SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No.)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to 240.14a-12
FOREST LABORATORIES, INC.
(Name of Registrant as Specified In Its Charter)
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROF. LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
MR. CARL C. ICAHN
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
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:
[PRELIMINARY COPIES, SUBJECT TO COMPLETION]
2011 ANNUAL MEETING OF STOCKHOLDERS
OF
FOREST LABORATORIES, INC.
___________________
PROXY STATEMENT
OF
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
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROFESSOR LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
___________________
To Our Fellow Forest Laboratories Stockholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to Stockholders ("Stockholders") of Forest Laboratories, Inc., 909
Third Avenue, New York, New York 10022 ("Forest Laboratories," the "Corporation"
or the "Company") in connection with the solicitation of proxies by Carl C.
Icahn and the Participants (as hereinafter defined), to be used at the 2011
Annual Meeting (the "Annual Meeting") of Stockholders of Forest Laboratories
which is scheduled to be held at [ ], on [ ], at [ ], and at any adjournments,
postponements or continuations thereof. This Proxy Statement and the GOLD proxy
card are first being furnished to Stockholders on or about [ ].
At the Annual Meeting, the Participants will seek to elect to the Board of
Directors ("Board") of Forest Laboratories the following persons (each a
"Nominee" and collectively, the "Nominees"):
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROFESSOR LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
The Icahn Parties (as hereinafter defined) believe that the Nominees have
impressive qualifications and that their experience, including on other pharma
boards, would be extremely beneficial to Forest Laboratories and, therefore, its
stockholders. Dr. Denner has an accomplished record in improving the operations,
research and development of biotech companies. Dr. Mulligan is an
internationally known expert in genetics and gene therapy. Professor Bebchuk is
a Professor of Law, Economics, and Finance and Director of the Program on
Corporate Governance at Harvard Law School. He is one of the nation's leading
corporate governance experts. Dr. Ende is a successful analyst and consultant
with extensive financial expertise and a strong understanding of the
pharmaceutical industry. The Icahn Parties believe that the Nominees' knowledge
of science, medicine, corporate governance, finance and business will
significantly improve the science, corporate governance and business expertise
of the Board. The Icahn Parties also believe that each Nominee is a strong
stockholder-oriented individual who will help represent the best interests of
the Corporation's stockholders.
The Icahn Parties believe that recent events concerning Forest
Laboratories, together with the declining performance of its shares over the
past 7 years and the anticipated decline in Forest Laboratories' results of
operations due to the loss of patent protection on Lexapro, its most significant
drug, also warrant a change in the composition of the Board. Additionally, in
2010, the Company disclosed that it pled guilty to a felony and misdemeanor
charges and paid in excess of $300 million to settle claims brought against it
by the US Department of Justice and US Attorney's Office. The Company stated
that these matters were resolved. However, this proved not to be the case. On
April 13, 2011, the Company publicly disclosed that on April 12, 2011, Mr.
Howard Solomon, the longtime Chairman and CEO of the Company, was notified by
the Office of the Inspector General, Department of Health and Human Services
(the "OIG-HHS") that the OIG-HHS was commencing an action to exclude him from
participating in federal healthcare programs based on the matters that the
Company previously disclosed were settled. The Company stated that should the
OIG-HHS ultimately determine that Mr. Solomon should be excluded, Mr. Solomon
would be required to step down as an officer of the Company unless his exclusion
is enjoined by legal proceedings. The Company also disclosed on that same day
(just one day after receiving the notification from the OIG-HHS) that Mr.
Solomon plans to commence litigation to prevent any such exclusion and that the
Company will support such litigation by Mr. Solomon. The Company indicated that
it believes that these actions by the OIG-HHS are unprecedented.
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 we may only solicit proxies for our Nominees, which
would result in limiting the ability of Stockholders that would like to vote for
our Nominees to fully exercise their voting rights to vote for up to a full
complement of nine directors. Alternatively, we may solicit proxies in support
of our Nominees and also seek authority to vote for all of the Forest
Laboratories nominees other than those Forest Laboratories nominees we specify.
This would enable a Stockholder who desires to vote for up to a full complement
of nine director nominees to use the GOLD proxy card to vote for our Nominees as
well as the Forest Laboratories nominees for whom we are seeking authority to
vote other than those nominees as to which the Stockholder specifically
withholds our authority to vote for. We have determined to nominate a slate of
four Nominees, Dr. Denner, Dr. Mulligan, Professor Bebchuk and Dr. Ende and are
seeking authority to vote for up to all of the Forest Laboratories nominees
other than [ ]. As a result, should a Stockholder so authorize us, on the GOLD
proxy card, we would cast votes for our four Nominees and up to five Forest
Laboratories nominees. None of the Forest Laboratories nominees for whom we
seek authority to vote have agreed to serve with any of our Nominees, if
elected.
THE PARTICIPANTS URGE YOU TO VOTE THE GOLD PROXY CARD FOR DR. ALEXANDER J.
DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK AND DR. ERIC J. ENDE
AS DIRECTORS.
The Nominees and each of the other Participants have no interest in Forest
Laboratories other than through the beneficial ownership (if any) of shares of
Common Stock, par value $0.10 per share, of Forest Laboratories (the "Common
Stock") or other securities (if any) of Forest Laboratories, except as disclosed
herein, including the Annexes hereto, and in the case of each of Dr. Mulligan,
Professor Bebchuk and Dr. Ende, pursuant to an agreement in which certain
affiliates of Carl C. Icahn have agreed to pay each of Dr. Mulligan, Professor
Bebchuk and Dr. Ende $25,000 and to indemnify such Nominee with respect to
certain costs incurred by each such Nominee in connection with the proxy contest
relating to the Annual Meeting (the "Nominee Agreement") and in the case of Dr.
Denner, through his profit interests in the shares of Common Stock held by the
Icahn Parties and their affiliates as described herein.
DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK
AND DR. ERIC J. ENDE ARE COMMITTED TO ACTING IN THE BEST INTEREST OF ALL
STOCKHOLDERS OF FOREST LABORATORIES. THE PARTICIPANTS URGE YOU TO VOTE YOUR GOLD
PROXY CARD FOR DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN
A. BEBCHUK AND DR. ERIC J. ENDE.
IMPORTANT
According to Forest Laboratories' 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 Forest Laboratories' Common Stock
at a meeting at which a quorum is present in person or represented by proxy. As
a result, your vote is extremely important. We urge you to mark, sign, date, and
return the enclosed GOLD proxy card to vote FOR the election of each Nominee.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY FOREST LABORATORIES.
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) 697-6975
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/FRX.
Only holders of record of Forest Laboratories' Common Stock as of the close
of business on [ ] (the "Record Date") are entitled to notice of, and to attend
and to vote at, the Annual Meeting and any adjournments or postponements
thereof. According to the preliminary proxy statement of Forest Laboratories
filed with the Securities and Exchange Commission ("Forest Laboratories's Proxy
Statement"), as of the Record Date, there were outstanding [ ] shares of Common
Stock. Stockholders of record at the close of business on the Record Date will
be entitled to one vote at the Annual Meeting for each share of Common Stock of
Forest Laboratories held on the Record Date.
As of the Record Date, the Participants and their affiliates beneficially
owned an aggregate of [ ] shares of Common Stock, representing approximately [ ]
of the outstanding shares of Common Stock. The Participants and their affiliates
intend to vote such shares of Common Stock FOR the election of the Nominees.
