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
Mentor Graphics 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
Dr. Alexander J. Denner
Dr. Richard Mulligan
Professor Lucian A. Bebchuk
Dr. Eric J. Ende
(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 June 17, 2011, Carl C. Icahn and affiliated entities filed a Schedule 13D
relating to Forest Laboratories, Inc., 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 STOCKHOLDERS OF FOREST LABORATORIES, INC. FOR USE AT ITS 2011 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 STOCKHOLDERS OF FOREST LABORATORIES, INC. 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.
EXHIBIT 1
Schedule 13D
[see attached]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.__)*
Forest Laboratories, Inc.
(Name of Issuer)
Common Stock, Par Value $0.10
(Title of Class of Securities)
345838106
(CUSIP Number)
Marc Weitzen, 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)
June 7, 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
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
High River Limited Partnership
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
3,979,168 (includes Shares underlying call options. See Item 5)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
3,979,168 (includes Shares underlying call options. See Item 5)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,979,168 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.39%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Hopper Investments LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,979,168 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,979,168 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,979,168 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.39%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Barberry Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,979,168 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,979,168 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,979,168 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.39%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
6,582,778 (includes Shares underlying call options. See Item 5)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
6,582,778 (includes Shares underlying call options. See Item 5)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,582,778 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.30%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund II LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
2,256,777 (includes Shares underlying call options. See Item 5)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
2,256,777 (includes Shares underlying call options. See Item 5)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,256,777 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.79%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund III LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
981,932 (includes Shares underlying call options. See Item 5)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
981,932 (includes Shares underlying call options. See Item 5)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
981,932 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.34%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Offshore LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
9,821,487 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
9,821,487 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,821,487 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.43%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Partners LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
6,095,186 (includes Shares underlying call options. See Item 5)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
6,095,186 (includes Shares underlying call options. See Item 5)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,095,186 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.13%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Onshore LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
6,095,186 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
6,095,186 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,095,186 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.13%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Capital LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
15,916,673 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
15,916,673 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,916,673 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.56%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
IPH GP LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
15,916,673 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
15,916,673 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,916,673 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.56%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Enterprises Holdings L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
15,916,673 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
15,916,673 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,916,673 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.56%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Icahn Enterprises G.P. Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
15,916,673 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
15,916,673 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,916,673 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.56%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Beckton Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
15,916,673 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
15,916,673 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,916,673 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.56%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 345838106
1 NAME OF REPORTING PERSON
Carl C. Icahn
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
19,895,841 (includes Shares underlying call options. See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
19,895,841 (includes Shares underlying call options. See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,895,841 (includes Shares underlying call options. See Item 5)
12 CHECK BOX IF THE GGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.95%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
Item 1. Security and Issuer
This statement relates to the Common Stock, par value $0.10 (the "Shares"),
issued by Forest Laboratories, Inc. (the "Issuer"). The address of the principal
executive offices of the Issuer is 909 Third Avenue, New York, New York 10022.
Item 2. Identity and Background
The persons filing this statement are High River Limited Partnership ("High
River"), Hopper Investments LLC ("Hopper"), Barberry Corp. ("Barberry"), Icahn
Partners Master Fund LP ("Icahn Master"), Icahn Partners Master Fund II LP
("Icahn Master II"), Icahn Partners Master Fund III LP ("Icahn Master III"),
Icahn Offshore LP ("Icahn Offshore"), Icahn Partners LP ("Icahn Partners"),
Icahn Onshore LP ("Icahn Onshore"), Icahn Capital LP ("Icahn Capital"), IPH GP
LLC ("IPH"), Icahn Enterprises Holdings L.P. ("Icahn Enterprises Holdings"),
Icahn Enterprises G.P. Inc. ("Icahn Enterprises GP"), Beckton Corp. ("Beckton"),
and Carl C. Icahn, a citizen of the United States of America (collectively, the
"Reporting Persons").
The principal business address of each of (i) High River, Hopper, Barberry,
Icahn Offshore, Icahn Partners, Icahn Onshore, Icahn Capital, IPH, Icahn
Enterprises Holdings, Icahn Enterprises GP and Beckton is White Plains Plaza,
445 Hamilton Avenue - Suite 1210, White Plains, NY 10601, (ii) Icahn Master,
Icahn Master II and Icahn Master III is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands, and (iii) Mr. Icahn
is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, NY 10153.
Barberry is the sole member of Hopper, which is the general partner of High
River. Icahn Offshore is the general partner of each of Icahn Master, Icahn
Master II and Icahn Master III. Icahn Onshore is the general partner of Icahn
Partners. Icahn Capital is the general partner of each of Icahn Offshore and
Icahn Onshore. Icahn Enterprises Holdings is the sole member of IPH, which is
the general partner of Icahn Capital. Beckton is the sole stockholder of Icahn
Enterprises GP, which is the general partner of Icahn Enterprises Holdings. Carl
C. Icahn is the sole stockholder of each of Barberry and Beckton. As such, Mr.
Icahn is in a position indirectly to determine the investment and voting
decisions made by each of the Reporting Persons. In addition, Mr. Icahn is the
indirect holder of approximately 92.3% of the outstanding depositary units
representing limited partnership interests in Icahn Enterprises L.P. ("Icahn
Enterprises"). Icahn Enterprises GP is the general partner of Icahn Enterprises,
which is the sole limited partner of Icahn Enterprises Holdings.
Each of High River and Barberry is primarily engaged in the business of
investing in securities. Hopper is primarily engaged in the business of serving
as the general partner of High River. Each of Icahn Master, Icahn Master II,
Icahn Master III and Icahn Partners is primarily engaged in the business of
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 Enterprises 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
Enterprises Holdings. Beckton is primarily engaged in the business of holding
the capital stock of Icahn Enterprises GP.
Carl C. Icahn's present principal occupation or employment is 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, a New York Stock Exchange listed diversified holding company
engaged in a variety of businesses, including investment management, metals,
automotive, real estate, railcar, food packaging, casino gaming 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 name, citizenship, present principal occupation or employment and
business address of each director and executive officer of the Reporting Persons
are set forth in Schedule A attached hereto.
None of the Reporting Persons nor any manager or executive officer of the
Reporting Persons, has, during the past five years, (a) been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors), or
(b) been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting,
or mandating activities subject to, Federal or State securities laws or a
finding of any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Reporting Persons hold, in the aggregate, 19,895,841 Shares (including
Shares underlying call options. See Item 5). The aggregate purchase price of the
Shares purchased by the Reporting Persons collectively was approximately $316.9
million (including commissions and premiums for the options to purchase Shares).
The source of funding for the purchase of these Shares was the general working
capital of the respective purchasers. The Shares are held by the Reporting
Persons in margin accounts together with other securities. Such margin accounts
may from time to time have debit balances. Part of the purchase price of the
Shares purchased by the Reporting Persons was obtained through margin borrowing.
As of the close of business on June 16, 2010, the indebtedness of (i) High
River's margin account was approximately $234.0 million, (ii) Icahn Partners'
margin account was approximately $410.0 million, (iii) Icahn Master's margin
account was approximately $404.6 million, (iv) Icahn Master II's margin account
was approximately $95.3 million, and (v) Icahn Master III's margin account was
approximately $52.2 million.
