SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[X] Soliciting Material Pursuant to 240.14a-12
Oshkosh Corporation
(Name of Registrant as Specified In Its Charter)
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II L.P.
Icahn Partners Master Fund III L.P.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital L.P.
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
A.B. Krongard
Vincent J. Intrieri
Samuel Merksamer
Jose Maria Alapont
Daniel A. Ninivaggi
Marc F. Gustafson
(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:
On November 4, 2011, Carl C. Icahn and affiliated entities filed amendment
No. 2 to Schedule 13D relating to Oshkosh Corporation, a copy of which is filed
herewith as Exhibit 1.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN AND HIS AFFILIATES FROM
THE SHAREHOLDERS OF OSHKOSH CORPORATION FOR USE AT ITS 2012 ANNUAL MEETING WHEN
THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING
INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. WHEN
COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO
SHAREHOLDERS OF OSHKOSH CORPORATION AND WILL ALSO BE AVAILABLE AT NO CHARGE AT
THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV.
INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION IS CONTAINED
IN EXHIBIT 1 HERETO.
EXHIBIT 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Oshkosh Corporation
(Name of Issuer)
Common Stock, Par Value $0.01
(Title of Class of Securities)
688239201
(CUSIP Number)
Keith Schaitkin, Esq.
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 4, 2011
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
Item 1. Security and Issuer
This statement constitutes Amendment No. 2 to the Schedule 13D relating to
the Common Stock, par value $0.01 (the "Shares"), issued by Oshkosh Corporation
(the "Issuer"), and hereby amends the Schedule 13D filed with the Securities and
Exchange Commission on June 30, 2011 and amended by Amendment No. 1 thereto (as
amended, the "Initial Schedule 13D"), on behalf of the Reporting Persons (as
defined in the Initial Schedule 13D), to furnish the additional information set
forth herein. All capitalized terms contained herein but not otherwise defined
shall have the meanings ascribed to such terms in the Initial Schedule 13D.
Item 4. Purpose of Transaction
Item 4 of the Initial Schedule 13D is hereby amended by adding the
following:
On November 4, 2011, the Reporting Persons delivered a letter to the Issuer
notifying the Issuer that the Reporting Persons intend to nominate and seek to
elect 6 individuals to the Issuer's 13-member board of directors. A copy of this
Letter is filed herewith as an exhibit and incorporated herein by reference.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER
DOCUMENTS RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN AND HIS
AFFILIATES FROM THE SHAREHOLDERS OF OSHKOSH CORPORATION FOR USE AT ITS 2012
ANNUAL MEETING WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY
SOLICITATION. WHEN COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY
WILL BE MAILED TO SHAREHOLDERS OF OSHKOSH CORPORATION AND WILL ALSO BE AVAILABLE
AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV.
Item 7. Material to be Filed as Exhibits
1. Nomination Notification Letter
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: November 4, 2011
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
HOPPER INVESTMENTS LLC
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward E. Mattner
------------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES G.P. INC.
By: /s/ Dominick Ragone
--------------------
Name: Dominick Ragone
Title: Chief Financial Officer
/s/ Carl C. Icahn
--------------------
CARL C. ICAHN
EXHIBIT 1
HIGH RIVER LIMITED PARTNERSHIP
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
c/o Icahn Capital LP
767 Fifth Avenue, 46th Floor
New York, NY 10153
November 3, 2011
VIA EMAIL AND BY-HAND
---------------------
Oshkosh Corporation
2307 Oregon Street
Oshkosh, Wisconsin 54903
Attention: Corporate Secretary
Re: Notice of Nomination of Directors at the 2012 Annual Meeting of
Shareholders of Oshkosh Corporation (the "Corporation")
---------------------------------------------------------------
Ladies and Gentlemen:
High River Limited Partnership, a Delaware limited partnership ("High
River" or the "Record Holder" hereby submits this notice (this "Notice") on the
date hereof pursuant to the requirements (the "Bylaw Requirements") set forth in
the By-laws of the Corporation (the "Bylaws") of its intent to nominate each
person on the Slate (as defined below) for election as directors of the Board of
Directors (the "Board") of the Corporation at the 2012 annual meeting of
shareholders of the Corporation (the "Annual Meeting"), or any special meeting
of shareholders of the Corporation called for a similar purpose. This Notice is
submitted by the Record Holder and on behalf of the Direct Beneficial Owners (as
defined below).
As of the close of business on November 3, 2011, (i) High River represents
that it is the holder of record of, and is entitled to vote, 1000 shares of
Common Stock, $0.01 par value per share, of the Corporation (the "Shares") and
that it is the direct beneficial owner of 1,733,054 Shares (including the 1000
Shares of which High River is the shareholder of record); (ii) Icahn Partners
LP, a Delaware limited partnership ("Icahn Partners"), represents that it is the
direct beneficial owner of 2,654,644 Shares and that it is not the holder of
record of any Shares; (iii) Icahn Partners Master Fund LP, a Cayman Islands
exempted limited partnership ("Icahn Master"), represents that it is the direct
beneficial owner of 2,867,004 Shares and that it is not the holder of record of
any Shares; (iv) Icahn Partners Master Fund II L.P., a Cayman Islands exempted
limited partnership ("Icahn Master II"), represents that it is the direct
beneficial owner of 982,896 Shares and that it is not the holder of record of
any Shares; (v) Icahn Partners Master Fund III L.P., a Cayman Islands exempted
limited partnership ("Icahn Master III" and collectively with High River, Icahn
Partners, Icahn Master and Icahn Master III, the "Direct Beneficial Owners"),
represents that it is the direct beneficial owner of 427,662 Shares and that it
is not the holder of record of any Shares; in each case as further described in
Annex A. Carl C. Icahn, by virtue of his relationship to High River, Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III is deemed to
beneficially own (as that term is defined in Rule 13d-3 of the Securities Act of
1933, as amended) the Shares which High River, Icahn Partners, Icahn Master,
Icahn Master II and Icahn Master III directly beneficially own, as further
described in Annex A.
The address of Icahn Partners is 767 Fifth Avenue, 46th Floor, New York, NY
10153. The address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands. The address of Icahn
Master II is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town,
Grand Cayman KY1-9002, Cayman Islands. The address of Icahn Master III is c/o
Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman
KY1-9002, Cayman Islands. The address of High River is 767 Fifth Avenue, 46th
Floor, New York, NY 10153. Each of Icahn Master, Icahn Master II, Icahn Master
III, Icahn Partners and High River is primarily engaged in the business of
investing in securities. High River believes that its name and address set forth
above is the name and address for the Record Holder that appears on the
Corporation's books.
The Record Holder hereby represents that it is a holder of record of shares
of the Corporation entitled to vote under the Corporation's Articles of
Incorporation at the Annual Meeting with respect to the nomination of the Slate
for election as directors of the Corporation and intends to appear in person or
by proxy at the Annual Meeting to nominate for election as directors of the
Board the following persons (each, a "Nominee" and collectively, the "Slate"):
A.B. Krongard
Vincent J. Intrieri
Samuel Merksamer
Jose Maria Alapont
Daniel A. Ninivaggi
Marc F. Gustafson
Mr. Krongard has an impressive background as a leader in both the private
and public sectors, having served as Chairman and Chief Executive Officer of
Alex. Brown Incorporated, the nation's oldest investment banking firm, and as
Executive Director of the Central Intelligence Agency. Mr. Intrieri has
significant experience as a director of various companies which enables him to
understand the complex business and financial issues that a company may face.