VOTE FOR THE NOMINEES BY USING THE ENCLOSED GOLD PROXY TO VOTE TODAY - BY
TELEPHONE, BY INTERNET, OR BY MARKING, SIGNING, DATING AND RETURNING THE GOLD
PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are Dr. Alexander J. Denner, Dr. Richard
Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende), the participants in
the solicitation of proxies (the "Participants") from Stockholders of Forest
Laboratories include the following: Carl C. Icahn, a citizen of the United
States, High River Limited Partnership, a Delaware limited partnership
("HighRiver"), Hopper Investments LLC, a Delaware limited liability company
("Hopper"), Barberry Corp., a Delaware corporation ("Barberry"), 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 L.P., a Cayman Islands limited partnership ("Icahn Master II"),
Icahn Partners Master Fund III L.P., 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").
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High
River (collectively, the "Icahn Parties"), are entities controlled by Mr. Carl
C. Icahn. Dr. Denner is an employee and/or officer and/or director of the Icahn
Parties and various other entities controlled by Mr. Icahn, who will participate
in soliciting proxies from Forest Laboratories Stockholders. Except as described
herein, Dr. Denner does not own beneficially any interest in securities of
Forest Laboratories and Dr. Denner will not receive any special compensation in
connection with such solicitation. In connection with his employment by Mr.
Icahn and his affiliated companies, Dr. Denner, among other employees, had a
participatory interest in, among other things, the profits and fees derived by
Mr. Icahn and/or his affiliates from Icahn Partners', Icahn Master's, Icahn
Master II's and Icahn Master III's ownership of the shares of Common Stock. In
the aggregate, Dr. Denner's profit interests and capital accounts in Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III entitled him to
less than 2% of the profits generated by such entities' ownership of the shares
of Common Stock. The foregoing with respect to the shares of Common Stock has
been superseded by the following as of June 10, 2011: Dr. Denner has a
participatory interest in the profits attributable to the shares of Common Stock
beneficially owned by the Icahn Parties and their affiliates equal to 5% of an
amount equal to (x) such profits minus (y) an amount equal to a return of 8% per
annum, compounded annually, on the Icahn Parties' and their affiliates'
investment in the shares of Common Stock.
Annex A attached hereto sets forth, as to the Nominees and the other
Participants, all transactions in securities of Forest Laboratories effected
during the past two years and their beneficial ownership of securities of Forest
Laboratories.
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 Forest
Laboratories, 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 Forest Laboratories or its affiliates or (B) any future
transactions to which Forest Laboratories or any of its affiliates will or may
be a party.
PROPOSAL 1 -- ELECTION OF DIRECTORS
Article I, Section 6, of Forest Laboratories' Amended and Restated Bylaws
provides that nominations of persons for election to the Board of Directors of
the Corporation may be made " by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
Bylaw, who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Bylaw." On June 10, 2011, High River, a record
holder of Common Stock, delivered timely notice in accordance with the
foregoing, notifying Forest Laboratories that High River intends to nominate and
will seek to elect at the Annual Meeting - Dr. Alexander J. Denner, Dr. Richard
Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende as members of the
board of directors of Forest Laboratories. Each Nominee, if elected, would serve
a one-year term and hold office until the 2012 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 and the Annexes
attached hereto.
According to Forest Laboratories' Proxy Statement, the Board of Forest
Laboratories intends to nominate nine candidates for election as directors at
the Annual Meeting. This Proxy Statement is soliciting proxies to elect Dr.
Alexander J. Denner, Dr. Richard Mulligan, Professor Lucian A. Bebchuk and Dr.
Eric J. Ende, and to enable Stockholders to vote for the Forest Laboratories
nominees other than [ ]. Therefore, should a Stockholder so authorize us, we
will cast votes for our four Nominees and up to five Forest Laboratories
nominees. None of such Forest Laboratories nominees for whom we seek authority
to vote have agreed to serve with any of our Nominees, if elected.
If elected, the Nominees will be a minority of the directors and will not
alone be able to adopt resolutions. However, the Nominees expect to be able to
actively engage other Board members in full discussion of the issues facing the
Company and resolve them together. By utilizing their respective experiences and
working constructively with Board members, the Nominees believe they can effect
positive change at the Company.
Mr. Icahn has an interest in the election of directors at the Annual
Meeting indirectly through the beneficial ownership of securities, as further
described in Annex A. Dr. Richard Mulligan, Professor Lucian A. Bebchuk and Dr.
Eric J. Ende are each party to a Nominee Agreement, substantially in the form
attached hereto as Annex B, pursuant to which Icahn Capital has agreed to pay
certain fees to each such Nominee and to indemnify each such Nominee with
respect to certain costs incurred by each such Nominee in connection with the
proxy contest relating to the Annual Meeting. 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.
Richard Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende 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.
Richard Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende have an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement. Dr. Denner has an interest in the election of directors at
the Annual Meeting indirectly through his profit interests in the shares of
Common Stock held by the Icahn Parties as follows: Dr. Denner has a
participatory interest in the profits attributable to the shares of Common Stock
beneficially owned by the Icahn Parties and their affiliates equal to 5% of an
amount equal to (x) such profits minus (y) an amount equal to a return of 8% per
annum, compounded annually, on the Icahn Parties' and their affiliates'
investment in the shares of Common Stock.
The Nominees would not be barred from being considered independent under
the independence requirements of the New York Stock Exchange and the
independence standards applicable to Forest Laboratories under paragraph (a)(1)
of Item 407 of Regulation S-K under the Securities Exchange Act of 1934, as
amended.
DR. ALEXANDER J. DENNER, age 41
Dr. Denner's principal occupation is serving as Managing Director of
entities affiliated with Carl C. Icahn, including Icahn Partners, Icahn Master,
Icahn Master II and Icahn Master III (collectively, the "Funds"). The Funds are
private investment funds. Dr. Denner has served in this position since August
2006. From April 2005 to May 2006, Dr. Denner served as a portfolio manager
specializing in healthcare investments for Viking Global Investors. Previously,
he served in a variety of roles at Morgan Stanley, beginning in 1996, including
as portfolio manager of healthcare and biotechnology mutual funds. Dr. Denner
was the chairman of the Executive Committee of the Board of Directors of ImClone
Systems Incorporated, a publicly traded biopharmaceutical company, and a
director of ImClone Systems Incorporated from April 2006 until the company was
purchased in December 2008. He served on the Board of Adventrx Pharmaceuticals
Inc., a publicly traded biopharmaceutical company from October 2006 to October
2009. In addition, Dr. Denner has served as a director of Biogen Idec
Pharmaceuticals, a publicly traded biopharmaceutical company from June, 2009
until the present, as a director of Amylin Pharmaceuticals, Inc., a publicly
traded biopharmaceutical company from June 2009 until the present, and as a
director of Enzon Pharmaceuticals, a publicly traded biopharmaceutical company
from May 2009 until the present, and as Chairman of the Board of Directors of
Enzon Pharmaceuticals from July, 2009 until the present. 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. Except as described herein, Dr.
Denner does not, and his associates do not, own, beneficially or of record, any
shares of capital stock of the Corporation. The business address of Dr. Denner
is c/o Icahn Associates Corp, 767 Fifth Avenue, Suite 4700, New York, NY 10153.
Based upon Dr. Denner's experience of overseeing the operations, research
and development of biopharmaceutical companies; service on boards of
biopharmaceutical companies; financial background, including with respect to
pharma companies; and education, the Icahn Parties believe that Dr. Denner has
the requisite set of skills to serve as a Board member of Forest Laboratories.