Item 4. Purpose of Transaction
The Reporting Persons acquired the Shares that they beneficially own in the
belief that the Shares were undervalued.
On June 10, 2011, the Reporting Persons delivered a letter to the Issuer
(the "Notification Letter"), notifying the Issuer, as required by the Issuer's
bylaws, that the Reporting Persons intend to appear at the Issuer's 2011 annual
meeting of stockholders to nominate and seek to elect the four individuals named
in the Notification Letter to the Issuer's nine-member board of directors. The
Reporting Persons believe that their proposed nominees have impressive
qualifications and that their experience, including on other pharma boards,
would be extremely beneficial to the Issuer and, therefore, its stockholders.
The bios of these proposed nominees are included in the Notification Letter
filed herewith. On June 14, 2011, representatives of the Reporting Persons met
with representatives of the Issuer and discussed the Reporting Persons' desire
to have these four persons elected to the Issuer's board and matters relevant
thereto. No agreements or understandings resulted from that meeting.
The Reporting Persons believe that recent events concerning the Issuer,
together with the declining performance of the Shares over the past 7 years and
the anticipated decline in the Issuer's results of operations due to the loss of
patent protection on Lexapro, the Issuer's most significant drug, also warrant a
change in the composition of the Issuer's board of directors. Additionally, in
2010, the Issuer 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 Issuer stated that
these matters were resolved. However, this proved not to be the case. On April
13, 2011, the Issuer publicly disclosed that on April 12, 2011, Mr. Howard
Solomon, the longtime Chairman and CEO of the Issuer, 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
Issuer previously disclosed were settled. The Issuer 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 Issuer unless his exclusion
is enjoined by legal proceedings. The Issuer 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
Issuer will support such litigation by Mr. Solomon. The Issuer indicated that it
believes that these actions by the OIG-HHS are unprecedented.
In light of:
(i) the Issuer's poor performance over the past 7 years;
(ii) the Issuer's failure to adequately prepare for the expiration of the
Lexapro patent, which will result in a serious diminution in revenues; and
(iii) the Issuer's expenditure of in excess of $300 million to ostensibly settle
matters that continue to plague the Issuer,
the Reporting Persons find it hard to understand why this board has indicated
that it will continue to spend the shareholders' money to fight the government
on behalf of Mr. Solomon. Therefore, on June 17, 2011, the Reporting Persons
made a request to the Issuer pursuant to Section 220 of the Delaware General
Corporation Law seeking documents relevant to the action by the OIG-HHS to
understand this board's rationale for its actions in these matters (the "220
Request"). The Reporting Persons may continue to seek to meet with the Issuer to
discuss matters relating to the election of directors, the proposed exclusion
action by the OIG-HHS and any other matters which the Reporting Persons believe
would enhance shareholder value.
The Reporting Persons may, from time to time and at any time, acquire
additional Shares and/or other equity, debt, notes, instruments or other
securities and/or derivative securities relating thereto (collectively,
"Securities") of the Issuer in the open market or otherwise. They reserve the
right to dispose of any or all of their Securities in the open market or
otherwise, at any time and from time to time, and to engage in any hedging or
similar transactions with respect to the Securities.
A copy of the Notification Letter is filed herewith as an exhibit and
incorporated herein by reference, and any descriptions herein of the
Notification Letter are qualified in their entirety by reference to the
Notification Letter. A copy of the 220 Request is filed herewith as an exhibit
and incorporated herein by reference, and any descriptions herein of the 220
Request are qualified in their entirety by reference to the 220 Request.
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 STOCKHOLDERS OF FOREST LABORATORIES, INC. FOR USE AT ITS 2011 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 STOCKHOLDERS OF FOREST LABORATORIES, INC. AND WILL ALSO BE AVAILABLE AT NO
CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV.
Item 5. Interest in Securities of the Issuer
For purposes of this Schedule 13D:
(a) The Reporting Persons may be deemed to beneficially own, in the
aggregate, 19,895,841 Shares (including Shares underlying call options),
representing approximately 6.95% of the Issuer's outstanding Shares (based upon
the 286,162,661 Shares stated to be outstanding as of May 25, 2011 by the Issuer
in the Issuer's Form 10-K filed with the Securities and Exchange Commission on
May 27, 2011).
(b) High River has sole voting power and sole dispositive power with regard
to 3,979,168 Shares (including Shares underlying call options). Each of Hopper,
Barberry and Mr. Icahn has shared voting power and shared dispositive power with
regard to such Shares. Icahn Master has sole voting power and sole dispositive
power with regard to 6,582,778 Shares (including Shares underlying call
options). Each of Icahn Offshore, Icahn Capital, IPH, Icahn Enterprises
Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting power
and shared dispositive power with regard to such Shares. Icahn Master II has
sole voting power and sole dispositive power with regard to 2,256,777 Shares
(including Shares underlying call options). Each of Icahn Offshore, Icahn
Capital, IPH, Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr.
Icahn has shared voting power and shared dispositive power with regard to such
Shares. Icahn Master III has sole voting power and sole dispositive power with
regard to 981,932 Shares (including Shares underlying call options). Each of
Icahn Offshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and shared
dispositive power with regard to such Shares. Icahn Partners has sole voting
power and sole dispositive power with regard to 6,095,186 Shares (including
Shares underlying call options). Each of Icahn Onshore, Icahn Capital, IPH,
Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has
shared voting power and shared dispositive power with regard to such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River (as disclosed in Item 2), may be deemed to indirectly beneficially
own (as that term is defined in Rule 13d-3 under the Act) the Shares which High
River directly beneficially owns. Each of Hopper, Barberry and Mr. Icahn
disclaims beneficial ownership of such Shares for all other purposes. Each of
Icahn Offshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to each
of Icahn Master, Icahn Master II and Icahn Master III (as disclosed in Item 2),
may be deemed to indirectly beneficially own (as that term is defined in Rule
13d-3 under the Act) the Shares which each of Icahn Master, Icahn Master II and
Icahn Master III directly beneficially owns. Each of Icahn Offshore, Icahn
Capital, IPH, Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr.
Icahn disclaims beneficial ownership of such Shares for all other purposes. Each
of Icahn Onshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Partners (as disclosed in Item 2), may be deemed to indirectly beneficially own
(as that term is defined in Rule 13d-3 under the Act) the Shares which Icahn
Partners directly beneficially owns. Each of Icahn Onshore, Icahn Capital, IPH,
Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn
disclaims beneficial ownership of such Shares for all other purposes.
(c) The following table sets forth all transactions with respect to Shares
effected during the past sixty (60) days by any of the Reporting Persons,
inclusive of any transactions effected through 5:00 p.m., New York City time, on
June 17, 2011. Except as otherwise noted below, all such transactions were
purchases of Shares effected in the open market, and the table includes
commissions paid in per share prices.