Mr. Merksamer has a strong record as a financial analyst and has served on a
number of public and private boards, which have provided him with a broad
understanding of the operational, financial and strategic issues facing public
and private companies. Mr. Alapont is a highly accomplished executive with more
than 30 years of global leadership experience at both vehicle manufacturers and
suppliers, with business and operations responsibilities in the Europe, Middle
East and Africa, Asia Pacific, and Americas regions. Mr. Ninivaggi has a strong
background in operations and management having served in various executive roles
and having served on a number of public and private boards, including Motorola
Mobility and CIT Group. Mr. Gustafson has a long and successful career in the
transportation industry, particularly the heavy truck industry, having served as
an executive officer of various companies in that industry. The Record Holder
believes that these individuals' knowledge of operations, investments, corporate
finance and law will significantly improve the expertise and leadership of the
Board.
In this Notice: (i) certain information relating to the Direct Beneficial
Owners and the Beneficial Owner(s) (as defined in Annex A) is set forth in the
body of this Notice and Annex A and Annex B; (ii) certain information relating
to each Nominee is set forth in the body of this Notice and Annex B, AnnexE,
AnnexF, AnnexG, AnnexH, AnnexI, AnnexJ and AnnexK, as applicable; and (iii) the
written consent of each Nominee to be named in the applicable proxy statement,
including as a nominee, and to serve as a director of the Corporation if so
elected is attached as Annex C. Each Nominee (other than Messrs. Intrieri,
Merksamer and Ninivaggi) is also party to an agreement substantially in the form
attached hereto as Annex D, pursuant to which Icahn Capital LP, an affiliate of
the Record Holder, has agreed to pay certain fees to such Nominee (other than
Mr. Alapont) and to indemnify such Nominee with respect to certain costs
incurred by such Nominee in connection with the proxy contest relating to the
Annual Meeting (the "Nominee Agreement").
Each Nominee, Direct Beneficial Owner and Beneficial Owner has an interest
in the election of directors at the Annual Meeting: (i) directly and/or
indirectly through the beneficial ownership (if any) of Shares, as described on
Annex A and any applicable attachments thereto; (ii) pursuant to the Nominee
Agreement, if applicable, relating to such Nominee and Icahn Capital LP; (iii)
with respect to Mr. Intrieri, indirectly through an investment in Icahn
Partners; (iv) with respect to Mr. Alapont, indirectly through an investment in
Icahn Partners; and (v) with respect to Mr. Ninivaggi, indirectly through
certain options to purchase depositary units of Icahn Enterprises L.P.
With respect to each Nominee, other than as disclosed in this Notice, (i)
such Nominee is not, and, within the past year, was not a party to any contract,
arrangement or understanding with any person with respect to any securities of
the Corporation, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Nominee nor any of such Nominee's associates have any arrangement
or understanding with any person with respect to (A) any future employment by
the Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Direct Beneficial Owner and each Beneficial Owner,
other than as disclosed in this Notice, (i) neither such Direct Beneficial Owner
nor such Beneficial Owner is, or was, within the past year, a party to any
contract, arrangement or understanding with any person with respect to any
securities of the Corporation, including, but not limited to, joint ventures,
loan or option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving or
withholding of proxies; and (ii) neither such Direct Beneficial Owner,
Beneficial Owner nor any of their respective associates have any arrangement or
understanding with any person with respect to (A) any future employment by the
Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Nominee, such Nominee is independent under the
independence standards applicable to the Corporation under (i) paragraph (a)(1)
of Item 407 of Regulation S-K and (ii) the New York Stock Exchange listing
standards.
Each of Vincent J. Intrieri, Samuel Merksamer and Daniel A. Ninivaggi is
employed by entities affiliated with Carl Icahn. Mr. Jose Maria Alapont is the
president, chief executive officer and a director of Federal-Mogul Corporation,
a NASDAQ listed auto parts supplier ("Federal-Mogul"). Icahn Enterprises L.P.
("Icahn Enterprises") is the owner of approximately 76% of the outstanding
shares of common stock of Federal Mogul. Carl C. Icahn is the indirect owner of
the general partner of Icahn Enterprises and the indirect holder of
approximately 92.5% of the outstanding depositary units representing limited
partnership interests in Icahn Enterprises. Carl C. Icahn is also the chairman
of the board of directors of Federal Mogul.
In September 2011, pursuant to an agreement with Icahn Capital LP, dated
August 17, 2011, Mr. Krongard was paid $25,000 by Icahn Capital LP for agreeing
to become a member of a slate of director nominees for The Clorox Company that
the Record Holder intended to nominate at the 2011 annual stockholder meeting of
The Clorox Company.
Vincent J. Intrieri entered into an agreement, dated as of December 31,
2004 (the "Original Intrieri Agreement") with certain affiliates of Mr. Icahn.
The term of the Original Intrieri Agreement ran from January 1, 2005 until
December 31, 2011. Under the Original Intrieri Agreement, Mr. Intrieri was
employed to act as a senior executive officer with the title of Senior Managing
Director and Mr. Intrieri agreed to work for various other affiliates of Mr.
Icahn for the aggregate consideration described below. Under the Original
Intrieri Agreement, Mr. Intrieri was entitled to receive cash compensation equal
to (i) a base salary at the rate of $400,000 per annum plus (ii) a bonus of
between $1,000,000 and $1,250,000 per annum, as determined by such affiliates of
Mr. Icahn. Under, the Original Intrieri Agreement, Mr. Intrieri was also
entitled to receive a 2.5% participatory interest in the profits and fees
derived by Mr. Icahn and/or his affiliated entities from Icahn Partners, Icahn
Master, Icahn Master II and Icahn Master III (the "Funds"). Because only a
portion of such profit interests are distributed and because of his other
investments in the Funds, Mr. Intrieri also has capital accounts in the Funds.
The portion of this profit participation consisting of his 2.5% management fee
participation was deferred until January 30, 2010 and was paid to him in fiscal
2010, in an aggregate amount equal to $699,319. Mr. Intrieri's 2.5%
participatory interest described above was superseded by the Current Intrieri
Agreement described below. Mr. Intrieri continues to hold an investment in Icahn
Partners.
On September 26, 2011, Mr. Intrieri entered into an employment agreement
(the "Current Intrieri Agreement") with Icahn Enterprises Holdings L.P. ("Icahn
Enterprises Holdings"), an affiliate of Mr. Icahn, the term of which commenced
on October 1, 2011. The Current Intrieri Agreement superseded and replaced the
Original Intrieri Agreement. Pursuant to the Current Intrieri Agreement, Mr.
Intrieri serves as Senior Vice President of Icahn Enterprises G.P. and Senior
Managing Director of the Funds. Mr. Intrieri's employment period continues under
the Current Intrieri Agreement through December 31, 2013, unless otherwise
terminated earlier or extended, in each case, pursuant to the terms of the
Current Intrieri Agreement. Pursuant to the Current Intrieri Agreement, Mr.
Intrieri is entitled to aggregate compensation of $6.5 million per annum. If the
Current Intrieri Agreement is extended beyond December 31, 2013 pursuant to the
terms thereof, Mr. Intrieri is entitled to aggregate compensation of $7.5
million per annum.
