, CHARLES M. FLEISCHMAN AND WILLIAM A. NUERGE AND
YOU MAY ALSO WITHHOLD AUTHORITY TO VOTE FOR THE PERSONS WHO HAVE BEEN
NOMINATED BY AMYLIN TO SERVE AS DIRECTORS OTHER THAN JOSEPH C. COOK, JR.,
JAMES R. GAVIN III, JAY S. SKYLER, JOSEPH P. SULLIVAN AND JAMES N. WILSON
BY WRITING THE NAMES OF SUCH NOMINEES BELOW. YOUR SHARES WILL BE VOTED FOR
THE REMAINING NOMINEE(S).
_______________________________________________________________________________
2. Amylin's 2009 Equity Incentive Plan [ ] [ ] [ ]
FOR AGAINST ABSTAIN
3. Amendment to the 2001 Employee Stock [ ] [ ] [ ]
Purchase Plan FOR AGAINST ABSTAIN
4. Ratification of appointment of Independent [ ] [ ] [ ]
Registered Public Accounting Firm FOR AGAINST ABSTAIN
5. North Dakota Reincorporation Proposal [ ] [ ] [ ]
FOR AGAINST ABSTAIN
Please be sure to sign and date this Proxy.
-------------------------------------------------- ------------------
SIGNATURE(S) OF STOCKHOLDER(S) DATE
-------------------------------------------------- ------------------
SIGNATURE(S) IF HELD JOINTLY
--------------------------------------------------
TITLE, IF ANY