Name of Date of Amount of Price Per
Reporting Transaction Securities Share
Person
---------------- ----------- ---------- ----------
High River 4/26/2011 66,354(1) 12.30(2)
High River 4/27/2011 30,488(1) 11.86(2)
High River 4/28/2011 320(1) 11.88(2)
High River 4/29/2011 65,980(1) 11.96(2)
High River 5/12/2011 127,227(1) 12.38(2)
High River 5/13/2011 101,298(1) 12.99(2)
High River 5/16/2011 1,329(1) 12.96(2)
High River 5/17/2011 24,003(1) 12.98(2)
High River 5/18/2011 175,365(1) 13.65(2)
High River 5/19/2011 222,287(1) 13.96(2)
High River 5/20/2011 222,384(1) 14.07(2)
High River 5/23/2011 155,759(1) 13.54(2)
High River 5/24/2011 87,833(1) 13.70(2)
High River 5/25/2011 162,407(1) 13.95(2)
High River 5/26/2011 112,860(1) 14.15(2)
High River 6/1/2011 12,394(1) 14.27(2)
High River 6/2/2011 42,836(1) 14.26(2)
High River 6/3/2011 446,401(1) 15.50(2)
High River 6/6/2011 95,000(1) 15.31(2)
High River 6/7/2011 262,741(1) 15.63(2)
High River 6/8/2011 219,098(1) 15.76(2)
High River 6/9/2011 362,519(1) 16.46(2)
High River 6/10/2011 279,047(1) 16.65(2)
Icahn Partners 4/26/2011 103,149(1) 12.30(2)
Icahn Partners 4/27/2011 46,839(1) 11.86(2)
Icahn Partners 4/28/2011 493(1) 11.88(2)
Icahn Partners 4/29/2011 101,370(1) 11.96(2)
Icahn Partners 5/12/2011 191,068(1) 12.38(2)
Icahn Partners 5/13/2011 155,182(1) 12.99(2)
Icahn Partners 5/16/2011 2,035(1) 12.96(2)
Icahn Partners 5/17/2011 36,771(1) 12.98(2)
Icahn Partners 5/18/2011 268,648(1) 13.65(2)
Icahn Partners 5/19/2011 340,528(1) 13.96(2)
Icahn Partners 5/20/2011 340,677(1) 14.07(2)
Icahn Partners 5/23/2011 238,613(1) 13.54(2)
Icahn Partners 5/24/2011 134,553(1) 13.70(2)
Icahn Partners 5/25/2011 248,797(1) 13.95(2)
Icahn Partners 5/26/2011 172,894(1) 14.15(2)
Icahn Partners 6/1/2011 18,626(1) 14.27(2)
Icahn Partners 6/2/2011 65,615(1) 14.26(2)
Icahn Partners 6/3/2011 683,786(1) 15.50(2)
Icahn Partners 6/6/2011 145,518(1) 15.31(2)
Icahn Partners 6/7/2011 402,460(1) 15.63(2)
Icahn Partners 6/8/2011 335,608(1) 15.76(2)
Icahn Partners 6/9/2011 555,298(1) 16.46(2)
Icahn Partners 6/10/2011 427,437(1) 16.65(2)
Icahn Master 4/26/2011 78,757(1) 12.30(2)
Icahn Master 4/27/2011 50,095(1) 11.86(2)
Icahn Master 4/28/2011 526(1) 11.88(2)
Icahn Master 4/29/2011 108,417(1) 11.96(2)
Icahn Master 5/12/2011 219,672(1) 12.38(2)
Icahn Master 5/13/2011 167,531(1) 12.99(2)
Icahn Master 5/16/2011 2,197(1) 12.96(2)
Icahn Master 5/17/2011 39,698(1) 12.98(2)
Icahn Master 5/18/2011 290,025(1) 13.65(2)
Icahn Master 5/19/2011 367,627(1) 13.96(2)
Icahn Master 5/20/2011 367,787(1) 14.07(2)
Icahn Master 5/23/2011 257,602(1) 13.54(2)
Icahn Master 5/24/2011 145,261(1) 13.70(2)
Icahn Master 5/25/2011 268,594(1) 13.95(2)
Icahn Master 5/26/2011 186,653(1) 14.15(2)
Icahn Master 6/1/2011 21,565(1) 14.27(2)
Icahn Master 6/2/2011 70,863(1) 14.26(2)
Icahn Master 6/3/2011 738,486(1) 15.50(2)
Icahn Master 6/6/2011 157,160(1) 15.31(2)
Icahn Master 6/7/2011 434,655(1) 15.63(2)
Icahn Master 6/8/2011 362,455(1) 15.76(2)
Icahn Master 6/9/2011 599,720(1) 16.46(2)
Icahn Master 6/10/2011 461,630(1) 16.65(2)
Icahn Master II 4/26/2011 71,564(1) 12.30(2)
Icahn Master II 4/27/2011 17,447(1) 11.86(2)
Icahn Master II 4/28/2011 182(1) 11.88(2)
Icahn Master II 4/29/2011 37,753(1) 11.96(2)
Icahn Master II 5/12/2011 68,223(1) 12.38(2)
Icahn Master II 5/13/2011 57,497(1) 12.99(2)
Icahn Master II 5/16/2011 755(1) 12.96(2)
Icahn Master II 5/17/2011 13,624(1) 12.98(2)
Icahn Master II 5/18/2011 99,536(1) 13.65(2)
Icahn Master II 5/19/2011 126,170(1) 13.96(2)
Icahn Master II 5/20/2011 126,226(1) 14.07(2)
Icahn Master II 5/23/2011 88,408(1) 13.54(2)
Icahn Master II 5/24/2011 49,853(1) 13.70(2)
Icahn Master II 5/25/2011 92,180(1) 13.95(2)
Icahn Master II 5/26/2011 64,059(1) 14.15(2)
Icahn Master II 6/1/2011 6,014(1) 14.27(2)
Icahn Master II 6/2/2011 24,296(1) 14.26(2)
Icahn Master II 6/3/2011 253,176(1) 15.50(2)
Icahn Master II 6/6/2011 53,880(1) 15.31(2)
Icahn Master II 6/7/2011 149,013(1) 15.63(2)
Icahn Master II 6/8/2011 124,261(1) 15.76(2)
Icahn Master II 6/9/2011 205,601(1) 16.46(2)
Icahn Master II 6/10/2011 158,261(1) 16.65(2)
Icahn Master III 4/26/2011 11,944(1) 12.30(2)
Icahn Master III 4/27/2011 7,569(1) 11.86(2)
Icahn Master III 4/28/2011 79(1) 11.88(2)
Icahn Master III 4/29/2011 16,382(1) 11.96(2)
Icahn Master III 5/12/2011 29,945(1) 12.38(2)
Icahn Master III 5/13/2011 24,984(1) 12.99(2)
Icahn Master III 5/16/2011 327(1) 12.96(2)
Icahn Master III 5/17/2011 5,921(1) 12.98(2)
Icahn Master III 5/18/2011 43,250(1) 13.65(2)
Icahn Master III 5/19/2011 54,822(1) 13.96(2)
Icahn Master III 5/20/2011 54,846(1) 14.07(2)
Icahn Master III 5/23/2011 38,415(1) 13.54(2)
Icahn Master III 5/24/2011 21,663(1) 13.70(2)
Icahn Master III 5/25/2011 40,055(1) 13.95(2)
Icahn Master III 5/26/2011 27,833(1) 14.15(2)
Icahn Master III 6/1/2011 3,373(1) 14.27(2)
Icahn Master III 6/2/2011 10,570(1) 14.26(2)
Icahn Master III 6/3/2011 110,158(1) 15.50(2)
Icahn Master III 6/6/2011 23,442(1) 15.31(2)
Icahn Master III 6/7/2011 64,836(1) 15.63(2)
Icahn Master III 6/8/2011 54,066(1) 15.76(2)
Icahn Master III 6/9/2011 89,459(1) 16.46(2)
Icahn Master III 6/10/2011 68,860(1) 16.65(2)
_________________________
(1) Represents shares underlying American-style call options purchased by the
applicable Reporting Person in the over the counter market. These call
options expire on March 7, 2013.