DR. RICHARD MULLIGAN, age 56
Dr. Mulligan's principal occupation is serving as the Mallinckrodt
Professor of Genetics at Harvard Medical School, and Director of the Harvard
Gene Therapy Initiative. Professor Mulligan received his B.S. degree from the
Massachusetts Institute of Technology, and his Ph.D. from the Department of
Biochemistry at Stanford University School of Medicine. After receiving
postdoctoral training at the Center for Cancer Research at MIT, Professor
Mulligan joined the MIT faculty and subsequently was appointed Professor of
Molecular Biology and Member of the Whitehead Institute for Biomedical Research
before moving to Children's Hospital and Harvard in 1996. His honors include the
MacArthur Foundation Prize, the Rhodes Memorial Award of the American
Association for Cancer Research, the ASMB-Amgen Award, and the Nagai Foundation
International Prize.
Dr. Mulligan served as a director of ImClone System Incorporated, a
publicly traded biopharmaceutical company, from September 2006 until November
2008, and as a member of Scientific Advisory Board and Executive Committee. In
addition, Dr. Mulligan has served as a director of Biogen Idec Inc., a publicly
traded biopharmaceutical company from June 2009 until the present, as a director
of Enzon Pharmaceuticals, a publicly traded biopharmaceutical company from May
2009 until the present, and as a director of Cellectis SA, a biotechnology
company which specializes in genome engineering, since 2007. He has also served
on the National Institutes of Health's Recombinant DNA Advisory Committee and on
the U.S. Food and Drug Administration Biological Response Modifiers Advisory
Committee. Dr. Mulligan does not, and his associates do not, own, beneficially
or of record, any shares of capital stock of the Corporation. Dr. Mulligan's
business address is Harvard Institutes of Medicine Rm 407, 4 Blackfan Circle,
Boston, Massachusetts 02115.
Based upon Dr. Mulligan's expertise in genetics and gene therapy;
experience in overseeing the operations, research and development of
biopharmaceutical companies; service on boards of biotechnology and/or
biopharmaceutical companies; and his education, the Icahn Parties believe that
Dr. Mulligan has the requisite set of skills to serve as a Board member of
Forest Laboratories.
PROF. LUCIAN A. BEBCHUK, age 55
Professor Bebchuk's principal occupation is serving as the William J.
Friedman and Alicia Townsend Friedman Professor of Law, Economics, and Finance
and Director of the Program on Corporate Governance at Harvard Law School.
Professor Bebchuk is also a Research Associate of the National Bureau of
Economic Research and Inaugural Fellow of the European Corporate Governance
Network. Trained in both law and economics, Professor Bebchuk holds an LL.M. and
S.J.D. from Harvard Law School and an M.A. and a Ph.D. in Economics from the
Harvard Economics Department. His research focuses on corporate governance, law
and finance, and law and economics. Upon electing him to membership in 2000, the
American Academy of Arts and Sciences cited him as "[o]ne of the nation's
leading scholars of law and economics," who "has made major contribution to the
study of corporate control, governance, and insolvency." The author of more than
one hundred research papers, Professor Bebchuk's work has appeared in the top
academic journals in law, in economics, and in finance. His widely acclaimed
book, Pay without Performance: the Unfulfilled Promise of Executive
Compensation, co-authored with Jesse Fried, was published in 2004. Professor
Bebchuk has been a frequent contributor to policy-making, practice, and public
debate in the fields of corporate governance and financial regulation. He has
appeared in hearings and roundtables before the Senate Finance Committee, the
House of Representatives Committee of Financial Services, and the SEC; has
advised publicly traded firms, governmental authorities both in and outside the
U.S., and law firms; has authored numerous op-ed pieces, including in the Wall
Street Journal, the New York Times, and the Financial Times; and serves on the
board of directors of OJSC MMC Norilsk Nickel, the world's largest producer of
nickel and palladium. He was included in the list of "100 most influential
players in corporate governance" of Directorship, the "100 most influential
people in finance" of Treasury & Risk Management, and the list of top-10
"governance stars" of Global Proxy Watch. Professor Bebchuk served as President
of the American Law and Economics Association and Chair of the Business
Association Section of the American Association of Law Teachers. He is a
Vice-President of the Western Economics Association International and the
founding Director of the SSRN Corporate Governance Network. Professor Bebchuk
does not, and his associates do not, own, beneficially or of record, any shares
of capital stock of the Corporation. Professor Bebchuk's business address is c/o
Harvard Law School, 1545 Massachusetts Avenue, Cambridge, Massachusetts 02138.
Based upon Professor Bebchuk's expertise in corporate governance and
finance; and his education, the Icahn Parties believe that Professor Bebchuk has
the requisite set of skills to serve as a Board member of Forest Laboratories.
DR. ERIC J. ENDE, age 43
Dr. Ende's principal occupation is serving as President of Ende Consulting
Group, which is focused on biotechnology industry consulting, since 2009. Since
2008, Dr. Ende has also served as a Managing Partner of Silverback Group, which
is focused on identifying, evaluating and participating in various types of
investment opportunities, including venture capital, real estate and financings.
From 2002 through 2008, Dr. Ende was the senior biotechnology analyst at Merrill
Lynch. From 2000 to 2002, he was the senior biotechnology analyst at Banc of
America Securities. From 1997 to 2000, he was a biotechnology analyst at Lehman
Brothers. During Dr. Ende's career as a biotechnology analyst, he was named to
Institutional Investor's AllAmerica Equity Research Team six times as well as to
The Greenwich Survey list of top analysts. He was also named Top Stock Picker by
The Street.com and Best Earnings Estimator by Forbes.com. Dr. Ende served as a
director of Genzyme Corporation from 2010 until it was acquired by
Sanofi-Aventis in 2011. Dr. Ende received an M.B.A. in Finance & Accounting from
New York University's Stern Business School in 1997, an M.D. from Mount Sinai
School of Medicine in 1994, and a B.S. in Biology and Psychology from Emory
University in 1990. Dr. Ende does not, and his associates do not, own,
beneficially or of record, any shares of capital stock of the Corporation. Dr.
Ende's business address is 6231 PGA Blvd, STE 104-161, Palm Beach Gardens, FL
33418.
Based upon Dr. Ende's extensive financial expertise and a strong
understanding of the pharmaceutical industry, as well as his service on another
board; and his education, the Icahn Parties believe that Dr. Ende has the
requisite set of skills to serve as a Board member of Forest Laboratories.
Drs. Denner and Mulligan currently serve on the Board of Directors of
Biogen Idec Inc. ("Biogen") and Enzon Pharmaceuticals, Inc. ("Enzon"). Drs.
Denner and Mulligan were elected to the Board of Directors of Biogen Idec Inc.
at the 2009 Annual Meeting of Stockholders following their nomination by
entities affiliated with Mr. Icahn. In January 2009, representatives of Mr.
Icahn and his affiliated entities suggested Drs. Denner and Mulligan as
potential directors to the Board of Directors of Enzon. Drs. Denner and Mulligan
were subsequently nominated on Enzon's board slate of directors and elected at
the 2009 Annual Meeting of Stockholders.
Drs. Denner, Mulligan and Mr. Icahn served together on the Board of
Directors of ImClone Systems Incorporated ("ImClone"). Following discussions in
April 2006 between ImClone and Mr. Icahn, a then stockholder of ImClone, Dr.
Denner, who was not then employed by affiliated entities of Mr. Icahn, was
appointed to the board of ImClone. In August 2006, representatives of ImClone
offered to nominate on management's slate of directors, Mr. Icahn, Dr. Denner,
then an employee of entities affiliated with Mr. Icahn, and two persons
recommended to ImClone by Mr. Icahn, including Dr. Richard Mulligan, and all of
such nominees were subsequently elected at the 2006 Annual Meeting of
Stockholders.
Dr. Ende provided consulting services to Mr. Icahn and certain affiliated
entities in connection with the proxy contests conducted by Mr. Icahn and such
affiliates in respect of Genzyme Corporation, Amylin Pharmaceuticals, Inc. and
Biogen Idec Inc. In 2010, Dr. Ende was nominated to the board of Genzyme
Corporation at the suggestion of Mr. Icahn.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF DR. ALEXANDER J. DENNER,
DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK AND DR. ERIC J. ENDE 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 DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A.