The Original Intrieri Agreement is further described on page 224 of the
Form 10-K for the fiscal year ended December 31, 2010, filed by Icahn
Enterprises with the Securities and Exchange Commission on March 8, 2011, which
is attached hereto as Annex E and incorporated herein by reference. The Current
Intrieri Agreement is further described on the Form 8-K filed by Icahn
Enterprises with the Securities and Exchange Commission on September 30, 2011,
which is attached hereto as AnnexF and incorporated herein by reference. In
addition, for your reference the Current Intrieri Agreement and the Original
Intrieri Agreement (with amendments) are attached hereto as part of AnnexF and
as Annex G, respectively, and incorporated herein by reference.
Samuel Merksamer entered into an employment agreement with Icahn Capital
LP, an affiliate of Mr. Icahn, on May 12, 2008, pursuant to which Mr. Merksamer
was employed as an Investment Analyst with Icahn Capital LP. The term of this
agreement commenced on May 12, 2008 and ends on December 31, 2011, unless
earlier under the terms thereof. Under this agreement, Mr. Merksamer is entitled
to a base salary of $175,000 per annum and a discretionary bonus of up to 150%
of base salary for December 31, 2008, up to 150% of base salary for December 31,
2009, up to 200% of base salary for December 31, 2010, and up to 250% of base
salary for December 31, 2011. Under this agreement, Mr. Merksamer was paid
aggregate compensation of $325,000 for the year ended December 31, 2008,
$525,000 for the year ended December 31, 2009, and $675,000 for the year ended
December 31, 2010. Under this agreement, Mr. Merksamer is also entitled to
participate in certain benefit programs and plans of Icahn Capital LP. He is
also subject to certain confidentiality, non-solicit and non-compete obligations
thereunder.
The Federal-Mogul Corporation, an affiliate of Mr. Icahn ("Federal Mogul")
entered into an employment agreement (the "Original Alapont Agreement") with Mr.
Alapont on February 2, 2005. The Original Alapont Agreement had a five year
term, and provided for a base annual salary of $1.5 million. It also provided an
opportunity for an annual bonus in the target amount of $1.5 million, with the
actual bonus ranging from no bonus to up to 150% of this target amount, based on
the financial performance of the Federal Mogul.
The Original Alapont Agreement was amended and restated as of March 23,
2010 (the "Current Alapont Agreement"). Under the Current Alapont Agreement, Mr.
Alapont agreed to serve as President and CEO of the Federal Mogul for a three
year period ending March 23, 2013 (the "Extended Term") at a salary of $1.5
million per annum and with an annual cash bonus not to exceed $1.5 million per
annum. The Current Alapont Agreement provides for payments under certain benefit
plans and fringe benefits to Mr. Alapont in any calendar year in an aggregate
dollar amount not greater than 125% of the aggregate 2009 dollar amount of
payments under such benefit plans and fringe benefits.
As of March 23, 2010, Mr. Alapont has fully qualified for 20 years of
service credit under Federal Mogul's KEY Executive Pension Plan (the "KEY
Plan"), and accordingly no further years of service credit may be earned under
the Key Plan and he may retire from Federal Mogul and receive benefits under
this plan at any time. Pursuant to the Current Alapont Agreement, Federal Mogul
and Mr. Alapont agreed that for purposes of determining "Final Average
Compensation" (as such term is defined in the KEY Plan) the period for
determining the three consecutive years in which Mr. Alapont earned the highest
compensation will be the five year period ending March 23, 2010.
In connection with the Current Alapont Agreement, Federal Mogul and Mr.
Alapont agreed to restate a prior Stock Option Agreement, dated February 15,
2008 (the "Prior Stock Option Agreement") between Federal Mogul and Mr. Alapont
in respect of options to purchase four million shares of Common Stock of Federal
Mogul under the Stock Option Agreement (the "Option") and did so by entering
into a Restated Stock Option Agreement, dated as of March 23, 2010 (the
"Restated Option Agreement"). The Option has fully vested as of March 23, 2010
and is fully exercisable in accordance with the terms of the Restated Option
Agreement as of such date. The Stock Option Agreement provided that in no event
would the Option be exercised after December 27, 2014. Under the Restated Stock
Option Agreement if, on any date prior to December 27, 2014, Mr. Alapont is no
longer employed by the Federal Mogul for any reason whatsoever (the date on
which such event occurs being the "Relevant Date"), then the Option shall be
exercisable by Mr. Alapont until and including the earlier of (i) the date which
is the 90th day after the Relevant Date, and (ii) December 27, 2014.
Federal Mogul and Mr. Alapont also entered into an Amended and Restated
Deferred Compensation Agreement (the "Deferred Compensation Agreement"), dated
as of March 23, 2010, to reflect the Extended Term.
The Original Alapont Agreement is further described on the Form 8-K filed
by Federal Mogul with the Securities and Exchange Commission on February 4,
2005, which is attached hereto as AnnexH and incorporated herein by reference.
Each of the Current Alapont Agreement, the Restated Option Agreement and the
Deferred Compensation Agreement is further described on the Form 8-K filed by
Federal Mogul with the Securities and Exchange Commission on March 24, 2010,
which is attached hereto as Annex I and incorporated herein by reference. The
terms of Mr. Alapont's employment with Federal Mogul are further described in
the Compensation Discussion and Analysis Section (beginning on page 17) of the
Definitive Proxy Statement on Schedule 14A file by Federal Mogul with the
Securities and Exchange Commission on April 15, 2011, which is attached hereto
as Annex J and incorporated herein by reference. In addition, for your reference
the Original Alapont Agreement and each of the Current Alapont Agreement, the
Restated Option Agreement and the Deferred Compensation Agreement are attached
hereto as part of Annex H and Annex I, respectively, and incorporated herein by
reference.
On February 11, 2010, Icahn Enterprises entered into an employment
agreement with Daniel A. Ninivaggi (the "Ninivaggi Agreement") pursuant to which
Mr. Ninivaggi serves as the President of Icahn Enterprises, Icahn Enterprises
Holdings L.P. and Icahn Enterprises GP Inc., affiliates of Mr. Icahn. Under the
Ninivaggi Agreement, Mr. Ninivaggi is (1) principally responsible for overseeing
portfolio company operations, generally not including the entities involved with
the hedge funds managed and advised by subsidiaries of Icahn Enterprises
Holdings L.P. and (2) involved with acquisitions, dispositions and financings
engaged in by Icahn Enterprises, Icahn Enterprises Holdings L.P. and
subsidiaries.
Pursuant to the Ninivaggi Agreement, Mr. Ninivaggi is entitled to: (i) a
base salary at the per annum rate of $650,000 for the period ending December 31,
2010 and for each of the calendar years ending December 31, 2011 and 2012; (ii)
a bonus in the amount of $550,000 for the period ending on December 31, 2010;
and (iii) a bonus of not less than $450,000 and not more than $650,000 for each
of the calendar years ending December 31, 2011 and 2012. Mr. Ninivaggi also
received a relocation payment of $300,000 in connection with the commencement of
his employment.
In addition, on February 11, 2010, Icahn Enterprises and Mr. Ninivaggi
entered into a Class A Option Agreement and Class B Option Agreement (together,
the "Option Agreements"). Pursuant to terms of the Ninivaggi Agreement, Mr.
Ninivaggi was granted Class A options to purchase 100,000 Depositary Units
("Units") of Icahn Enterprises with an exercise price of $45.60 per Unit, and
Class B options to purchase 100,000 Units with an exercise price of $55.60 per
Unit. Each of the Class A options and the Class B options (collectively, the
"Options") shall vest as to 33,334 Options, on December 31, 2010; 33,333 Options
on December 31, 2011 and the balance of 33,333 Options on December 31, 2012. The
Options shall expire on December 31, 2014 except as otherwise set forth in the
Ninivaggi Agreement or the Option Agreements.