(2) This amount represents the cost of an applicable American-style call
option to purchase one Share. The per share exercise price of these call
options is $21.25. This exercise price will be adjusted to account for any
dividends or other distributions declared by the Issuer prior to exercise
of the options.
Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to
Securities of the Issuer
Call Options
------------
The Reporting Persons purchased, in the over the counter market,
American-style call options referencing an aggregate of 17,830,376 Shares, which
expire on March 7, 2013. The agreements provide for physical settlement (unless
the Reporting Person opts for a cash settlement). These agreements do not give
the Reporting Persons direct or indirect voting, investment or dispositive
control over the Shares to which these agreements relate. These agreements are
further described in Item 5(c).
Put Options
-----------
The Reporting Persons have sold, in the over the counter market,
European-style put options referencing an aggregate of 17,830,376 Shares, which
expire on the earlier of March 7, 2013 or the date on which the corresponding
American-style call option described above in this Item 6 is exercised, for an
aggregate consideration of $178,303.76, in cash. The agreements provide that
they settle in cash. These agreements do not give the Reporting Persons direct
or indirect voting, investment or dispositive control over the Shares to which
these agreements relate.
Except as otherwise described herein, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named in
Item 2 and between such persons and any person with respect to any securities of
the Issuer, including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Agreement with Alexander Denner
-------------------------------
Pursuant to (i) an agreement, dated as of June 10, 2011, by and among Icahn
Enterprises LP, Icahn Enterprises Holdings LP and Alexander J. Denner and (ii)
an agreement, dated as of June 10, 2011, by and between Carl C. Icahn and
Alexander J. Denner, Alexander J. Denner has a participatory interest in the
profits attributable to the Shares beneficially owned by the Reporting Persons
and their affiliates equal to 5% of an amount equal to (x) such profits minus
(y) an amount equal to a return on the Reporting Persons' and their affiliates'
investment in the Shares of 8% per annum, compounded annually.
Item 7. Material to be Filed as Exhibits
1. Joint Filing Agreement of the Reporting Persons
2. The Notification Letter
3. The 220 Request
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: June 17, 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
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of
1934, as amended, the persons named below agree to the joint filing on behalf of
each of them of a statement on Schedule 13D (including amendments thereto) with
respect to the Common Stock of Lawson Software, Inc. and further agree that this
Joint Filing Agreement be included as an Exhibit to such joint filings. In
evidence thereof, the undersigned, being duly authorized, have executed this
Joint Filing Agreement this 17th day of June, 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
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSONS
The following sets forth the name, position, and principal occupation of
each director and executive officer of each of the Reporting Persons. Each such
person is a citizen of the United States of America. Except as otherwise
indicated, the business address of each director and officer is c/o Icahn
Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153. To the
best of the Reporting Persons' knowledge, except as set forth in this statement
on Schedule 13D, none of the directors or executive officers of the Reporting
Persons own any Shares.
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
Name Position
---- --------
Icahn Offshore LP General Partner
Carl C. Icahn Chief Executive Officer
Vincent J. Intrieri Senior Managing Director
Irene March Chief Financial Officer
Edward E. Mattner Authorized Signatory
Gail Golden Authorized Signatory
Keith Cozza Chief Compliance Officer
ICAHN PARTNERS LP
Name Position
---- --------
Icahn Onshore LP General Partner
Carl C. Icahn Chief Executive Officer
Vincent J. Intrieri Senior Managing Director
Irene March Chief Financial Officer
Edward E. Mattner Authorized Signatory
Gail Golden Authorized Signatory
Keith Cozza Chief Compliance Officer
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
Name Position
---- --------
Icahn Capital LP General Partner
Carl C. Icahn Chief Executive Officer
Vincent J. Intrieri Senior Managing Director
Irene March Chief Financial Officer
Edward E. Mattner Authorized Signatory
Gail Golden Authorized Signatory
Keith Cozza Chief Compliance Officer
ICAHN CAPITAL LP
Name Position
---- --------
IPH GP LLC General Partner
Carl C. Icahn Chief Executive Officer
Vincent J. Intrieri Senior Managing Director
Irene March Chief Financial Officer
Edward E. Mattner Authorized Signatory
Gail Golden Authorized Signatory
Keith Cozza Chief Compliance Officer
IPH GP LLC
Name Position
---- --------
Icahn Enterprises Holdings L.P. Sole Member
Carl C. Icahn Chief Executive Officer
Vincent J. Intrieri Senior Managing Director
Dominick Ragone Chief Financial Officer
Edward E. Mattner Authorized Signatory
Gail Golden Authorized Signatory
Keith Cozza Chief Compliance Officer
ICAHN ENTERPRISES HOLDINGS L.P.
Name Position
---- --------
Icahn Enterprises G.P. Inc. General Partner
ICAHN ENTERPRISES G.P. INC.
Name Position
---- --------
Carl C. Icahn Chairman
Daniel A. Ninivaggi President
William A. Leidesdorf Director
Jack G. Wasserman Director
James L. Nelson Director
Vincent J. Intrieri Director
Dominick Ragone Chief Financial Officer
Felicia P. Buebel Assistant Secretary
Craig Pettit Vice President/Taxes
BECKTON CORP.
Name Position
---- --------
Carl C. Icahn Chairman of the Board; President
Jordan Bleznick Vice President/Taxes
Edward E. Mattner Authorized Signatory
Keith Cozza Secretary; Treasurer
HIGH RIVER LIMITED PARTNERSHIP
Name Position
---- --------
Hopper Investments LLC General Partner
HOPPER INVESTMENTS LLC
Name Position
---- --------
Barberry Corp General Partner
Edward E. Mattner Authorized Signatory
BARBERRY CORP.
Name Position
---- --------
Carl C. Icahn Chairman of the Board; President
Gail Golden Vice President; Authorized Signatory
Jordan Bleznick Vice President/Taxes
Vincent J. Intrieri Vice President; Authorized Signatory
Irene March Authorized Signatory
Edward E. Mattner Authorized Signatory
Keith Cozza Secretary; Treasurer
EXHIBIT 2
HIGH RIVER LIMITED PARTNERSHIP
c/o Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
New York, NY 10153
June 10, 2011
VIA HAND DELIVERY, EMAIL AND FACSIMILE
--------------------------------------
Forest Laboratories, Inc.
909 Third Avenue
New York, NY 10022
Attention: Corporate Secretary
Re: Stockholders' Notice of Nominations of Persons for Election as Directors
at the 2011 Annual Meeting of Stockholders ofForest Laboratories, Inc.
(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 Amended and Restated Bylaws of the Corporation (the "Bylaws") of its intent
to nominate each person on the Slate (as defined below) for election as
directors of the Corporation at the 2011 annual meeting of stockholders of the
Corporation (the "Annual Meeting"), or any special meeting of stockholders of
the Corporation called for a similar purpose. This Notice is submitted by the
Record Holder and on behalf of the Direct Beneficial Owners and the Beneficial
Owners (as defined in Annex A).