BEBCHUK AND DR. ERIC J. ENDE AND THE FOREST LABORATORIES NOMINEES OTHER THAN [
].
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Forest Laboratories' Proxy Statement, Forest Laboratories is
soliciting proxies with respect to three other proposals. Please refer to Forest
Laboratories' 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 [ ] PROPOSALS [ ]
LISTED BELOW.
PROPOSAL 2 - ADVISORY VOTE ON EXECUTIVE COMPENSATION (SAY-ON-PAY VOTE)
According to the Company's 2011 Preliminary Proxy Statement, the Company
will also solicit proxies with respect to a proposal for the Stockholders to
approve, on an advisory basis, the compensation of the Named Executive Officers,
as disclosed in the Company's Proxy Statement for the 2011 Annual Meeting of
Stockholders pursuant to the compensation disclosure rules of the Securities and
Exchange Commission, including the Compensation Discussion and Analysis, the
2011 Summary Compensation Table and the tabular disclosure regarding such
compensation and the accompanying narrative disclosure. Please refer to the
Company's 2011 Preliminary Proxy Statement for a discussion of such proposal.
The Participants intend to vote, and recommend that you vote, [ ] this
proposal.
PROPOSAL 3 - ADVISORY VOTE ON THE FREQUENCY OF AN ADVISORY VOTE ON THE
COMPENSATION OF THE COMPANY'S NAMED EXECUTIVE OFFICERS (SAY-WHEN-ON-PAY VOTE)
According to the Company's 2011 Preliminary Proxy Statement, the Company
will also solicit proxies with respect to a proposal for Stockholders to express
a preference as to how frequently future advisory votes on executive
compensation should take place - one, two or three years. Please refer to the
Company's 2011 Preliminary Proxy Statement for a discussion of such proposal.
The Participants intend to vote, and recommend that you vote for "1 year" as the
frequency for future advisory votes on the compensation of the Company's named
executive officers.
PROPOSAL 4 -- RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
According to the Company's 2011 Preliminary Proxy Statement, the Company
will also solicit proxies with respect to a proposal for Stockholders to ratify
the selection of BDO USA, LLP to audit the financial statement of the Company
for the fiscal year ending March 31, 2012. Please refer to the Company's 2011
Preliminary Proxy Statement for a discussion of such proposal. The Participants
intend to vote, and recommend that you vote, [ ] this proposal.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be
presented at the Annual Meeting. If any other matters should properly come
before the Annual Meeting, it is intended that the persons named on the enclosed
GOLD proxy card will vote that proxy on such other matters in accordance with
their judgment.
VOTING PROCEDURES
According to Forest Laboratories' Proxy Statement, the Bylaws and
applicable law, holders of shares of Forest Laboratories' 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 Forest Laboratories' Proxy Statement, the Bylaws and
applicable law, a nominee for director will be elected to the Company's Board of
Directors if the votes cast for such nominee's election exceed the votes cast
against such nominee's election; provided, however, that directors will be
elected by a plurality of the votes cast at any meeting of stockholders for
which (i) the Secretary of the Company receives a notice that a stockholder has
nominated a person for election to the Board of Directors in compliance with the
Company's Bylaws and (ii) such nomination has not been withdrawn by such
stockholder on or before the tenth day before the Company first mails its notice
of meeting for such meeting to the Stockholders. 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 nonvote or otherwise) have no impact in the election of directors.
A quorum must be present, in person or by proxy, in order for the Company
to hold the Annual Meeting. 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" and broker non-votes (as described below) 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 Stockholders have approved a
matter, but they are counted as present for the purpose of determining a quorum
at the Annual Meeting.
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 the election of
directors. 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 Forest Laboratories' Proxy Statement, the Bylaws and
applicable law, the Stockholder vote on Proposal 2 - ADVISORY VOTE ON EXECUTIVE
COMPENSATION (SAY-ON-PAY VOTE) - is advisory and will not be binding on the
Board. However, in order to be approved on an advisory basis, this proposal must
receive the "FOR" vote of a majority of the shares present in person or by proxy
and entitled to vote on the matter. Abstentions will have the same effect as a
vote against the proposal. Broker nonvotes will have no effect on this proposal
as brokers are not entitled to vote on such proposals in the absence of voting
instructions from the beneficial owner.
According to Forest Laboratories' Proxy Statement, the Bylaws and
applicable law, the Stockholder vote on Proposal 3 - ADVISORY VOTE ON THE
FREQUENCY OF AN ADVISORY VOTE ON THE COMPENSATION OF THE COMPANY'S NAMED
EXECUTIVE OFFICERS (SAY-WHEN-ON-PAY VOTE) - is advisory and will not be binding
on the Board. Abstentions and broker nonvotes will not be counted as expressing
any preference. If none of the frequency alternatives (one year, two years or
three years) receives a majority vote, the Company has disclosed that it will
consider the frequency that receives the highest number of votes by stockholders
to be the frequency that has been selected by stockholders. However, the Company
disclosed that because this vote is advisory and not binding on the Company or
its Board in any way, its Board may decide that it is in the Company's and its
stockholders' best interests to hold an advisory vote on executive compensation
more or less frequently than the alternative selected by the Stockholders.
According to Forest Laboratories' Proxy Statement, the Bylaws and
applicable law, the approval of the ratification of the selection of the
Independent Registered Accounting Firm require the affirmative vote of a
majority of the shares present in person or by proxy and entitled to vote on the
matter. Abstentions will have the same effect as a vote against the proposal.
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. RICHARD
MULLIGAN FOR DIRECTOR; (III) FOR PROFESSOR LUCIAN A. BEBCHUK FOR DIRECTOR (IV)
FOR DR. ERIC J. ENDE FOR DIRECTOR;(V) FOR THE PERSONS WHO HAVE BEEN NOMINATED BY
FOREST LABORATORIES TO SERVE AS DIRECTORS, OTHER THAN [ ]; (VI) [ ] THE ADVISORY
VOTE ON EXECUTIVE COMPENSATION (SAY-ON-PAY VOTE); (VII) FOR "1 YEAR" ON ADVISORY
VOTE ON THE FREQUENCY OF AN ADVISORY VOTE ON THE COMPENSATION OF THE COMPANY'S
NAMED EXECUTIVE OFFICERS (SAY-WHEN-ON-PAY VOTE); (VIII) [ ]THE RATIFICATION OF
THE SELECTION OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM; AND (IX) IN
THE PROXY HOLDERS' DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE
THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
STOCKHOLDERS CALL TOLL-FREE: (800) 697-6975
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:
- submitting a properly executed, subsequently dated GOLD proxy card that
will revoke all prior proxy cards, including any white proxy cards which
you may have submitted to Forest Laboratories;
- 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);
- 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
- 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 Forest Laboratories.
Although a revocation is effective if delivered to Forest Laboratories, the
Icahn Parties request that either the original or a copy of any revocation be
mailed to the Icahn Parties c/o D.F. King & Co., Inc., 48 Wall Street, New York,
NY 10005, so that the Icahn Parties will be aware of all revocations.
IF YOU PREVIOUSLY SIGNED AND RETURNED A WHITE PROXY CARD TO FOREST
LABORATORIES, 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 will be made by Mr. Icahn, Dr. Denner, Dr.
Mulligan, Prof. Bebchuk and Dr. Ende.
Pursuant to an Agreement, dated [ ], 2011, Icahn Capital has retained D.F.
King & Co., Inc. ("D.F. King") to conduct the solicitation, for which D.F. King
is to receive a fee of up to [ ], plus expenses and a success fee of up to [].