The Ninivaggi Agreement is further described on page 216 of, and the terms
of Mr. Ninivaggi's employment are further described in the Compensation
Discussion and Analysis section beginning on page 208 of, the Form 10-K for the
fiscal year ended December 31, 2010 filed by Icahn Enterprises with the
Securities and Exchange Commission on March 8, 2011, which is attached hereto as
Annex E and incorporated herein by reference. Each of the Ninivaggi Agreement
and the Option Agreements is also further described on the Form 8-K filed by
Icahn Enterprises with the Securities and Exchange Commission on February 18,
2010, which is attached hereto as Annex K and incorporated herein by reference.
In addition, for your reference the Ninivaggi Agreement and the Option
Agreements are attached hereto as part of Annex K and are incorporated herein by
reference.
The Annexes and all attachments thereto are hereby incorporated into and
made a part of this Notice. Accordingly, all matters disclosed in any part of
this Notice, including the Annexes and all attachments thereto should be deemed
disclosed for all purposes of this Notice. All upper case terms appearing in the
Annexes and all attachments thereto that are not defined in such Annexes and
attachments shall have the meanings given in the body of this Notice or the
Annexes, as applicable.
Information is set forth herein as of the close of business on November 3,
2011. Except as required by Section 2.11(a)(ii) of the Bylaws, neither the
delivery of this Notice nor any delivery by any Direct Beneficial Owner,
Beneficial Owner, or Nominee of additional information to the Corporation from
and after the date hereof shall be deemed to constitute an admission by any
Direct Beneficial Owner, Beneficial Owner, Nominee or any of their respective
affiliates (if any) that such delivery is required or that each and every item
or any item of information is required or as to the legality or enforceability
of any notice requirement or any other matter, or a waiver by any Direct
Beneficial Owner, Beneficial Owner, Nominee or any of their respective
affiliates (if any) of their right to contest or challenge, in any way, the
validity or enforceability of any notice requirement or any other matter
(including actions taken by the Board in anticipation of, or following receipt
of, this Notice). Furthermore, this Notice assumes that the Board will nominate
a total of thirteen (13) director nominees for election to the Board at the
Annual Meeting and if the Board (i) increases the number of directors to be
nominated and elected at the Annual Meeting or a special meeting called for a
similar purpose, the Record Holder reserves the right to add additional director
nominees in respect of each such additional directorship or (ii) decreases the
number of directors to be nominated and elected at the Annual Meeting or a
special meeting called for a similar purpose, the Record Holder reserves the
right to remove director nominees from the Slate in respect of each such
decreased directorship. In the event any statement or other information in this
Notice is not correct, or to the extent any applicable information has been
omitted from this Notice, the Direct Beneficial Owners, Beneficial Owners and
Nominees reserve the right to correct and/or supplement any such statement or
other information set forth in this Notice.
[Signature page follows]
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
Dated November 3, 2011
ICAHN PARTNERS LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
Dated November 3, 2011
ICAHN PARTNERS MASTER FUND LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
Dated November 3, 2011
ICAHN PARTNERS MASTER FUND II L.P.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
Dated November 3, 2011
ICAHN PARTNERS MASTER FUND III L.P.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
Dated November 3, 2011
[Signature page to Shareholders' Notice for the 2012 Annual Meeting of
Shareholders of Oshkosh Corporation.]
ANNEX A
(1) TITLE (2) NAME OF (3) AMOUNT OF (4) PERCENT
OF BENEFICIAL BENEFICIAL OF
CLASS OWNER (1) OWNERSHIP CLASS (2)
----- ---------- ---------- -------
Common Stock, High River 1,733,054 1.90%
par value
$0.01 per
share ("Shares")
Shares Icahn Partners 2,654,644 2.91%
Shares Icahn Master 2,867,004 3.14%
Shares Icahn Master II 982,896 1.08%
Shares Icahn Master III 427,662 0.47%
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River. Beckton Corp., a Delaware corporation
("Beckton") is the sole shareholder of Icahn Enterprises G.P. Inc., a Delaware
corporation ("Icahn Enterprises GP"), which is the general partner of Icahn
Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Holdings").
Icahn Holdings is the sole member of IPH GP LLC, a Delaware limited liability
company ("IPH"), which is the general partner of Icahn Capital L.P., a Delaware
limited partnership ("Icahn Capital"). Icahn Capital is the general partner of
each of Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore") and
Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"). Icahn
Onshore is the general partner of Icahn Partners. Icahn Offshore is the general
partner of each of Icahn Master, Icahn Master II and Icahn Master III. Each of
Barberry and Beckton is 100 percent owned by Carl C. Icahn ("Mr. Icahn," and
collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn
Holdings, IPH, Icahn Capital, Icahn Onshore and 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 Direct Beneficial Owners and the Beneficial Owners.
The principal business address of each of (i) Icahn Offshore, Icahn Onshore,
Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is White
_________________________
(1) Please note that each shareholder listed in this table is, as of November
3, 2011, 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 and Beneficial Owners."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the 91,181,486 Shares stated to be outstanding as of
July 22, 2011 by the Corporation in the Corporation's Form 10-Q filed for
the quarterly period ended June 30, 2011.
Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and (ii)
Mr. Icahn, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue, 46th
Floor, New York, NY 10153.
Barberry is primarily engaged in the business of serving as the sole member
of Hopper and investing in securities. Hopper is primarily engaged in the
business of serving as the general partner of High River and investing in
securities. Icahn Offshore is primarily engaged in the business of serving as
the general partner of each of Icahn Master, Icahn Master II and Icahn Master
III. Icahn Onshore is primarily engaged in the business of serving as the
general partner of Icahn Partners. Icahn Capital is primarily engaged in the
business of serving as the general partner of each of Icahn Offshore and Icahn
Onshore. IPH is primarily engaged in the business of serving as the general
partner of Icahn Capital. Icahn Holdings is primarily engaged in the business of
holding direct or indirect interests in various operating businesses. Icahn
Enterprises GP is primarily engaged in the business of serving as the general
partner of each of Icahn Enterprises and Icahn Holdings. Beckton is primarily
engaged in the business of holding the capital stock of Icahn Enterprises GP.
Mr. Carl C. Icahn is primarily engaged in serving as (i) Chief Executive Officer
of Icahn Capital LP, a wholly owned subsidiary of Icahn Enterprises, through
which Mr. Icahn manages various private investment funds, including Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III, (ii) Chairman of
the Board of Icahn Enterprises GP, the general partner of Icahn Enterprises
L.P., a New York Stock Exchange listed diversified holding company engaged in a
variety of businesses, including investment management, automotive, gaming,
railcar, food packaging, metals, real estate and home fashion, and (iii)
Chairman of the Board and a director of Starfire Holding Corporation
("Starfire"), a holding company engaged in the business of investing in and/or
holding securities of various entities, and as Chairman of the Board and a
director of various of Starfire's subsidiaries.
The Direct Beneficial Owners and the Beneficial Owners may be deemed to
beneficially own, in the aggregate, 8,665,260 Shares, representing approximately
9.50% of the Corporation's outstanding Shares (based upon the 91,181,486 Shares
stated to be outstanding as of July 22, 2011 by the Corporation in the
Corporation's Form 10-Q filed for the quarterly period ended June 30, 2011).