As of the close of business on June 9, 2011, (i) High River represents that
it is the holder of record of, and is entitled to vote, 1000 shares of Common
Stock, $0.10 par value per share, of the Corporation (the "Shares") and that it
is the direct beneficial owner of 3,700,121 Shares (including the 1000 Shares of
which High River is the stockholder of record); (ii) Icahn Partners LP, a
Delaware limited partnership ("Icahn Partners"), represents that it is the
direct beneficial owner of 5,667,749 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 6,121,148 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 2,098,516 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 913,072 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, 47th Floor, New York, NY
10153. The address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands. The address of Icahn
Master II is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town,
Grand Cayman KY1-9002, Cayman Islands. The address of Icahn Master III is c/o
Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman
KY1-9002, Cayman Islands. The address of High River is 767 Fifth Avenue, 47th
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 intends to appear in person or
by proxy at the Annual Meeting to nominate for election as directors of the
Corporation the following persons (each, a "Nominee" and collectively, the
"Slate"):
Dr. Alexander J. Denner
Dr. Richard Mulligan
Professor Lucian A. Bebchuk
Dr. Eric J. Ende
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 Record Holder believes that these experts' knowledge of science, medicine,
corporate governance, finance and business will significantly improve the
science, corporate governance and business expertise of the Board of Directors
of the Corporation. The Record Holder also believes that each nominee is a
strong stockholder-oriented individual who will help represent the best
interests of the Corporation's stockholders.
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; and (iii)
(A) the written consent of each Nominee both to the disclosure of certain
information relating to such Nominee in any applicable solicitation made by the
Corporation (as required by the Bylaws) and to being named in the proxy
statement as a nominee and to serve as a director if elected and (B) a statement
from each Nominee that, if elected, such Nominee intends to tender, promptly
following such Nominee's election or reelection, an irrevocable resignation
effective upon such Nominee's failure to receive the required vote for
reelection at the next meeting at which such Nominee would face reelection and
upon acceptance of such resignation by the board of directors of the
Corporation, in accordance with the Corporation's Board Practice on Director
Elections, is attached as Annex C. Each Nominee (other than Dr. Denner) 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 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, and
(iii) with respect to Dr. Denner, through his profit interests in the Shares
held by the Direct Beneficial Owners and their affiliates as described below.
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 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.
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 (collectively, the "Funds") ownership of the Shares. In the
aggregate, Dr. Denner's profit interests and capital accounts in the Funds
entitled him to less than 2% of the profits generated by the Funds' ownership of
the Shares. The foregoing with respect to the Shares has been superseded by the
following as of the date of this Notice: Dr. Denner has a participatory interest
in the profits attributable to the Shares beneficially owned by the Direct
Beneficial Owners and their affiliates equal to 5% of an amount equal to (x)
such profits minus (y) an amount equal to a return on the Direct Beneficial
Owners' and their affiliates' investment in the Shares of 8% per annum,
compounded annually.
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.
Except as to information regarding Dr. Denner's participatory interest in
the profits attributable to the Shares (which is as of the close of business on
June 10, 2011), information is set forth herein as of the close of business on
June 9, 2011. 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 of Directors of the Corporation in
anticipation of, or following receipt of, this Notice). Furthermore, this Notice
assumes that the Board of Directors will nominate a total of nine director
nominees for election to the Board of Directors at the Annual Meeting and if the
Board of Directors of the Corporation 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. 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
[Signature page to Stockholders' Notice of Nominations of Persons for Election
as Directors at the 2011 Annual Meeting of Stockholders of Forest Laboratories,
Inc.]
ANNEX A
SECURITY OWNERSHIP OF DIRECT BENEFICIAL OWNERS
(1) TITLE (2) NAME OF (3) AMOUNT OF (4) PERCENT
OF BENEFICIAL BENEFICIAL OF
CLASS OWNER (1) OWNERSHIP (2) CLASS (3)
----- ---------- ---------- -------
Common Stock, High River 3,700,121 1.29%
par value
$0.01 per
share ("Shares")
Shares Icahn Partners 5,667,749 1.98%
Shares Icahn Master 6,121,148 2.14%
Shares Icahn Master II 2,098,516 0.73%
Shares Icahn Master III 913,072 0.32%
_________________________
(1) Please note that each stockholder listed in this table is, as of June 9,
2010, 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) Includes Shares underlying call options as described in Attachment 1-A to
this Annex A.
(3) 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 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.
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.
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, 18,500,606 Shares, representing
approximately 6.47% 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 10K filed for the fiscal year ended March
31, 2011).
High River has sole voting power and/or sole dispositive power with regard
to 3,700,121 Shares (including 3,287,028 Shares underlying call options). 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 5,667,749 Shares (including
5,033,797 Shares underlying call options). 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
6,121,148 Shares (including 5,424,590 Shares underlying call options). 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 2,098,516 Shares (including 1,881,878 Shares
underlying call options). 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 913,072 Shares
(including 807,848 Shares underlying call options). 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. As described in this Notice, the Shares beneficially owned by the Direct
Beneficial Owners and the Beneficial Owners include Shares underlying call
options. The agreements governing these call options do not give the Direct
Beneficial Owners or the Beneficial Owners direct or indirect voting, investment
or dispositive control over the Shares to which these agreements relate.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 3,700,121 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 5,667,749 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 9,132,736 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 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 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
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 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 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 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
Shares purchased by each of the Record Holders are maintained in margin accounts
that include positions in securities in addition to the Shares. As of June 9,
2011, the indebtedness of (i) High River's margin account was approximately
$247,012,854, (ii) Icahn Partners' margin account was approximately
$429,275,023, (iii) Icahn Master's margin account was approximately
$426,974,384, (iv) Icahn Master II's margin account was approximately
$102,448,135, and (v) Icahn Master III's margin account was approximately
$55,296,050.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Direct Beneficial
Owners, which have been written by UBS AG with a $21.25 strike price and an
expiration date of March 7, 2013, and which provide for physical settlement
(unless the applicable the Direct Beneficial Owner opts for a cash settlement).
These are further described in the chart set forth below.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
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
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 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 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 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
ANNEX A
ATTACHMENT 1-B
The following are European put options which have been written by the Direct
Beneficial Owners to UBS AG and have a $21.25 strike price and an expiration
date of the earlier of March 7, 2013 or the date on which the corresponding
American-style call option described above in Annex A, Attachment 1-A is
exercised, and provide for cash settlement only and are further described in the
chart set forth below.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
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
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 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 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 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
ANNEX B
ATTACHMENT 1
INFORMATION ABOUT NOMINEES
--------------------------
NAME: Alexander J. Denner, Ph.D.
AGE: 41
BUSINESS Icahn Associates Corp.,767 Fifth Avenue, 47th Floor,
ADDRESS: New York, NY 10153
RESIDENCE 565 Stanwich Road
ADDRESS: Greenwich, CT 06831
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Dr. Denner has an interest in the election of directors at the Annual Meeting
indirectly through his profit interests in the Shares held by the Direct
Beneficial Owners as described below. Other than in respect of such profit
interests, Dr. Denner does not, and his associates do not, own, beneficially or
of record, any shares of capital stock of the Corporation.