Icahn Capital has 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 100 persons to solicit proxies from Forest Laboratories'
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 will pay all costs associated with this solicitation. 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 Forest Laboratories.
ADDITIONAL INFORMATION
Certain information regarding the securities of Forest Laboratories held by
Forest Laboratories' directors, management and 5% Stockholders is contained in
Forest Laboratories' Proxy Statement. Information concerning the date by which
proposals of security holders intended to be presented at the next annual
meeting of Stockholders of Forest Laboratories must be received by Forest
Laboratories for inclusion in Forest Laboratories' Proxy Statement and form of
proxy for that meeting is also contained in Forest Laboratories' Proxy
Statement. This information is expected to be contained in Forest Laboratories'
public filings. The Participants take no responsibility for the accuracy or
completeness of such information contained in Forest Laboratories' public
filings.
Date: [ ]
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROF. LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
MR. CARL C. ICAHN
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
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
SECURITY OWNERSHIP OF THE PARTICIPANTS
(1) TITLE OF (2) NAME OF (3) AMOUNT OF (4) PERCENT OF
CLASS BENEFICIAL BENEFICIAL CLASS (2)
OWNER (1) OWNERSHIP
-------- ---------- ---------- ----------
Common Stock, par High River 3,979,168 1.39%
value $0.10 per
share ("Shares")
Shares Icahn Partners 6,095,186 2.13%
Shares Icahn Master 6,582,778 2.30%
Shares Icahn Master II 2,256,777 0.79%
Shares Icahn Master III 981,932 0.34%
_________________________
(1) Please note that each stockholder listed in this table is, as of June 27,
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."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the 286,162,661 Shares stated to be outstanding as of
May 25, 2011 by the Corporation in the Corporation's Form 10K filed for the
fiscal year ended March 31, 2011.
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 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. 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, 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, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue,
47th Floor, New York, NY 10153. The principal business address of Icahn Partners
is 767 Fifth Avenue, 47th Floor, New York, NY 10153. The principal business
address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT, 87 Mary
Street, George Town, Grand Cayman, Cayman Islands. The principal business
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 principal
business 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
principal business address of High River is White Plains Plaza, 445 Hamilton
Avenue, Suite 1210, White Plains, New York 10601.
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. Each of Icahn Master, Icahn
Master II, Icahn Master III, Icahn Partners and High River are primarily engaged
in the business of investing in securities.
The Icahn Parties and Carl C. Icahn may be deemed to beneficially own, in
the aggregate, 19,895,841 Shares, representing approximately 6.95% of the
Corporation's outstanding Shares (based upon the 286,162,661 Shares stated to be
outstanding as of May 25, 2011 by the Corporation in the Corporation's Form 10-K
filed for the fiscal year ended March 31, 2011).
High River has sole voting power and/or sole dispositive power with regard
to 3,979,168 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 6,095,186
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 6,582,778 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 2,256,777 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 981,932
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 Each of Hopper, Barberry and Mr. Icahn, by virtue of their
relationships to High River, may be deemed to indirectly beneficially own the
3,979,168 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 6,095,186 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 9,821,487 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
Without acknowledging the following disclosure is required, on January 5,
2001, Reliance Group Holdings, Inc. ("Reliance") commenced an action in the
United States District Court for the Southern District of New York against Carl
C. Icahn, Icahn Associates Corp. and High River alleging that High River's
tender offer for Reliance 9% senior notes violated Section 14(e) of the Exchange
Act. Reliance sought a temporary restraining order and preliminary and permanent
injunctive relief to prevent defendants from purchasing the notes. The Court
initially imposed a temporary restraining order. Defendants then supplemented
the tender offer disclosures. The Court conducted a hearing on the disclosures
and other matters raised by Reliance. It then denied plaintiff's motion for a
preliminary injunction and ordered dissolution of its temporary restraining
order following dissemination of the supplement. Reliance took an immediate
appeal to the United States Court of Appeals for the Second Circuit and sought a
stay to restrain defendants from purchasing notes during the pendency of the
appeal. On January 30, 2001, the Court of Appeals denied plaintiff's stay
application. On January 30, Reliance also sought a further temporary restraining
order from the District Court. The Court considered the matter and reimposed its
original restraint until noon the next day, at which time the restraint was
dissolved. The appeal was argued on March 9 and denied on March 22, 2001.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of call options, by the Participants and 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/CALL OPTIONS EXERCISED
---- ---- ---------------------------------------
High River 8/21/2009 80,000
High River 8/24/2009 1,080
High River 8/25/2009 31,280
High River 8/27/2009 120
High River 8/28/2009 13,700
High River 9/1/2009 33,820
High River 9/2/2009 30,000
High River 9/11/2009 23,060
High River 9/14/2009 1,640
High River 9/15/2009 25,300
High River 9/24/2009 10,000
High River 10/2/2009 10,000
High River 10/26/2009 23,280
High River 10/28/2009 20,000
High River 3/1/2011 48,813
High River 3/1/2011 1,000
High River 3/2/2011 40,000
High River 3/4/2011 20,000
High River 6/24/2011 3,566,075 (3)
Icahn Partners 8/21/2009 109,547
Icahn Partners 8/24/2009 1,478
Icahn Partners 8/25/2009 42,834
Icahn Partners 8/27/2009 165
Icahn Partners 8/28/2009 18,759
Icahn Partners 9/1/2009 46,823
Icahn Partners 9/2/2009 41,165
Icahn Partners 9/11/2009 31,651
Icahn Partners 9/14/2009 2,250
Icahn Partners 9/15/2009 34,724
Icahn Partners 9/24/2009 13,725
Icahn Partners 10/2/2009 14,680
Icahn Partners 10/26/2009 32,053
Icahn Partners 10/28/2009 27,524
Icahn Partners 3/1/2011 115,927
Icahn Partners 3/2/2011 69,954
Icahn Partners 3/4/2011 30,693
Icahn Partners 6/24/2011 5,461,234 (3)
Icahn Master 8/21/2009 134,886
Icahn Master 8/24/2009 1,820
Icahn Master 8/25/2009 52,741
Icahn Master 8/27/2009 202
Icahn Master 8/28/2009 23,099
Icahn Master 9/1/2009 57,157
Icahn Master 9/2/2009 50,571
Icahn Master 9/11/2009 38,896
Icahn Master 9/14/2009 2,765
Icahn Master 9/15/2009 42,674
Icahn Master 9/24/2009 16,867
Icahn Master 10/2/2009 18,530
Icahn Master 10/26/2009 39,409
Icahn Master 10/28/2009 33,863
Icahn Master 3/1/2011 72,491
Icahn Master 3/2/2011 76,863
Icahn Master 3/4/2011 33,724
Icahn Master 6/24/2011 5,886,220 (3)
Icahn Master II 8/21/2009 54,727
Icahn Master II 8/24/2009 739
Icahn Master II 8/25/2009 21,399
Icahn Master II 8/27/2009 81
Icahn Master II 8/28/2009 9,373
Icahn Master II 9/1/2009 22,622
Icahn Master II 9/2/2009 20,465
Icahn Master II 9/11/2009 15,704
Icahn Master II 9/14/2009 1,119
Icahn Master II 9/15/2009 17,231
Icahn Master II 9/24/2009 6,811
Icahn Master II 10/2/2009 5,113
Icahn Master II 10/26/2009 15,701
Icahn Master II 10/28/2009 13,491
Icahn Master II 3/2/2011 1,572
Icahn Master II 3/4/2011 10,490
Icahn Master II 6/24/2011 2,040,139 (3)
Icahn Master III 8/21/2009 20,840
Icahn Master III 8/24/2009 283
Icahn Master III 8/25/2009 8,146
Icahn Master III 8/27/2009 32
Icahn Master III 8/28/2009 3,569
Icahn Master III 9/1/2009 8,678
Icahn Master III 9/2/2009 7,799
Icahn Master III 9/11/2009 5,989
Icahn Master III 9/14/2009 426
Icahn Master III 9/15/2009 6,571
Icahn Master III 9/24/2009 2,597
Icahn Master III 10/2/2009 1,677
Icahn Master III 10/26/2009 5,957
Icahn Master III 10/28/2009 5,122
Icahn Master III 3/1/2011 10,834
Icahn Master III 3/2/2011 11,611
Icahn Master III 3/4/2011 5,093
Icahn Master III 6/24/2011 876,708 (3)
_________________________
(3) The record holder acquired these Shares upon the exercise of call options
as described on Attachment I-A 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 June 23, 2011, the indebtedness of (i) High River's margin account was
approximately $280.7 million, (ii) Icahn Partners' margin account was
approximately $442.7 million, (iii) Icahn Master's margin account was
approximately $440.9 million, (iv) Icahn Master II's margin account was
approximately $107.4 million, and (v) Icahn Master III's margin account was
approximately $57.5 million.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Icahn Parties, which
were written by UBS AG with a $21.25 strike price and an expiration date of
March 7, 2013, and which provided for physical settlement (unless the applicable
Icahn Party opts for a cash settlement). These are further described in the
chart set forth below. On June 24, 2011, the Icahn Parties exercised all of
their respective call options.