High River has sole voting power and/or sole dispositive power with regard
to 1,733,054 Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting
power and/or shared dispositive power with regard to such Shares. Icahn Partners
has sole voting power and/or sole dispositive power with regard to 2,654,644
Shares. Each of Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and/or shared
dispositive power with regard to such Shares. Icahn Master has sole voting power
and/or sole dispositive power with regard to 2,867,004 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn has shared voting power and/or shared dispositive power with regard to
such Shares. Icahn Master II has sole voting power and/or sole dispositive power
with regard to 982,896 Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn
Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting power
and/or shared dispositive power with regard to such Shares. Icahn Master III has
sole voting power and/or sole dispositive power with regard to 427,662 Shares.
Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises
GP, Beckton and Mr. Icahn has shared voting power and/or shared dispositive
power with regard to such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 1,733,054 Shares
which High River directly beneficially owns. Each of Icahn Onshore, Icahn
Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn, by
virtue of their relationships to Icahn Partners, may be deemed to indirectly
beneficially own the 2,654,644 Shares which Icahn Partners directly beneficially
owns. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Master, Icahn Master II and Icahn Master III, may be deemed to indirectly
beneficially own the 4,277,562 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares by
Mr. Icahn and his affiliates within the past two years, and the number of Shares
in each such purchase and sale.
NAME DATE SHARES PURCHASED
---- ---- ----------------
High River 4/29/2011 20,640
High River 4/29/2011 114,440
High River 5/02/2011 108,012
High River 5/02/2011 6,520
High River 5/03/2011 120,001
High River 5/03/2011 980
High River 5/04/2011 55,000
High River 6/28/2011 12,824
High River 6/29/2011 1,460
High River 6/30/2011 60,000
High River 8/31/2011 1,233,177 (3)
Icahn Partners 4/29/2011 31,710
Icahn Partners 4/29/2011 175,821
Icahn Partners 5/02/2011 164,869
Icahn Partners 5/02/2011 9,989
Icahn Partners 5/03/2011 183,831
Icahn Partners 5/03/2011 1,503
Icahn Partners 5/04/2011 84,255
Icahn Partners 6/28/2011 19,643
Icahn Partners 6/29/2011 2,236
Icahn Partners 6/30/2011 91,906
Icahn Partners 8/31/2011 1,888,881 (3)
Icahn Master 4/29/2011 33,915
Icahn Master 4/29/2011 188,043
Icahn Master 5/02/2011 180,077
Icahn Master 5/02/2011 10,783
Icahn Master 5/03/2011 198,462
Icahn Master 5/03/2011 1,621
Icahn Master 5/04/2011 90,961
Icahn Master 6/28/2011 21,215
Icahn Master 6/29/2011 2,415
Icahn Master 6/30/2011 99,258
Icahn Master 8/31/2011 2,040,254 (3)
Icahn Master II 4/29/2011 11,810
Icahn Master II 4/29/2011 65,483
Icahn Master II 5/02/2011 60,685
Icahn Master II 5/02/2011 3,701
Icahn Master II 5/03/2011 68,112
Icahn Master II 5/03/2011 556
Icahn Master II 5/04/2011 31,218
Icahn Master II 6/28/2011 7,273
Icahn Master II 6/29/2011 828
Icahn Master II 6/30/2011 34,029
Icahn Master II 8/31/2011 699,201 (3)
Icahn Master III 4/29/2011 5,125
Icahn Master III 4/29/2011 28,413
Icahn Master III 5/02/2011 26,416
Icahn Master III 5/02/2011 1,607
Icahn Master III 5/03/2011 29,597
Icahn Master III 5/03/2011 240
Icahn Master III 5/04/2011 13,566
Icahn Master III 6/28/2011 3,164
Icahn Master III 6/29/2011 361
Icahn Master III 6/30/2011 14,807
Icahn Master III 8/31/2011 304,366 (3)
_________________________
(3) The Direct Beneficial Owner acquired these Shares upon the exercise of
call options as described on Attachment I-A to this Annex
Shares purchased by each of the Direct Beneficial Owners are maintained in
margin accounts that include positions in securities in addition to the Shares.
As of November 2, 2011, the indebtedness of (i) High River's margin account was
approximately $555.8 million, (ii) Icahn Partners' margin account was
approximately $810.1 million, (iii) Icahn Master's margin account was
approximately $831.8 million, (iv) Icahn Master II's margin account was
approximately $256.0 million, and (v) Icahn Master III's margin account was
approximately $117.2 million.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Direct Beneficial
Owners, which were written by UBS AG with a $19.84 strike price and an
expiration date of May 3, 2013, and which provided for physical settlement.
These are further described in the chart set forth below. On August 31, 2011,
the Direct Beneficial Owners exercised all of their respective call options.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
High River 5/05/2011 100,000 1,068,350.00
High River 5/06/2011 140,000 1,498,350.00
High River 5/09/2011 77,160 822,371.28
High River 5/10/2011 55,000 590,386.50
High River 5/11/2011 112,164 1,164,419.35
High River 6/20/2011 145,000 895,723.00
High River 6/21/2011 170,338 1,215,157.22
High River 6/22/2011 146,643 1,126,907.46
High River 6/23/2011 75,870 545,573.58
High River 6/24/2011 106,002 840,988.07
High River 6/27/2011 100,000 800,810.00
High River 6/30/2011 5,000 45,665.50
Icahn Partners 5/05/2011 153,195 1,636,658.78
Icahn Partners 5/06/2011 214,470 2,295,365.18
Icahn Partners 5/09/2011 118,204 1,259,818.23
Icahn Partners 5/10/2011 84,256 904,429.18
Icahn Partners 5/11/2011 171,827 1,783,804.82
Icahn Partners 6/20/2011 221,962 1,371,148.06
Icahn Partners 6/21/2011 260,919 1,861,343.96
Icahn Partners 6/22/2011 224,623 1,726,160.37
Icahn Partners 6/23/2011 116,217 835,704.83
Icahn Partners 6/24/2011 162,371 1,288,202.80
Icahn Partners 6/27/2011 153,177 1,226,656.73
Icahn Partners 6/30/2011 7,660 69,959.55
Icahn Master 05/05/2011 165,384 1,766,879.96
Icahn Master 05/06/2011 231,538 2,478,035.45
Icahn Master 05/09/2011 127,610 1,360,067.38
Icahn Master 05/10/2011 90,962 976,413.40
Icahn Master 05/11/2011 185,500 1,925,749.70
Icahn Master 06/20/2011 240,302 1,484,441.57
Icahn Master 06/21/2011 281,792 2,010,247.77
Icahn Master 06/22/2011 242,592 1,864,246.74
Icahn Master 06/23/2011 125,512 902,544.24
Icahn Master 06/24/2011 175,359 1,391,245.70
Icahn Master 06/27/2011 165,431 1,324,787.99
Icahn Master 06/30/2011 8,272 75,549.00
Icahn Master II 05/05/2011 56,760 606,395.46
Icahn Master II 05/06/2011 79,462 850,442.06
Icahn Master II 05/09/2011 43,797 466,788.43
Icahn Master II 05/10/2011 31,216 335,081.91
Icahn Master II 05/11/2011 63,666 660,942.21
Icahn Master II 06/20/2011 81,827 505,478.11
Icahn Master II 06/21/2011 96,607 689,175.02