Dr. Denner has a participatory interest in the profits attributable to the
Shares beneficially owned by the Direct Beneficial Owners and their affiliates
equal to 5% of an amount equal to (x) such profits minus (y) an amount equal to
a return on the Direct Beneficial Owners' and their affiliates' investment in
the Shares of 8% per annum, compounded annually.
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.
ANNEX B
ATTACHMENT 2
INFORMATION ABOUT NOMINEES
--------------------------
NAME: Richard C. Mulligan, Ph.D
AGE: 56
BUSINESS Harvard Institutes of Medicine, Rm 407
ADDRESS: 4 Blackfan Circle
Boston, MA 02115
RESIDENCE 35 Foster Street
ADDRESS: Cambridge, MA 02138
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Dr. Mulligan does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Dr. Mulligan has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
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 Pharmaceuticals, 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.
ANNEX B
ATTACHMENT 3
INFORMATION ABOUT NOMINEES
--------------------------
NAME: Professor Lucian Bebchuk
AGE: 55
BUSINESS 22 Sacramento Street
ADDRESS: Cambridge, MA 02138
RESIDENCE 1545 Massachusetts Avenue
ADDRESS: Cambridge, MA 02138
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Professor Bebchuk does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Professor Bebchuk has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
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.
ANNEX B
ATTACHMENT 4
INFORMATION ABOUT NOMINEES
--------------------------
NAME: Eric J. Ende, M.D.
AGE: 43
BUSINESS 6231 PGA Blvd, STE 104-161
ADDRESS: Palm Beach Gardens, FL 33418
RESIDENCE 102 Via Palacio
ADDRESS: Palm Beach Gardens, FL 33418
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Dr. Ende does not, and his associates do not, own, beneficially or of record,
any shares of capital stock of the Corporation. Dr. Ende has an interest in the
election of directors at the Annual Meeting pursuant to the Nominee Agreement
attached hereto as Annex D.
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.
ANNEX C
The written consent of each Nominee to, among other things, being named as a
nominee for election as a director of the Corporation and to serve as a director
if elected is attached to this Annex C. If the Corporation requests original
signed statements of consents, the Record Holder will provide them.
ANNEX C
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Forest Laboratories, Inc. (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 LP ("Icahn Master II"), Icahn Partners
Master Fund III LP ("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 2011 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
The undersigned hereby consents to the disclosure of all information
relating to the undersigned as would be required to be disclosed in
solicitations of proxies for the election of the undersigned as a director
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, in any such solicitation made by the Company. The undersigned, if
elected, intends to tender, promptly following the undersigned's election or
reelection, an irrevocable resignation effective upon the undersigned's failure
to receive the required vote for reelection at the next meeting at which the
undersigned 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.
Dated: June 9, 2011
/s/ Alexander J. Denner
-------------------------
Name: Alexander J. Denner
ANNEX C
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Forest Laboratories, Inc. (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 LP ("Icahn Master II"), Icahn Partners
Master Fund III LP ("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 2011 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
The undersigned hereby consents to the disclosure of all information
relating to the undersigned as would be required to be disclosed in
solicitations of proxies for the election of the undersigned as a director
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, in any such solicitation made by the Company. The undersigned, if
elected, intends to tender, promptly following the undersigned's election or
reelection, an irrevocable resignation effective upon the undersigned's failure
to receive the required vote for reelection at the next meeting at which the
undersigned 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.
Dated: June 8, 2011
/s/ Richard Mulligan
---------------------
Name: Richard Mulligan
ANNEX C
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Forest Laboratories, Inc. (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 LP ("Icahn Master II"), Icahn Partners
Master Fund III LP ("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 2011 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
The undersigned hereby consents to the disclosure of all information
relating to the undersigned as would be required to be disclosed in
solicitations of proxies for the election of the undersigned as a director
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, in any such solicitation made by the Company. The undersigned, if
elected, intends to tender, promptly following the undersigned's election or
reelection, an irrevocable resignation effective upon the undersigned's failure
to receive the required vote for reelection at the next meeting at which the
undersigned 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.
Dated: June 9, 2011
/s/ Lucian A. Bebchuk
-----------------------
Name: Lucian A. Bebchuk
ANNEX C
ATTACHMENT 4
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Forest Laboratories, Inc. (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 LP ("Icahn Master II"), Icahn Partners
Master Fund III LP ("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 2011 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
The undersigned hereby consents to the disclosure of all information
relating to the undersigned as would be required to be disclosed in
solicitations of proxies for the election of the undersigned as a director
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, in any such solicitation made by the Company. The undersigned, if
elected, intends to tender, promptly following the undersigned's election or
reelection, an irrevocable resignation effective upon the undersigned's failure
to receive the required vote for reelection at the next meeting at which the
undersigned 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.
Dated: June 8, 2011
/s/ Eric Ende
--------------
Name: Eric Ende
ANNEX D
Attached to this Annex D is the form of agreement to be entered into by the
Nominees (other than Dr. Denner) and an affiliate of the Record Holder pursuant
to which such affiliate has agreed to pay certain fees to such Nominees and to
indemnify such Nominees with respect to certain costs incurred by such Nominees
in connection with the proxy contest relating to the Annual Meeting.
ICAHN 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.
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:
EXHIBIT 3
HIGH RIVER LIMITED PARTNERSHIP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN PARTNERS LP
767 FIFTH AVENUE, 47TH FLOOR
NEW YORK, NY 10153
June 16, 2011
VIA FACSIMILE, EMAIL, BY HAND AND FEDERAL EXPRESS
-------------------------------------------------
Forest Laboratories, Inc.
909 Third Avenue
New York, NY 10022
Attention: Mr. Howard Solomon, Chairman and Chief Executive Officer
Herschel S. Weinstein, Esquire, General Counsel and Corporate
Secretary
Re: Inspection of Books and Records
-----------------------------------
Gentlemen:
High River Limited Partnership ("High River") is the record owner of 1000
shares of the common stock, ("Common Stock"), of Forest Laboratories, Inc., a
Delaware corporation (the "Corporation"). High River, Icahn Partners LP, Icahn
Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners
Master Fund III LP, are collectively described herein as the "Icahn Parties."
Including the 1000 record shares held by High River, the Icahn Parties
collectively are the beneficial holders of approximately 19.9 million shares of
Common Stock costing approximately $317,000,000, which they believe represents
approximately 6.95% of the outstanding Common Stock. The Icahn Parties have been
stockholders of the Corporation for approximately two years. Attached hereto as
Exhibit A are true and correct redacted copies of brokerage statements
evidencing the beneficial ownership of Common Stock by Icahn Partners Master
Fund LP, Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP and
Icahn Partners LP.
As common stockholders of the Corporation, the Icahn Parties hereby demand,
pursuant to Section 220 of the General Corporation Law of the State of Delaware
("Section 220") and the common law of the State of Delaware, the right to
inspect, no later than June 22, 2011, during normal business hours, the books
and records of the Corporation requested herein, and to make copies or abstracts
there from.