OPTION PREMIUM
NAME DATE QUANTITY PAID ($)
---- ---- --------- --------------
High River 3/7/2011 40,000 439,412.00
High River 3/8/2011 24,958 278,134.45
High River 3/10/2011 25,688 279,305.62
High River 3/11/2011 20,000 211,742.00
High River 3/14/2011 26,590 275,504.31
High River 3/16/2011 67,290 616,336.03
High River 3/17/2011 40,000 375,088.00
High River 3/18/2011 40,740 389,380.70
High River 3/23/2011 4,879 46,285.61
High River 4/26/2011 66,354 772,778.59
High River 4/27/2011 30,488 361,569.39
High River 4/28/2011 320 3,801.60
High River 4/29/2011 65,980 789,127.40
High River 5/12/2011 127,227 1,574,853.97
High River 5/13/2011 101,298 1,315,921.80
High River 5/16/2011 1,329 17,220.52
High River 5/17/2011 24,003 311,628.55
High River 5/18/2011 175,365 2,393,451.67
High River 5/19/2011 222,287 3,103,904.52
High River 5/20/2011 222,384 3,128,609.30
High River 5/23/2011 155,759 2,109,428.56
High River 5/24/2011 87,833 1,203,619.52
High River 5/25/2011 162,407 2,265,528.93
High River 5/26/2011 112,860 1,596,867.43
High River 6/1/2011 12,394 176,817.76
High River 6/2/2011 42,836 610,841.36
High River 6/3/2011 446,401 6,917,340.62
High River 6/6/2011 95,000 1,454,250.50
High River 6/7/2011 262,741 4,106,247.72
High River 6/8/2011 219,098 3,452,173.82
High River 6/9/2011 362,519 5,967,389.01
High River 6/10/2011 279,047 4,647,332.45
Icahn Partners 3/7/2011 61,386 674,343.63
Icahn Partners 3/8/2011 38,302 426,841.32
Icahn Partners 3/10/2011 39,422 428,635.41
Icahn Partners 3/11/2011 30,692 324,939.27
Icahn Partners 3/14/2011 40,807 422,809.49
Icahn Partners 3/16/2011 103,267 945,863.76
Icahn Partners 3/17/2011 61,383 575,600.67
Icahn Partners 3/18/2011 62,522 597,566.52
Icahn Partners 3/23/2011 7,488 71,036.41
Icahn Partners 4/26/2011 103,149 1,201,304.20
Icahn Partners 4/27/2011 46,839 555,482.44
Icahn Partners 4/28/2011 493 5,856.84
Icahn Partners 4/29/2011 101,370 1,212,395.34
Icahn Partners 5/12/2011 191,068 2,365,097.02
Icahn Partners 5/13/2011 155,182 2,015,907.29
Icahn Partners 5/16/2011 2,035 26,368.51
Icahn Partners 5/17/2011 36,771 477,394.22
Icahn Partners 5/18/2011 268,648 3,666,615.36
Icahn Partners 5/19/2011 340,528 4,754,962.73
Icahn Partners 5/20/2011 340,677 4,792,814.37
Icahn Partners 5/23/2011 238,613 3,231,512.00
Icahn Partners 5/24/2011 134,553 1,843,847.04
Icahn Partners 5/25/2011 248,797 3,470,643.51
Icahn Partners 5/26/2011 172,894 2,446,294.50
Icahn Partners 6/1/2011 18,626 265,725.97
Icahn Partners 6/2/2011 65,615 935,669.90
Icahn Partners 6/3/2011 683,786 10,595,811.10
Icahn Partners 6/6/2011 145,518 2,227,574.99
Icahn Partners 6/7/2011 402,460 6,289,846.11
Icahn Partners 6/8/2011 335,608 5,287,940.33
Icahn Partners 6/9/2011 555,298 9,140,704.85
Icahn Partners 6/10/2011 427,437 7,118,664.03
Icahn Master 3/7/2011 67,448 740,936.51
Icahn Master 3/8/2011 42,085 468,999.45
Icahn Master 3/10/2011 43,314 470,953.12
Icahn Master 3/11/2011 33,725 357,049.95
Icahn Master 3/14/2011 44,835 464,544.40
Icahn Master 3/16/2011 113,464 1,039,262.16
Icahn Master 3/17/2011 67,449 632,482.76
Icahn Master 3/18/2011 68,695 656,566.20
Icahn Master 3/23/2011 8,229 78,066.05
Icahn Master 4/26/2011 78,757 917,227.65
Icahn Master 4/27/2011 50,095 594,096.64
Icahn Master 4/28/2011 526 6,248.88
Icahn Master 4/29/2011 108,417 1,296,678.16
Icahn Master 5/12/2011 219,672 2,719,165.92
Icahn Master 5/13/2011 167,531 2,176,328.21
Icahn Master 5/16/2011 2,197 28,467.63
Icahn Master 5/17/2011 39,698 515,395.16
Icahn Master 5/18/2011 290,025 3,958,377.21
Icahn Master 5/19/2011 367,627 5,133,359.61
Icahn Master 5/20/2011 367,787 5,174,211.41
Icahn Master 5/23/2011 257,602 3,488,678.13
Icahn Master 5/24/2011 145,261 1,990,584.11
Icahn Master 5/25/2011 268,594 3,746,805.72
Icahn Master 5/26/2011 186,653 2,640,971.96
Icahn Master 6/1/2011 21,565 307,654.92
Icahn Master 6/2/2011 70,863 1,010,506.38
Icahn Master 6/3/2011 738,386 11,443,431.36
Icahn Master 6/6/2011 157,160 2,405,789.56
Icahn Master 6/7/2011 434,655 6,793,005.67
Icahn Master 6/8/2011 362,455 5,710,949.72
Icahn Master 6/9/2011 599,720 9,871,930.95
Icahn Master 6/10/2011 461,630 7,688,124.51
Icahn Master II 3/7/2011 20,976 230,427.65
Icahn Master II 3/8/2011 13,089 145,865.12
Icahn Master II 3/10/2011 13,472 146,481.06
Icahn Master II 3/11/2011 10,488 111,037.50
Icahn Master II 3/14/2011 13,945 144,486.93
Icahn Master II 3/16/2011 35,288 323,216.91
Icahn Master II 3/17/2011 20,979 196,724.28
Icahn Master II 3/18/2011 21,365 204,200.26
Icahn Master II 3/23/2011 2,558 24,266.98
Icahn Master II 4/26/2011 71,564 833,455.81
Icahn Master II 4/27/2011 17,447 206,910.95
Icahn Master II 4/28/2011 182 2,162.16
Icahn Master II 4/29/2011 37,753 451,529.66
Icahn Master II 5/12/2011 68,223 844,484.76
Icahn Master II 5/13/2011 57,497 746,920.53
Icahn Master II 5/16/2011 755 9,782.91
Icahn Master II 5/17/2011 13,624 176,879.03
Icahn Master II 5/18/2011 99,536 1,358,507.14
Icahn Master II 5/19/2011 126,170 1,761,774.80
Icahn Master II 5/20/2011 126,226 1,775,810.48
Icahn Master II 5/23/2011 88,408 1,197,300.70
Icahn Master II 5/24/2011 49,853 683,160.59
Icahn Master II 5/25/2011 92,180 1,285,883.35
Icahn Master II 5/26/2011 64,059 906,377.20
Icahn Master II 6/1/2011 6,014 85,798.13
Icahn Master II 6/2/2011 24,296 346,460.96
Icahn Master II 6/3/2011 253,176 3,923,164.66
Icahn Master II 6/6/2011 53,880 824,789.65
Icahn Master II 6/7/2011 149,013 2,328,849.67
Icahn Master II 6/8/2011 124,261 1,957,893.59
Icahn Master II 6/9/2011 205,601 3,384,377.50
Icahn Master II 6/10/2011 158,261 2,635,726.17
Icahn Master III 3/7/2011 10,190 111,940.21
Icahn Master III 3/8/2011 6,357 70,843.04
Icahn Master III 3/10/2011 6,543 71,142.04
Icahn Master III 3/11/2011 5,095 53,941.27