Icahn Master II 06/22/2011 83,168 639,121.13
Icahn Master II 06/23/2011 43,029 309,417.24
Icahn Master II 06/24/2011 60,119 476,966.11
Icahn Master II 06/27/2011 56,715 454,179.39
Icahn Master II 06/30/2011 2,835 25,892.34
Icahn Master III 05/05/2011 24,661 263,465.79
Icahn Master III 05/06/2011 34,530 369,557.33
Icahn Master III 05/09/2011 19,029 202,811.08
Icahn Master III 05/10/2011 13,566 145,621.51
Icahn Master III 05/11/2011 27,661 287,159.91
Icahn Master III 06/20/2011 35,909 221,824.26
Icahn Master III 06/21/2011 42,033 299,855.02
Icahn Master III 06/22/2011 36,187 278,086.24
Icahn Master III 06/23/2011 18,722 134,628.03
Icahn Master III 06/24/2011 26,158 207,529.72
Icahn Master III 06/27/2011 24,677 197,615.88
Icahn Master III 06/30/2011 1,233 11,261.11
ANNEX A
ATTACHMENT 1-B
The following are European put options which were written by the Direct
Beneficial Owners to UBS AG and had a $19.84 strike price and an expiration date
of the earlier of May 3, 2013 or the date on which the corresponding
American-style call option described in Annex A, Attachment 1-A is exercised,
and provided for cash settlement only and are further described in the chart set
forth below. On August 31, 2011, the Direct Beneficial Owners exercised all of
the call options described in Annex A, Attachment 1-A, and upon exercise of the
call options, all of the put options described below expired pursuant to their
terms.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
High River 5/05/2011 100,000 1,000.00
High River 5/06/2011 140,000 1,400.00
High River 5/09/2011 77,160 771.60
High River 5/10/2011 55,000 550.00
High River 5/11/2011 112,164 1,121.64
High River 6/20/2011 145,000 1,450.00
High River 6/21/2011 170,338 1,703.38
High River 6/22/2011 146,643 1,466.43
High River 6/23/2011 75,870 758.70
High River 6/24/2011 106,002 1,060.02
High River 6/27/2011 100,000 1,000.00
High River 6/30/2011 5,000 50.00
Icahn Partners 5/05/2011 153,195 1,531.95
Icahn Partners 5/06/2011 214,470 2,144.70
Icahn Partners 5/09/2011 118,204 1,182.04
Icahn Partners 5/10/2011 84,256 842.56
Icahn Partners 5/11/2011 171,827 1,718.27
Icahn Partners 6/20/2011 221,962 2,219.62
Icahn Partners 6/21/2011 260,919 2,609.19
Icahn Partners 6/22/2011 224,623 2,246.23
Icahn Partners 6/23/2011 116,217 1,162.17
Icahn Partners 6/24/2011 162,371 1,623.71
Icahn Partners 6/27/2011 153,177 1,531.77
Icahn Partners 6/30/2011 7,660 76.60
Icahn Master 5/05/2011 165,384 1,653.84
Icahn Master 5/06/2011 231,538 2,315.38
Icahn Master 5/09/2011 127,610 1,276.10
Icahn Master 5/10/2011 90,962 909.62
Icahn Master 5/11/2011 185,500 1,855.00
Icahn Master 6/20/2011 240,302 2,403.02
Icahn Master 6/21/2011 281,792 2,817.92
Icahn Master 6/22/2011 242,592 2,425.92
Icahn Master 6/23/2011 125,512 1,255.12
Icahn Master 6/24/2011 175,359 1,753.59
Icahn Master 6/27/2011 165,431 1,654.31
Icahn Master 6/30/2011 8,272 82.72
Icahn Master II 5/05/2011 56,760 567.60
Icahn Master II 5/06/2011 79,462 794.62
Icahn Master II 5/09/2011 43,797 437.97
Icahn Master II 5/10/2011 31,216 312.16
Icahn Master II 5/11/2011 63,666 636.66
Icahn Master II 6/20/2011 81,827 818.27
Icahn Master II 6/21/2011 96,607 966.07
Icahn Master II 6/22/2011 83,168 831.68
Icahn Master II 6/23/2011 43,029 430.29
Icahn Master II 6/24/2011 60,119 601.19
Icahn Master II 6/27/2011 56,715 567.15
Icahn Master II 6/30/2011 2,835 28.35
Icahn Master III 5/05/2011 24,661 246.61
Icahn Master III 5/06/2011 34,530 345.30
Icahn Master III 5/09/2011 19,029 190.29
Icahn Master III 5/10/2011 13,566 135.66
Icahn Master III 5/11/2011 27,661 276.61
Icahn Master III 6/20/2011 35,909 359.09
Icahn Master III 6/21/2011 42,033 420.33
Icahn Master III 6/22/2011 36,187 361.87
Icahn Master III 6/23/2011 18,722 187.22
Icahn Master III 6/24/2011 26,158 261.58
Icahn Master III 6/27/2011 24,677 246.77
Icahn Master III 6/30/2011 1,233 12.33
ANNEX B
ATTACHMENT 1
INFORMATION ABOUT NOMINEES
----------------------------
NAME: A.B. Krongard
AGE: 75
BUSINESS 1400 West Seminary Avenue
ADDRESS: Lutherville, Maryland 21093
RESIDENCE 1400 West Seminary Avenue
ADDRESS: Lutherville, Maryland 21093
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CITIZENSHIP: United States of America
Mr. Krongard does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Krongard has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
Mr. Krongard serves as an outside director on the Global Board of DLA Piper.
DLA Piper is one of the world's largest law firms with over 2,800 lawyers in 49
offices in 18 countries. In addition, he is the Lead Director of Under Armour
Inc. where he chairs the Audit Committee. He is also a member of the Board of
Iridium Communications Inc. and In-Q-Tel. He serves as Vice Chairman of the
Johns Hopkins Health System, Chairman of The Baltimore Police Foundation and
member of the audit committee of Apollo Global Management, LLC.
Mr. Krongard retired from the Central Intelligence Agency on November 30, 2004
where he had been Executive Director since March, 2001. Prior to this
appointment, Mr. Krongard served as Counselor to the Director of Central
Intelligence from February 2, 1998, after a 29-year career in investment
banking.
Mr. Krongard had previously worked in various capacities at Alex. Brown
Incorporated, the nation's oldest investment banking firm. In 1991, he was
elected as Chief Executive Officer and assumed the additional duties of Chairman
of the Board in 1994. Upon the merger of Alex Brown with Bankers Trust
Corporation in September 1997, Mr. Krongard became Vice Chairman of the Board of
Bankers Trust and served in such capacity until joining the Central Intelligence
Agency.
Mr. Krongard served as Chairman of the Securities Industry Association in 1996
and was named the Outstanding Executive in the financial services industry in
1995 and 1996 by Financial World. In 1997, he received the Golden Plate Award
from the American Academy of Achievement.
Mr. Krongard received an A.B. Degree with honors from Princeton University in
1958 and a Juris Doctor Degree with honors from the University of Maryland
School of Law in 1975.
ANNEX B
ATTACHMENT 2
INFORMATION ABOUT NOMINEES
NAME: Vincent J. Intrieri
AGE: 55
BUSINESS Icahn Capital LP, 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
RESIDENCE 200 East 66th Street, Apt. B1205
ADDRESS: New York, NY 10065
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CITIZENSHIP: United States of America
Mr. Intrieri has an interest in the election of directors through an investment
in Icahn Partners LP. Other than in respect of such investment (to the extent
applicable), Mr. Intrieri does not, and his associates do not, own, beneficially
or of record, any shares of capital stock of the Corporation.