I. Purpose.
A. Factual Background.
-------------------
In January 2004, the United States Department of Justice ("DOJ") and the
United States Attorney's Office for the District of Massachusetts began an
investigation into marketing, sales, and other activities allegedly undertaken
by Forest Laboratories, Inc. (the "Company") in connection with Celexa, Lexapro,
and a formulation of Levothroid that the Company ceased distributing in 2003. In
September 2010, the Corporation announced that a subsidiary had pled guilty to
federal felony and misdemeanor charges relating to this investigation. The
announcement also revealed that the Corporation had paid various governmental
entities in excess of $300 million to settle related charges. Thereafter, the
Corporation announced that it had settled derivative suits against its board of
directors and certain of its officers, including Howard Solomon its CEO,
stemming from the situation, and it appeared from the information disclosed to
the shareholders that the Corporation had put this situation behind it. That,
appearance, however, was false. In fact, despite the settlement and guilty plea
something had caused the federal government to seek to change the Corporation's
management.
On April 13, 2011, the Company issued a press release, the material part of
which stated as follows:
NEW YORK, Apr 13, 2011 (BUSINESS WIRE) --
Forest Laboratories, Inc. (NYSE: FRX) today announced that Howard Solomon,
Chairman, Chief Executive Officer and President, will challenge a potential
action by the Office of the Inspector General, Department of Health and
Human Services (HHS-OIG), to exclude him from participation in federal
healthcare programs. Mr. Solomon was notified yesterday of the potential
action in a letter from HHS-OIG.
The potential action emanates from matters that were settled by Forest in
2010 with no finding of knowledge or wrongdoing by Mr. Solomon. The only
basis given in the letter notifying Mr. Solomon of the potential action is
that he is "associated with" Forest. The letter gives Mr. Solomon 30 days
to respond and say why he should not be excluded. Should HHS-OIG determine
after that that Mr. Solomon be excluded, unless the effectiveness of such
exclusion is enjoined by a court, Mr. Solomon would be required to step
down from his present executive positions. Mr. Solomon plans to commence
immediate litigation to prevent such exclusion from taking effect if
HHS-OIG determines to proceed.
Board member and Chairman of the Audit Committee William J. Candee III,
speaking on behalf of Forest's entire Board of Directors stated, "It would
be completely unwarranted to exclude a senior executive against whom there
has never been any allegation of wrongdoing whatsoever. Mr. Solomon has
always set a tone of the highest integrity from the top. At Mr. Solomon's
direction, the Company has significantly enhanced its sales force
monitoring and compliance procedures. We believe the potential HHS-OIG
action may well be beyond its legal authority."
Continued Mr. Candee, "At no time during the government's six year
investigation of Forest was Mr. Solomon ever accused of any wrongdoing in
connection with the matters settled in 2010. We are hopeful that HHS-OIG
will decide that the facts and circumstances as to Mr. Solomon do not
warrant an exercise of its exclusion authority."
Herschel S. Weinstein, Vice President and General Counsel stated, "Numerous
other major pharmaceutical companies have plead guilty to much more
egregious offenses, and none of them has faced the exclusion of a senior
executive who has not himself been convicted of a crime or pleaded guilty
to a crime. We believe that HHS-OIG is contemplating using a statute that
has never before been used under these circumstances and would be exceeding
the bounds of its authority."
Since the date that release was issued, the Corporation issued its Form
10-K for 2010. It expanded upon the statements of the press release:
"Mr. Howard Solomon, our Chairman, Chief Executive Officer and President,
has received a notice from the OIGHHS indicating its intent to consider
excluding Mr. Solomon from participating in federal healthcare programs.
This potential action by the OIGHHS emanates from matters that we settled
in 2010 with no finding of knowledge or wrongdoing by Mr. Solomon. Mr.
Solomon has until June 13, 2011 to respond to this notice explaining why he
should not be so excluded. Should the OIGHHS determine after such response
that Mr. Solomon should be excluded, Mr. Solomon would be required to step
down from his present executive positions unless the effectiveness of such
exclusion is enjoined by legal proceedings. Mr. Solomon plans to commence
litigation to prevent such exclusion from taking effect if OIGHHS
determines to proceed. We do not believe any such exclusion of Mr. Solomon
is warranted and will support legal actions to challenge any such
exclusion."
The Corporation's disclosures make three points clear: (1) the federal
government had brought criminal and civil charges against the Corporation for
claimed misconduct, and those charges were settled in September 2010; (2)
contrary to public statements made by the Corporation that settlement did not
resolve all outstanding issues and the federal government has now for reasons
not disclosed by the Corporation demanded Mr. Solomon, the Corporation's
Chairman, CEO and President, step down from those roles or the Corporation will
be barred from doing business with the United States Government; and (3) the
Corporation's board of directors fully supports Mr. Solomon in his battle with
the Government and has ordered the Corporation to back him in his fight.
The board's support of Mr. Solomon comes despite declining performance of
the Corporation over the past seven years. The price of the Common Stock peaked
in February 2004 at almost $76 per share. The current price is approximately $38
per share, which means that shareholder value has been essentially cut in half
during the last seven years. Analysts are predicting even further operational
slippage as key drugs come off patent without immediate replacements. Earnings
for the fiscal year ending March 31, 2011 were $4.41 per share; the mean
estimates for fiscal 2012 and 2013 are $3.68 and $1.21 per share respectively.
Top line revenue is predicted to decline from $4.42 billion to $3.38 billion
over the same period. From 2004 to the present a total of over $10 billion in
shareholder value has evaporated under the stewardship of Mr. Solomon and the
board and corporate performance is still heading downhill.
Although the stockholders have lost huge amounts of money, the board
ensured that Mr. Solomon greatly prospered over the same period. According to
the Corporation's disclosures, Mr. Solomon received almost $50 million in total
compensation from 2004-2010. And that number is conservative. In 2004-2005 the
Company reported two possible values for options grants, and the $50 million
number uses the lower of the two values for those years. If the higher figures
were used, the reported compensation amount would increase to almost $70
million. In addition, while the shareholders were suffering from large stock
declines, Mr. Solomon was selling. In February 2007 he sold 4.3 million shares
at an average price of $52.60 per share, for a total of approximately $226
million, although the board has since issued Mr. Solomon significant amounts of
new options and shares. In other words, Mr. Solomon cashed out much of his stake
in the Company just as tough times were beginning, and his present holdings
almost entirely consist of options or shares directly granted by the Corporation
or that resulted from the exercise of options granted by the Corporation.
B. Mr. Solomon's Curious Board.
----------------------------
The Government's action against Mr. Solomon is apparently unprecedented. It
appears that never before has the Government insisted that a chief executive
officer resign in order for a company to be allowed to continue to do business
with the Government. It is difficult to understand why a board would richly
reward a chief executive for the performance that Mr. Solomon has delivered over
the past seven years. It is even more difficult to understand how any board of
directors would risk a company to support a CEO with such a track record in a
confrontation with the Government.
The Corporation, however, does not have the type of board found at a
typical public company.r It currently has 9 directors, who-together with Mr.
Solomon and the rest of executive management-collectively own only approximately
3% of the Corporation's stock, and most of that stock has been received in the
forms of options or other stock grants. The directors have invested very little
of their own cash in the Corporation.
The following table lists the current directors, their positions with the
Corporation, their ages and length of tenure on the board.
DIRECTOR POSITION WITH FOREST AGE YEAR JOINED BOARD
-------- -------------------- --- -----------------
Howard Solomon Chairman and CEO 83 1964
(since 1977)
William J. Candee, III Co-Chairman; Audit 84 1959
Comm. Chair
George S. Cohan 87 1977
Dan L. Goldwasser 71 1977
Kenneth E. Goodman Former President and COO 63 1998
Lester B. Salans, MD 75 1998
Lawrence S. Olanoff, MD Just-Resigned President 59 2006
and COO
Nesli Basgoz, MD 53 2006
Peter J. Zimetbaum, MD 47 2009
As can be seen, three of the Corporation's directors have served on the
board with Mr. Solomon for over thirty years each, and all but one of the board
members were directors during the past years in which shareholder value was
vaporized and Mr. Solomon received large amounts of compensation. Overall, the
average length of board service of the directors is almost 23 years.
Given the directors' relatively small holdings of stock, extraordinary
average length of tenure on the board and habit of rewarding Mr. Solomon while
the stockholders suffered, the possibility obviously exists that many of the
directors cannot view Mr. Solomon's performance objectively. Thus, it would be
extremely difficult for them to not support Mr. Solomon in his fight with the
Government even if that fight is not in the Corporation's or stockholders' best
interests. Indeed, it is necessary to ask whether there has been a fundamental
failure of board leadership and supervision as the directors have put their
personal loyalty and friendship to Mr. Solomon above their fiduciary duties to
the Corporation and its stockholders.
If the Corporation's scant public disclosures are correct, the board has
now irrevocably committed to supporting Mr. Solomon in his battle against the
Government. Given that commitment, it is now up to the stockholders to decide if
these are the best directors to be the stewards of Forest Laboratories' fate at
this critical time. To make that decision, though, the stockholders need far
more information about what is going on and why it is occurring than they have
received. The Corporation's public disclosures about this affair have been
opaque, inaccurate and seemingly designed to reveal the least possible
information. The stockholders have not even been informed of the charges against
Mr. Solomon. Thus, the stockholders have been denied even the most basic
information necessary to determine whether the board is following a proper and
appropriate course in its dealings with the Government or whether it is risking
the Corporation to protect the CEO.
C. The Legal Standard and the Unanswered Questions.
------------------------------------------------
Section 220 permits the stockholders of a corporation to investigate
corporate mismanagement for the purposes of, among other things, "mounting a
proxy fight to elect new directors;" "bring[ing] corporate misconduct to light;"
or bringing litigation to redress wrongdoing, so long as there is a credible
basis to believe such wrongdoing or mismanagement occurred. Here there is no
doubt that there is a credible basis to believe that wrongdoing has occurred-a
corporate subsidiary has pled guilty to a felony, the Corporation paid over $300
million in fines and reimbursement and the Government is demanding that the
Chairman and CEO be removed from his offices.
The board's action in immediately supporting Mr. Solomon - despite his
track record over the past seven years - also raises a credible basis to believe
that it too engaged in mismanagement or wrongdoing as do the Corporation's
obfuscating and misleading public statements about the situation.
In deciding how the Corporation should be governed going forward the
stockholders need answers to the following fundamental but unanswered questions.
First, what has the Government told the Corporation about why it is seeking
such an unprecedented remedy against Mr. Solomon and why did the September
settlement not resolve all such matters?
Second, why did the board immediately back Mr. Solomon? The press release
that stated that the board was backing him was issued only one day after the
Corporation purportedly was informed of the issue, which implies either that the
Corporation was already aware of the possibility that the Government might take
action against Mr. Solomon but did not disclose that to the stockholders or that
the board acted with very little information and even less time to consider the
import of what it was doing in publicly backing Mr. Solomon.
Third, does the Corporation in fact have adequate grounds to contest the
Government's actions here?
Fourth, regardless of the background facts is it actually in the interest
of the Corporation and all of its stockholders to fight the Government under
these circumstances? Is Mr. Solomon, whose last seven years of stewardship has
resulted in a drop in shareholder value of 50%, really so critical to the
success of the Corporation that it justifies the risks the board is taking?
Finally, is this board so compromised or complicit with regard to Mr.
Solomon that it has become potentially liable for its own violations of duty?
D. Why the Icahn Parties Need to Review the Documents.
---------------------------------------------------
As long-term stockholders, the Icahn Parties believe that this is an
intolerable situation that is patently unfair to the Corporation's stockholders.
As the Corporation is aware, pursuant to the Corporation's by-laws the Icahn
Parties have delivered the necessary papers to nominate alternative directors at
the Corporation's annual meeting, which should be held in approximately August
2011. The purpose of this demand is:
(1) to enable the Icahn Parties to review the information requested below
and, if appropriate, to share it with their fellow stockholders in connection
with the 2011annual meeting of stockholders, and to use such information to
support the election of directors nominated by the Icahn Parties in opposition
to the Corporation's slate of directors;
(2) to help the Icahn Parties determine which among the directors are the
least independent and engaged so that the Icahn Parties might seek to replace
those directors and retain the members of the board who are best suited to help
manage the Corporation going forward;
(3) to determine whether the board breached its duties to the Corporation
and its stockholders when it determined to support Mr. Solomon in his personal
fight with the Government; and
(4) to determine whether litigation should be brought on behalf of the
Corporation and/or its stockholders against Mr. Solomon and members of the board
of directors.
II. Documents Requested.
The Icahn Parties therefore request the Corporation to produce to them the
following documents:
a) The HHS-OIG letter referred to in the press release quoted above
that was delivered to the Corporation on or about April 12, 2011
and any other documents from HHS-OIG or counsel for the
government in this matter dealing with Mr. Solomon, and any
responses by Mr. Solomon or the Corporation thereto.
b) Any document indicating that the Corporation was aware of the
possibility that HHS-OIG (or other governmental agency) might
seek such a, or similar, sanction against Mr. Solomon prior to
April 12, 2011 (including any prior correspondence with HHS-OIG
or its counsel relating to such subject).
c) All documents provided to the board of directors or a committee
thereof on this subject.
d) All board or committee minutes in which this subject is
discussed, including any minutes, resolutions or consents
pursuant to which the board or any committee thereof concluded
that it did not believe any such exclusion of Mr. Solomon [wa]s
warranted and w[ould] support legal actions to challenge any such
exclusion.
The undersigned will bear the reasonable costs incurred by the Corporation
in connection with the production of the above information.
* * *
The undersigned hereby authorizes Stephen Jenkins, Esq. and Richard D.
Heins, Esq. of Ashby & Geddes, Wilmington, DE and their respective partners,
associates, employees and any other persons designated by Stephen Jenkins or
Richard D. Heins, acting together, singly or in combination, to conduct, as
their agents, the inspection and copying requested herein and otherwise act on
behalf of the undersigned pursuant to the attached power of attorney. Please
advise the undersigned's counsel, Marc Weitzen, at (212) 702-4388, or Mark
DiPaolo at (212) 702-4361 as promptly as practicable when and where the items
demanded above will be made available to the undersigned. Please also advise
Marc Weitzen or Mark DiPaolo immediately whether you voluntarily will supply the
requested information.
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general
partner
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II L.P.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III L.P.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
SWORN TO AND SUBSCRIBED
before me this 16th day of June 2011
/s/ Notary Public
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Notary Public