Icahn Master III 3/14/2011 6,773 70,176.41
Icahn Master III 3/16/2011 17,141 157,001.28
Icahn Master III 3/17/2011 10,189 95,544.29
Icahn Master III 3/18/2011 10,378 99,189.81
Icahn Master III 3/23/2011 1,243 11,791.97
Icahn Master III 4/26/2011 11,944 139,103.41
Icahn Master III 4/27/2011 7,569 89,763.80
Icahn Master III 4/28/2011 79 938.52
Icahn Master III 4/29/2011 16,382 195,930.36
Icahn Master III 5/12/2011 29,945 370,668.19
Icahn Master III 5/13/2011 24,984 324,557.15
Icahn Master III 5/16/2011 327 4,237.10
Icahn Master III 5/17/2011 5,921 76,871.75
Icahn Master III 5/18/2011 43,250 590,293.30
Icahn Master III 5/19/2011 54,822 765,507.00
Icahn Master III 5/20/2011 54,846 771,600.95
Icahn Master III 5/23/2011 38,415 520,250.50
Icahn Master III 5/24/2011 21,663 296,858.92
Icahn Master III 5/25/2011 40,055 558,755.23
Icahn Master III 5/26/2011 27,833 393,811.90
Icahn Master III 6/1/2011 3,373 48,120.57
Icahn Master III 6/2/2011 10,570 150,728.20
Icahn Master III 6/3/2011 110,158 1,706,986.34
Icahn Master III 6/6/2011 23,442 358,847.79
Icahn Master III 6/7/2011 64,836 1,013,289.43
Icahn Master III 6/8/2011 54,066 851,880.12
Icahn Master III 6/9/2011 89,459 1,472,575.65
Icahn Master III 6/10/2011 68,860 1,146,815.10
ANNEX A
ATTACHMENT 1-B
The following are European put options which were written by the Icahn Parties
to UBS AG and had a $21.25 strike price and an expiration date of the earlier of
March 7, 2013 or the date on which the corresponding American-style call option
described above in Annex A, Attachment 1-A is exercised, and provided for cash
settlement only and are further described in the chart set forth below. On June
24, 2010, the Icahn Parties exercised all of the call options described in Annex
A Attachment 1-A, and upon exercise of the call options, all of the put options
described below expired pursuant to their terms.
OPTION PREMIUM
NAME DATE QUANTITY RECEIVED ($)
---- ---- --------- --------------
High River 3/7/2011 40,000 400.00
High River 3/8/2011 24,958 249.58
High River 3/10/2011 25,688 256.88
High River 3/11/2011 20,000 200.00
High River 3/14/2011 26,590 265.90
High River 3/16/2011 67,290 672.90
High River 3/17/2011 40,000 400.00
High River 3/18/2011 40,740 407.40
High River 3/23/2011 4,879 48.79
High River 4/26/2011 66,354 663.54
High River 4/27/2011 30,488 304.88
High River 4/28/2011 320 3.20
High River 4/29/2011 65,980 659.80
High River 5/12/2011 127,227 1,272.27
High River 5/13/2011 101,298 1,012.98
High River 5/16/2011 1,329 13.29
High River 5/17/2011 24,003 240.03
High River 5/18/2011 175,365 1,753.65
High River 5/19/2011 222,287 2,222.87
High River 5/20/2011 222,384 2,223.84
High River 5/23/2011 155,759 1,557.59
High River 5/24/2011 87,833 878.33
High River 5/25/2011 162,407 1,624.07
High River 5/26/2011 112,860 1,128.60
High River 6/1/2011 12,394 123.94
High River 6/2/2011 42,836 428.36
High River 6/3/2011 446,401 4,464.01
High River 6/6/2011 95,000 950.00
High River 6/7/2011 262,741 2,627.41
High River 6/8/2011 219,098 2,190.98
High River 6/9/2011 362,519 3,625.19
High River 6/10/2011 279,047 2,790.47
Icahn Partners 3/7/2011 61,386 613.86
Icahn Partners 3/8/2011 38,302 383.02
Icahn Partners 3/10/2011 39,422 394.22
Icahn Partners 3/11/2011 30,692 306.92
Icahn Partners 3/14/2011 40,807 408.07
Icahn Partners 3/16/2011 103,267 1,032.67
Icahn Partners 3/17/2011 61,383 613.83
Icahn Partners 3/18/2011 62,522 625.22
Icahn Partners 3/23/2011 7,488 74.88
Icahn Partners 4/26/2011 103,149 1,031.49
Icahn Partners 4/27/2011 46,839 468.39
Icahn Partners 4/28/2011 493 4.93
Icahn Partners 4/29/2011 101,370 1,013.70
Icahn Partners 5/12/2011 191,068 1,910.68
Icahn Partners 5/13/2011 155,182 1,551.82
Icahn Partners 5/16/2011 2,035 20.35
Icahn Partners 5/17/2011 36,771 367.71
Icahn Partners 5/18/2011 268,648 2,686.48
Icahn Partners 5/19/2011 340,528 3,405.28
Icahn Partners 5/20/2011 340,677 3,406.77
Icahn Partners 5/23/2011 238,613 2,386.13
Icahn Partners 5/24/2011 134,553 1,345.53
Icahn Partners 5/25/2011 248,797 2,487.97
Icahn Partners 5/26/2011 172,894 1,728.94
Icahn Partners 6/1/2011 18,626 186.26
Icahn Partners 6/2/2011 65,615 656.15
Icahn Partners 6/3/2011 683,786 6,837.86
Icahn Partners 6/6/2011 145,518 1,455.18
Icahn Partners 6/7/2011 402,460 4,024.60
Icahn Partners 6/8/2011 335,608 3,356.08
Icahn Partners 6/9/2011 555,298 5,552.98
Icahn Partners 6/10/2011 427,437 4,274.37
Icahn Master 3/7/2011 67,448 674.48
Icahn Master 3/8/2011 42,085 420.85
Icahn Master 3/10/2011 43,314 433.14
Icahn Master 3/11/2011 33,725 337.25
Icahn Master 3/14/2011 44,835 448.35
Icahn Master 3/16/2011 113,464 1,134.64
Icahn Master 3/17/2011 67,449 674.49
Icahn Master 3/18/2011 68,695 686.95
Icahn Master 3/23/2011 8,229 82.29
Icahn Master 4/26/2011 78,757 787.57
Icahn Master 4/27/2011 50,095 500.95
Icahn Master 4/28/2011 526 5.26
Icahn Master 4/29/2011 108,417 1,084.17
Icahn Master 5/12/2011 219,672 2,196.72
Icahn Master 5/13/2011 167,531 1,675.31
Icahn Master 5/16/2011 2,197 21.97
Icahn Master 5/17/2011 39,698 396.98
Icahn Master 5/18/2011 290,025 2,900.25
Icahn Master 5/19/2011 367,627 3,676.27
Icahn Master 5/20/2011 367,787 3,677.87
Icahn Master 5/23/2011 257,602 2,576.02
Icahn Master 5/24/2011 145,261 1,452.61
Icahn Master 5/25/2011 268,594 2,685.94
Icahn Master 5/26/2011 186,653 1,866.53
Icahn Master 6/1/2011 21,565 215.65
Icahn Master 6/2/2011 70,863 708.63
Icahn Master 6/3/2011 738,386 7,384.86
Icahn Master 6/6/2011 157,160 1,571.60
Icahn Master 6/7/2011 434,655 4,346.55
Icahn Master 6/8/2011 362,455 3,624.55
Icahn Master 6/9/2011 599,720 5,997.20
Icahn Master 6/10/2011 461,630 4,616.30
Icahn Master II 3/7/2011 20,976 209.76
Icahn Master II 3/8/2011 13,089 130.89
Icahn Master II 3/10/2011 13,472 134.72