Mr. Intrieri served as a Senior Managing Director of Icahn Capital Management
L.P. from August 8, 2007 until December 31, 2007. From January 1, 2008 to
September 30, 2011, Mr. Intrieri served as a Senior Managing Director of Icahn
Capital L.P., the entity through which Carl C. Icahn manages third party
investment funds and since October 1, 2011, Mr. Intrieri has served as Senior
Vice President of Icahn Enterprises G.P. and Senior Managing Director of Icahn
Capital L.P. Since November 2004, Mr. Intrieri has been a Senior Managing
Director of Icahn Onshore LP, the general partner of Icahn Partners, and Icahn
Offshore, the general partner of Icahn Master, Icahn Master II and Icahn Master
III. Mr. Intrieri has served as a director of Icahn Enterprises G.P. Inc., the
general partner of Icahn Enterprises L.P. since July 2006. Since November 2005,
Mr. Intrieri has been a director of WestPoint International, Inc., a
manufacturer and distributor of home fashion consumer products. Mr. Intrieri
also serves on the board of directors of FederalMogul Corporation, a supplier of
automotive products. Since December 2007, Mr. Intrieri has been chairman of the
board and a director of PSC Metals, Inc. and, since December 2006, he has been a
director of National Energy Group, Inc. Since January 1, 2005, Mr. Intrieri has
been Senior Managing Director of Icahn Associates Corp. and High River Limited
Partnership, entities primarily engaged in the business of holding and investing
in securities. From April 2005 through September 2008, Mr. Intrieri served as
the President and Chief Executive Officer of Philip Services Corporation, an
industrial services company. Since August 2005, Mr. Intrieri has served as a
director of American Railcar Industries, Inc., a company that is primarily
engaged in the business of manufacturing covered hopper and tank railcars. From
March 2005 to December 2005, Mr. Intrieri was a Senior Vice President, the
Treasurer and the Secretary of American Railcar Industries. Since April 2003,
Mr. Intrieri has been chairman of the board of directors and a director of
Viskase Companies, Inc., a producer of cellulosic and plastic casings used in
preparing and packaging processed meat products. Since March 2011, Mr. Intrieri
has served as a director of Dynegy Inc., a company primarily engaged in the
production and sale of electric energy, capacity and ancillary services. From
November 2006 to November 2008, Mr. Intrieri served on the board of directors of
Lear Corporation, a global supplier of automotive seating and electrical power
management systems and components. From August 2008 through September 2009, Mr.
Intrieri was a director of WCI Communities, Inc., a homebuilding company. Mr.
Intrieri also serves on the board of directors of XO Holdings, LLC, a
telecommunications company. Since January 4, 2011, Mr. Intrieri has been a
director of Motorola Solutions, Inc., a provider of communication products and
services. With respect to each company mentioned above, Mr. Carl Icahn, directly
or indirectly, either (i) controls such company or (ii) has an interest in such
company through the ownership of securities. Mr. Intrieri is a certified public
accountant.
ANNEX B
ATTACHMENT 3
INFORMATION ABOUT NOMINEES
NAME: Samuel Merksamer
AGE: 31
BUSINESS 767 Fifth Avenue, 47th
ADDRESS: Floor, New York, NY 10153
RESIDENCE 9 Seneca Trail
ADDRESS: Harrison, New York 10528
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CITIZENSHIP: United States of America
Mr. Merksamer does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation.
Mr. Merksamer has served as an investment analyst at Icahn Capital LP, a
subsidiary of Icahn Enterprises L.P., since May 2008. Mr. Merksamer is
responsible for identifying, analyzing and monitoring investment opportunities
and portfolio companies for Icahn Capital. Mr. Merksamer serves as a director of
Dynegy Inc., Viskase Companies, Inc., American Railcar Industries Inc., PSC
Metals Inc. and Federal-Mogul Corporation. Viskase Companies, PSC Metals,
American Railcar Industries Inc. and Federal-Mogul are each, directly or
indirectly, controlled by Carl C. Icahn. Mr. Icahn also has an interest in
Dynegy Inc. through the ownership of securities. From 2003 until 2008, Mr.
Merksamer was an analyst at Airlie Opportunity Capital Management, a hedge fund
management company, where he focused on high yield and distressed investments.
Mr. Merksamer received an A.B. in Economics from Cornell University in 2002.
ANNEX B
ATTACHMENT 4
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Jose Maria Alapont
AGE: 61
BUSINESS 26555 Northwestern Highway
ADDRESS: Southfield, Michigan 48033
RESIDENCE 1772 Heron Ridge Drive
ADDRESS: Bloomfield Hills, MI 48302
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CITIZENSHIP: Spain
Mr. Alapont has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex D and indirectly
through an investment in Icahn Partners LP. Other than in respect of such
investment (to the extent applicable), Mr. Alapont does not, and his associates
do not, own, beneficially or of record, any shares of capital stock of the
Corporation.
Since March 2005, Jose Maria Alapont has been president, chief executive officer
and a director of Federal-Mogul Corporation ("Federal-Mogul"), a supplier of
automotive products that is an affiliate of Mr. Carl C. Icahn. Mr. Alapont
served as chairman of the board of directors of Federal-Mogul from 2005 to 2007.
He has more than 35 years of global leadership experience in both vehicle
manufacturers and suppliers with business and operations responsibilities in the
Americas, Asia Pacific, Europe, Middle East and Africa regions.
Mr. Alapont, between 2003 and 2005 was chief executive officer and a member of
the board of directors of Fiat IVECO, the manufacturer of light, medium and
heavy-duty commercial vehicles, engines, passenger transport, defense and
fire-fighting vehicles.
He served in various key executive positions at Delphi Corporation, a global
automotive supplier from 1997 to 2003. He began at Delphi as executive director
of international operations. In 1999, Mr. Alapont was named president of Delphi
Europe, Middle East and Africa and a vice president of Delphi Corporation and
also became a member of the Delphi Strategy Board, the company's top
policy-making group. In 2003, Mr. Alapont was named president of Delphi's
international operations, and vice president of sales and marketing.
Mr. Alapont, from 1990 to 1997, served in several executive roles and was a
member of the Strategy Board at Valeo, a global automotive supplier. He started
at Valeo as managing director of engine cooling systems, Spain. In 1991, Mr.
Alapont was named executive director of Valeo's worldwide heavy-duty engine
cooling operations. In 1992, he became group vice president of Valeo's worldwide
clutch and transmission components division. He was named group vice president
of the company's worldwide lighting systems division in 1996. Since May 2011,
Mr. Alapont has been a member of the board of directors of Mentor Graphics
Corporation, a NASDAQ-listed electronic design automation company.
Mr. Alapont began and developed his automotive career from 1974 to 1989 at Ford
Motor Company, and over the course of 15 years, starting at Ford of Spain,
progressed through different management and executive positions in quality,
testing and validation, manufacturing and purchasing positions at Ford of
Europe.
A native of Spain, Mr. Alapont earned degrees in industrial engineering from the
Technical School of Valencia in Spain and in philology from the University of
Valencia in Spain.
ANNEX B
ATTACHMENT 5
INFORMATION ABOUT NOMINEES
NAME: Daniel A. Ninivaggi
AGE: 47
BUSINESS Icahn Capital LP, 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
RESIDENCE 100 West 57th Street, Apt. 6R
ADDRESS: New York, NY 10019
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CITIZENSHIP: United States of America
Mr. Ninivaggi does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Ninivaggi has an
interest in the election of directors at the Annual Meeting indirectly through
certain options to purchase depositary units of Icahn Enterprises L.P.