Icahn Master II 3/11/2011 10,488 104.88
Icahn Master II 3/14/2011 13,945 139.45
Icahn Master II 3/16/2011 35,288 352.88
Icahn Master II 3/17/2011 20,979 209.79
Icahn Master II 3/18/2011 21,365 213.65
Icahn Master II 3/23/2011 2,558 25.58
Icahn Master II 4/26/2011 71,564 715.64
Icahn Master II 4/27/2011 17,447 174.47
Icahn Master II 4/28/2011 182 1.82
Icahn Master II 4/29/2011 37,753 377.53
Icahn Master II 5/12/2011 68,223 682.23
Icahn Master II 5/13/2011 57,497 574.97
Icahn Master II 5/16/2011 755 7.55
Icahn Master II 5/17/2011 13,624 136.24
Icahn Master II 5/18/2011 99,536 995.36
Icahn Master II 5/19/2011 126,170 1,261.70
Icahn Master II 5/20/2011 126,226 1,262.26
Icahn Master II 5/23/2011 88,408 884.08
Icahn Master II 5/24/2011 49,853 498.53
Icahn Master II 5/25/2011 92,180 921.80
Icahn Master II 5/26/2011 64,059 640.59
Icahn Master II 6/1/2011 6,014 60.14
Icahn Master II 6/2/2011 24,296 242.96
Icahn Master II 6/3/2011 253,176 2,531.76
Icahn Master II 6/6/2011 53,880 538.80
Icahn Master II 6/7/2011 149,013 1,490.13
Icahn Master II 6/8/2011 124,261 1,242.61
Icahn Master II 6/9/2011 205,601 2,056.01
Icahn Master II 6/10/2011 158,261 1,582.61
Icahn Master III 3/7/2011 10,190 101.90
Icahn Master III 3/8/2011 6,357 63.57
Icahn Master III 3/10/2011 6,543 65.43
Icahn Master III 3/11/2011 5,095 50.95
Icahn Master III 3/14/2011 6,773 67.73
Icahn Master III 3/16/2011 17,141 171.41
Icahn Master III 3/17/2011 10,189 101.89
Icahn Master III 3/18/2011 10,378 103.78
Icahn Master III 3/23/2011 1,243 12.43
Icahn Master III 4/26/2011 11,944 119.44
Icahn Master III 4/27/2011 7,569 75.69
Icahn Master III 4/28/2011 79 0.79
Icahn Master III 4/29/2011 16,382 163.82
Icahn Master III 5/12/2011 29,945 299.45
Icahn Master III 5/13/2011 24,984 249.84
Icahn Master III 5/16/2011 327 3.27
Icahn Master III 5/17/2011 5,921 59.21
Icahn Master III 5/18/2011 43,250 432.50
Icahn Master III 5/19/2011 54,822 548.22
Icahn Master III 5/20/2011 54,846 548.46
Icahn Master III 5/23/2011 38,415 384.15
Icahn Master III 5/24/2011 21,663 216.63
Icahn Master III 5/25/2011 40,055 400.55
Icahn Master III 5/26/2011 27,833 278.33
Icahn Master III 6/1/2011 3,373 33.73
Icahn Master III 6/2/2011 10,570 105.70
Icahn Master III 6/3/2011 110,158 1,101.58
Icahn Master III 6/6/2011 23,442 234.42
Icahn Master III 6/7/2011 64,836 648.36
Icahn Master III 6/8/2011 54,066 540.66
Icahn Master III 6/9/2011 89,459 894.59
Icahn Master III 6/10/2011 68,860 688.60
ANNEX B
[FORM OF NOMINEE AGREEMENT]
ICAHN CAPITAL LP
June 9, 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 Forest
Laboratories, Inc. ("Forest Laboratories") in connection with a proxy contest
with management of Forest Laboratories in respect of the election of directors
of Forest Laboratories at the 2011 Annual Meeting of Shareholders of Forest
Laboratories (the "Annual Meeting"), expected to be held in the Summer of 2011,
or a special meeting of shareholders of Forest Laboratories 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 Forest Laboratories at the
Annual Meeting or a special meeting of shareholders of Forest Laboratories
called for a similar purpose or in connection with a settlement of the Proxy
Contest by Icahn and Forest Laboratories, 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 Forest Laboratories, 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 Forest Laboratories
and for use in creating the proxy material to be sent to shareholders of Forest
Laboratories 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 Forest Laboratories
informing Forest Laboratories that you consent to being nominated by Icahn, or
an affiliate thereof, for election as a director of Forest Laboratories and, if
elected, consent to serving as a director of Forest Laboratories and consent to
the disclosure of certain information relating to you as would be required to be
disclosed in solicitations of proxies for your election as a director pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended, in any
such solicitation made by the Company. You also will make a statement in the
attached instrument that if elected, you intend to tender, promptly following
your election or reelection, an irrevocable resignation effective upon your
failure to receive the required vote for reelection at the next meeting at which
you would face reelection and upon acceptance of such resignation by the board
of directors, in accordance with the Company's Board Practice on Director
Elections. Upon being notified that we have chosen you, we may forward that
instrument and your completed questionnaire (or summaries thereof) to Forest
Laboratories.
_________________________
(*) The applicable agreement with Dr. Ende also provides that he will not be
entitled to this fee if Dr. Ende enters into a consulting agreement with
Icahn in connection with the Proxy Context, in form and substance
satisfactory to Icahn.
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 Forest Laboratories 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 Forest Laboratories' Board of
Directors or for any actions taken by you as a director of Forest Laboratories,
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 Forest Laboratories 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 Forest Laboratories 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 Forest Laboratories.
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:
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 proxy card to Forest
Laboratories 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 Forest Laboratories. 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) 697-6975
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550