Daniel A. Ninivaggi has served as President of Icahn Enterprises L.P. and its
general partner, Icahn Enterprises G.P. Inc., since April 5, 2010, and as its
Principal Executive Officer, or chief executive, since August 4, 2010. From 2003
until July 2009, Mr. Ninivaggi served in a variety of executive positions at
Lear Corporation, a global supplier of automotive seating and electrical power
management systems and components, including as General Counsel from 2003
through 2007, as Senior Vice President from 2004 until 2006, and most recently
as Executive Vice President and Chief Administrative Officer from 2006 to 2009.
Lear Corporation filed for bankruptcy in July 2009. Prior to joining Lear
Corporation, from 1998 to 2003, Mr. Ninivaggi was a partner with the law firm of
Winston & Strawn LLP, specializing in corporate finance, mergers and
acquisitions, and corporate governance. Mr. Ninivaggi also served as Of Counsel
to Winston & Strawn LLP from July 2009 to March 2010. From December 2009 to May
2011, Mr. Ninivaggi has also served as a director of CIT Group Inc., a bank
holding company. Mr. Ninivaggi also serves as a director of FederalMogul
Corporation, a supplier of automotive products, and XO Holdings, LLC, a
telecommunications company. Since December 2010, Mr. Ninivaggi has served as a
director of Motorola Mobility Holdings, Inc., a provider of mobile communication
devices, video and data delivery solutions. Since January 6, 2011, Mr. Ninivaggi
has also served as the Interim President and Interim Chief Executive Officer and
a director of Tropicana Entertainment Inc., a company that is primarily engaged
in the business of owning and operating casinos and resorts.
ANNEX B
ATTACHMENT 6
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Marc F. Gustafson
AGE: 59
BUSINESS 754 Bear Left
ADDRESS: Asheville, NC 28805
RESIDENCE 754 Bear Left
ADDRESS: Asheville, NC 28805
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CITIZENSHIP: United States of America
Mr. Gustafson has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex D. Mr. Gustafson does
not, and his associates do not, own, beneficially or of record, any shares of
capital stock of the Corporation.
Marc Gustafson founded Gustafson Consulting Group in 2008 in Asheville, North
Carolina. His firm specializes in management consulting for companies in the
transportation and related industries. Mr. Gustafson also provides litigation
support and expert testimony in cases involving the transportation industry.
Mr. Gustafson's transportation industry expertise includes the heavy truck
industry, which began in 1975, as the owner of Mack dealerships in Florida. He
owned and operated the dealerships for seventeen years. In 1991, he joined Mack
Trucks, Inc. as its Executive Vice President of Sales and Marketing. In that
position, he was responsible for all North and Latin American commercial
operations for Mack. In 1996, he joined Volvo Trucks North America as its
President and Chief Executive Officer. During his tenure at Volvo, he was
appointed Chairman of Volvo's global truck marketing and business development
committee, and was involved in Volvo's strategic efforts to acquire other
companies in the heavy truck industry, including his former employer Mack
Trucks, Inc., as well as Arrow Truck Sales, Inc. and Petro Truck Stops. In
2003, he ran Freightliner Corporation's American LaFrance subsidiary, which
builds fire emergency vehicles. Then in 2004, he joined Federal Signal
Corporation to run its fire emergency vehicle subsidiaries, E-One and Bronto
Skylift. He left Federal Signal in 2007 and, a year later, founded Gustafson
Consulting Group.
Mr. Gustafson is also a former board member of the American Trucking
Association, Volvo Cars, NA and Habitat for Humanity, Charleston. He graduated
from Berry College with a BS degree in 1974.
ANNEX C
The written consent of each Nominee to, among other things, being named,
including as a nominee for election as a director of the Corporation, in the
applicable proxy statement and to serve as a director if so elected is attached
to this Annex C. If the Corporation requests original signed statements of
consents, the Record Holder will provide them.
ANNEX C
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of Oshkosh Corporation (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to Stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: November 3, 2011
/s/ A.B. Krongard
------------------
Name: A.B. Krongard
ANNEX C
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of Oshkosh Corporation (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to Stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: November 3, 2011
/s/ Vincent J. Intrieri
-------------------------
Name: Vincent J. Intrieri
ANNEX C
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of Oshkosh Corporation (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to Stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: November 3, 2011
/s/ Samuel Merksamer
---------------------
Name: Samuel Merksamer
ANNEX C
ATTACHMENT 4
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of Oshkosh Corporation (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to Stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: November 3, 2011
/s/ Jose Maria Alapont
------------------------
Name: Jose Maria Alapont
ANNEX C
ATTACHMENT 5
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of Oshkosh Corporation (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to Stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: November 3, 2011
/s/ Daniel A. Ninivaggi
-------------------------
Name: Daniel A. Ninivaggi
ANNEX C
ATTACHMENT 6
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of Oshkosh Corporation (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to Stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: November 3, 2011
/s/ Marc F. Gustafson
-----------------------
Name: Marc F. Gustafson
ANNEX D
Attached to this Annex D is the form of agreement to be entered into by the
Nominees (other than Messrs. Intrieri, Merksamer, and Ninivaggi) and an
affiliate of the Record Holder pursuant to which such affiliate has agreed to
pay certain fees to such Nominees (other than Mr. Alapont) and to indemnify such
Nominees with respect to certain costs incurred by such Nominees in connection
with the proxy contest relating to the Annual Meeting.
ICAHN CAPITAL LP
November 3, 2011
To the undersigned potential nominee:
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 Oshkosh
Corporation ("Oshkosh") in connection with a proxy contest with management of
Oshkosh in respect of the election of directors of Oshkosh at the 2012 Annual
Meeting of Stockholders of Oshkosh (the "Annual Meeting"), expected to be held
on or about February 2012, or a special meeting of stockholders of Oshkosh
called for a similar purpose (the "Proxy Contest").
Icahn Capital LP ("Icahn") agrees 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, or an affiliate thereof, intends to nominate you for
election at the Annual Meeting, you will be entitled to be paid $25,000 by Icahn
unless you are elected to serve as a director of Oshkosh at the Annual Meeting
or a special meeting of stockholders of Oshkosh called for a similar purpose or
in connection with a settlement of the Proxy Contest by Icahn and Oshkosh, 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 Oshkosh, or (iii) the
withdrawal of the Proxy Contest by Icahn (4).
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 Oshkosh and for use
in creating the proxy material to be sent to shareholders of Oshkosh 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 Mark
DiPaolo, Assistant General Counsel, Icahn Enterprises LP, 767 Fifth Avenue,
Suite 4700, New York, NY 10153, Tel: (212) 702-4361, Fax: (212) 688-1158, Email:
mdipaolo@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 Oshkosh informing Oshkosh that you consent to being
nominated by Icahn, or an affiliate thereof, for election as a director of
Oshkosh and, if elected, consent to serving as a director of Oshkosh. You also
will make a statement in the attached instrument that if elected, you intend to
tender a resignation effective upon your failure to receive the required vote
for re-election at the next meeting at which you would face re-election and upon
acceptance of such resignation by the Board of Directors of the Company, in
accordance with the Company's Amended and Restated Bylaws. Upon being notified
that we have chosen you, we may forward that instrument and your completed
questionnaire (or summaries thereof) to Oshkosh. Upon being notified that we
have chosen you, we may forward that instrument and your completed questionnaire
(or summaries thereof) to Oshkosh.
_________________________
(4) This paragraph is not contained in Mr. Alapont's 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 Oshkosh 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 Oshkosh' Board of Directors or for any
actions taken by you as a director of Oshkosh, 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 Oshkosh 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
Oshkosh 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
Oshkosh.
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 CAPITAL LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as
of the date first above written:
__________________________
Name: