SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the
Registrant
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Preliminary Proxy Statement
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Definitive Proxy Statement
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Soliciting Material Pursuant to § 240.14a-12
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FOREST LABORATORIES, INC.
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(Name of Registrant as Specified In Its Charter)
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MR. CARL C. ICAHN
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROF. LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
MAYU SRIS
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III
L.P.
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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2011 ANNUAL MEETING OF STOCKHOLDERS
OF
FOREST
LABORATORIES, INC.
PROXY STATEMENT
DATED JULY 19, 2011
OF
CARL C. ICAHN
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROFESSOR LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
MAYU SRIS
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.
To Our Fellow Forest
Laboratories Stockholders:
This Proxy Statement and the accompanying
GOLD
proxy card are being furnished to
Stockholders (
Stockholders
) of Forest Laboratories, Inc., 909 Third Avenue, New York, New York 10022 (
Forest Laboratories
, the
Corporation
or the
Company
) in connection with
the solicitation of proxies by Carl C. Icahn and the Participants (as hereinafter defined), to be used at the 2011 Annual Meeting (the
Annual Meeting
) of Stockholders of Forest Laboratories which is scheduled to be held at
JPMorgan Chase & Co., 270 Park Avenue, New York, NY 10017, on August 18, 2011, at 10:00 a.m., and at any adjournments, postponements or continuations thereof. This Proxy Statement and the
GOLD
proxy card are first being
furnished to Stockholders on or about July 19, 2011.
At the Annual Meeting, the Participants will seek to elect to the Board of Directors
(
Board
) of Forest Laboratories the following persons (each a
Nominee
and collectively, the
Nominees
):
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROFESSOR LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
The Icahn Parties (as hereinafter defined) believe that
the Nominees have impressive qualifications and that their experience, including on other pharma boards, would be extremely beneficial to Forest Laboratories and, therefore, its stockholders. Dr. Denner has an accomplished record in improving
the operations, research and development of biotech companies. Dr. Mulligan is an internationally known expert in genetics and gene therapy. Professor Bebchuk is a Professor of Law, Economics, and Finance and Director of the Program on
Corporate Governance at Harvard Law School. He is one of the nations leading corporate governance experts. Dr. Ende is a successful analyst and consultant with extensive financial expertise and a strong understanding of the pharmaceutical
industry. The Icahn Parties believe that the Nominees knowledge of science, medicine, corporate governance, finance and business will significantly improve the science, corporate governance and business expertise of the Board of Directors of
the Corporation. The Icahn Parties also believe that each Nominee is a strong stockholder-oriented individual who will help represent the best interests of the Corporations stockholders.
The Icahn Parties believe that recent events concerning Forest Laboratories, together with the declining performance of its shares over
the past 7 years and the anticipated decline in Forest Laboratories results of operations due to the loss of patent protection on Lexapro, its most significant drug, also warrant a change in the composition of the Companys board of
directors. The share price of Forest Laboratories Common Stock was $75.48 per share in February 2004. The closing share price on July 18, 2011 was $37.95 per share. This represents a decline in the price of Forest Laboratories
Common Stock of approximately 49.7% over the past 7 years. In addition, according to Forest Laboratories Form 10-K for the fiscal year ended March 31, 2011, under Risk Factors, [Forest Laboratories is] Substantially Dependent on
Sales of Two of Our Principal Products, Lexapro accounted for 55% of Forest Laboratories net sales in 2011 and with the expiration of the patent for Lexapro in March 2012, the Company will face generic competition, which [Forest
Laboratories expects] will immediately and significantly erode sales of Lexapro going forward. According to a Form 8-K filed by Forest Laboratories on April 20, 2011, earnings per share was $3.59 for the fiscal year ending March 31,
2011 and Forest Laboratories expects diluted earnings per share to be in a range of $3.60 to $3.70 for the fiscal year ending March 31, 2012 and not less than $1.20 per share for the fiscal year ending March 31, 2013.
The Icahn Parties believe that the experience of their nominees, including experience on boards of other pharmaceutical companies, will
be extremely beneficial to Forest Laboratories and, therefore, its stockholders.
Additionally, in 2010, the Company disclosed
that it pled guilty to a felony and misdemeanor charges and paid in excess of $300 million to settle claims brought against it by the US Department of Justice and US Attorneys Office. The Company stated that these matters were resolved.
However, this proved not to be the case. On April 13, 2011, the Company publicly disclosed that on April 12, 2011, Mr. Howard Solomon, the longtime Chairman and CEO of the Company, was notified by the Office of the Inspector General,
Department of Health and Human Services (the
OIG-HHS
) that the OIG-HHS was commencing an action to exclude him from participating in federal healthcare programs based on the matters that the Company previously disclosed were
settled. The Company stated that should the OIGHHS ultimately determine that Mr. Solomon should be excluded, Mr. Solomon would be required to step down as an officer of the Company unless his exclusion is enjoined by legal
proceedings. The Company also disclosed on that same day (just one day after receiving the notification from the OIG-HHS) that Mr. Solomon plans to commence litigation to prevent any such exclusion and that the Company will support such
litigation by Mr. Solomon. The Company indicated that it believes that these actions by the OIGHHS are unprecedented.
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Each of our Nominees has consented to being named in this Proxy Statement and, if elected,
to serve as a director.
Under the proxy rules we may only solicit proxies for our Nominees, which would result in limiting
the ability of Stockholders that would like to vote for our Nominees to fully exercise their voting rights to vote for up to a full complement of ten directors. Alternatively, we may solicit proxies in support of our Nominees and also seek authority
to vote for all of the Forest Laboratories nominees other than those Forest Laboratories nominees we specify. This would enable a Stockholder who desires to vote for up to a full complement of ten director nominees to use the
GOLD
proxy card
to vote for our Nominees as well as the Forest Laboratories nominees for whom we are seeking authority to vote other than those nominees as to which the Stockholder specifically withholds our authority to vote for.
We have determined to
nominate a slate of four Nominees, Dr. Denner, Dr. Mulligan, Professor Bebchuk and Dr. Ende and are seeking authority to vote for all of the Forest Laboratories nominees other than Howard Solomon, Dan L. Goldwasser, Kenneth E. Goodman
and Lester B. Salans.
As a result, should a Stockholder so authorize us, on the
GOLD
proxy card, we would cast votes for our four Nominees and six Forest Laboratories nominees. None of the Forest Laboratories nominees for whom we seek
authority to vote have agreed to serve with any of our Nominees, if elected.
THE PARTICIPANTS URGE YOU TO VOTE THE
GOLD
PROXY CARD FOR DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK AND DR. ERIC J. ENDE AS DIRECTORS.
The Nominees and each of the other Participants have no interest in Forest Laboratories other than through the beneficial ownership (if any) of shares of Common Stock, par value $0.10 per share, of Forest
Laboratories (the
Common Stock
) or other securities (if any) of Forest Laboratories, except as disclosed herein, including the Annexes hereto, and in the case of each of Dr. Mulligan, Professor Bebchuk and Dr. Ende,
pursuant to an agreement in which certain affiliates of Carl C. Icahn have agreed to pay each of Dr. Mulligan, Professor Bebchuk and Dr. Ende $25,000 and to indemnify such Nominee with respect to certain costs incurred by each such Nominee
in connection with the proxy contest relating to the Annual Meeting (the
Nominee Agreement
) and in the case of Dr. Denner, through his profit interests in the shares of Common Stock held by the Icahn Parties and their
affiliates as described herein.
DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK AND DR. ERIC J.
ENDE ARE COMMITTED TO ACTING IN THE BEST INTEREST OF ALL STOCKHOLDERS OF FOREST LABORATORIES. THE PARTICIPANTS URGE YOU TO VOTE YOUR
GOLD
PROXY CARD FOR DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK AND DR. ERIC
J. ENDE.
3
IMPORTANT
According to Forest Laboratories Proxy Statement, the Bylaws and applicable law, the election of the Nominees requires the affirmative vote of a plurality of the votes cast by the holders of Forest
Laboratories Common Stock at a meeting at which a quorum is present in person or represented by proxy. As a result, your vote is extremely important. We urge you to mark, sign, date, and return the enclosed
GOLD
proxy card to vote
FOR
the election of each Nominee.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY FOREST LABORATORIES. IF YOU
HAVE ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED
GOLD
PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, EXECUTING A VOTE VIA INTERNET OR TELEPHONE, OR BY VOTING IN PERSON AT THE ANNUAL MEETING. SEE VOTING
PROCEDURES AND PROXY PROCEDURES BELOW.
If you attend the Annual Meeting and you beneficially own shares of
Common Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT
be sufficient to cancel your prior given proxy card. You must have written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in this Proxy Statement for assistance or if you have any questions.
If you have any questions or require any assistance in executing your proxy, please call:
D.F. King & Co., Inc.
Stockholders call toll-free:
(800) 697-6975
Banks and Brokers call collect: (212) 269-5550
The Proxy Statement, as well as other proxy materials distributed by the Participants, are available free of charge online at
www.dfking.com/frx.
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Only holders of record of Forest Laboratories Common Stock as of the close of business
on June 24, 2011 (the
Record Date
) are entitled to notice of, and to attend and to vote at, the Annual Meeting and any adjournments or postponements thereof. According to the proxy statement of Forest Laboratories filed with
the Securities and Exchange Commission (
Forest Laboratories Proxy Statement
) for the Annual Meeting, as of the Record Date, there were outstanding 276,457,485 shares of Common Stock. Stockholders of record at the close of
business on the Record Date will be entitled to one vote at the Annual Meeting for each share of Common Stock of Forest Laboratories held on the Record Date.
As of the Record Date, the Participants and their affiliates beneficially owned an aggregate of 19,895,841 shares of Common Stock, representing approximately 7.2% of the outstanding shares of Common
Stock. The Participants and their affiliates intend to vote such shares of Common Stock
FOR
the election of the Nominees.
VOTE FOR THE NOMINEES BY USING THE ENCLOSED
GOLD
PROXY TO VOTE TODAY BY TELEPHONE, BY INTERNET, OR BY MARKING, SIGNING, DATING AND RETURNING THE
GOLD
PROXY CARD IN THE POSTAGE-PAID
ENVELOPE PROVIDED TO YOU.
Participants in Solicitation of Proxies
In addition to the Nominees (who are Dr. Alexander J. Denner, Dr. Richard Mulligan, Professor Lucian A. Bebchuk and
Dr. Eric J. Ende), the participants in the solicitation of proxies (the
Participants
) from Stockholders of Forest Laboratories include the following: Carl C. Icahn, a citizen of the United States, Mayu Sris, a citizen of
the United States, High River Limited Partnership, a Delaware limited partnership (
High River
), Hopper Investments LLC, a Delaware limited liability company (
Hopper
), Barberry Corp., a Delaware corporation
(
Barberry
), Icahn Partners LP, a Delaware limited partnership (
Icahn Partners
), Icahn Partners Master Fund LP, a Cayman Islands limited partnership (
Icahn Master
), Icahn Partners Master Fund
II L.P., a Cayman Islands limited partnership (
Icahn Master II
), Icahn Partners Master Fund III L.P., a Cayman Islands limited partnership (
Icahn Master III
), Beckton Corp., a Delaware corporation
(
Beckton
), Icahn Enterprises G.P. Inc., a Delaware corporation (
Icahn Enterprises GP
), Icahn Enterprises Holdings L.P., a Delaware limited partnership (
Icahn Enterprises Holdings
), IPH GP LLC,
a Delaware limited liability company (
IPH
), Icahn Capital LP, a Delaware limited partnership (
Icahn Capital
), Icahn Onshore LP, a Delaware limited partnership (
Icahn Onshore
) and Icahn
Offshore LP, a Delaware limited partnership (
Icahn Offshore
).
Icahn Partners, Icahn Master, Icahn Master
II, Icahn Master III and High River (collectively, the
Icahn Parties
), are entities controlled by Mr. Carl C. Icahn. Dr. Denner is an employee and/or officer and/or director of the Icahn Parties and various other
entities controlled by Mr. Icahn, who will participate in soliciting proxies from Forest Laboratories Stockholders. Except as described herein, Dr. Denner does not own beneficially any interest in securities of Forest Laboratories
and Dr. Denner will not receive any special compensation in connection with such solicitation. In connection with his employment by Mr. Icahn and his affiliated companies, Dr. Denner, among other employees, had a participatory
interest in, among other things, the profits and fees derived by Mr. Icahn and/or his affiliates from Icahn Partners, Icahn Masters, Icahn Master IIs and Icahn Master IIIs ownership of the shares of Common Stock. In the
aggregate, Dr. Denners profit interests and capital accounts of Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III entitled him to less than 2% of the profits generated by such entities ownership of the shares of
Common Stock. The foregoing with respect to the shares of Common Stock has been superseded by the following as of June 10, 2011: Dr. Denner has a participatory interest in the profits attributable to the shares of Common Stock beneficially
owned by the Icahn Parties and their affiliates equal to 5% of an amount equal to (x) such profits minus (y) an amount equal to a return of 8% per annum, compounded annually, on the Icahn Parties and their affiliates
investment in the shares of Common Stock. From February 2005 to January 2010, Mayu Sris was employed by the Icahn Parties as an investment analyst. Effective as of July 5, 2011, Icahn Capital engaged Mr. Sris as a consultant in connection
with the solicitation of proxies at the Annual Meeting and matters relating thereto. Mr. Sris does not, and his associates do not, own, beneficially or of record, any shares of capital stock of the Corporation. The business address of
Mr. Sris is c/o Icahn Associates Corp, 767 Fifth Avenue, Suite 4700, New York, NY 10153.
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Annex A attached hereto sets forth, as to the Nominees and the other Participants, all
transactions in securities of Forest Laboratories effected during the past two years and their beneficial ownership of securities of Forest Laboratories.
With respect to each Participant (including the Nominees), except as set forth herein or in any of the Annexes attached hereto, (i) such Participant is not, nor was within the past year, a party to
any contract, arrangement or understanding with any person with respect to any securities of Forest Laboratories, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of
profit, division of losses or profits, or the giving or withholding of proxies; and (ii) neither such Participant nor any of such Participants associates have any arrangement or understanding with any person with respect to (A) any
future employment by Forest Laboratories or its affiliates or (B) any future transactions to which Forest Laboratories or any of its affiliates will or may be a party.
PROPOSAL 1 ELECTION OF DIRECTORS
Article I, Section 6, of
Forest Laboratories Amended and Restated Bylaws provides that nominations of persons for election to the Board of Directors of the Corporation may be made
by any stockholder of the Corporation who was a stockholder of record at the
time of giving of notice provided for in this Bylaw, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Bylaw. On June 10, 2011, High River, a record holder of Common Stock, delivered
timely notice in accordance with the foregoing, notifying Forest Laboratories that High River intends to nominate and will seek to elect at the Annual Meeting Dr. Alexander J. Denner, Dr. Richard Mulligan, Professor Lucian A. Bebchuk
and Dr. Eric J. Ende as members of the board of directors of Forest Laboratories. Each Nominee, if elected, would serve a one-year term and hold office until the 2012 annual meeting of Stockholders and until a successor has been duly
elected and qualified. Background information about each of the Nominees is set forth below and the Annexes attached hereto.
According to Forest Laboratories Proxy Statement, the Board of Forest Laboratories intends to nominate ten candidates for election
as directors at the Annual Meeting. This Proxy Statement is soliciting proxies to elect Dr. Alexander J. Denner, Dr. Richard Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende
,
and to enable Stockholders to
vote for the Forest Laboratories nominees other than Howard Solomon, Dan L. Goldwasser, Kenneth E. Goodman and Lester B. Salans. Therefore, should a Stockholder so authorize us, we will cast votes for our four Nominees and the six Forest
Laboratories nominees who are not Howard Solomon, Dan L. Goldwasser, Kenneth E. Goodman and Lester B. Salans. None of such Forest Laboratories nominees for whom we seek authority to vote have agreed to serve with any of our Nominees, if elected.
If elected, the Nominees will be a minority of the directors and will not alone be able to adopt resolutions. However, the
Nominees expect to be able to actively engage other Board members in full discussion of the issues facing the Company and resolve them together. By utilizing their respective experiences and working constructively with Board members, the Nominees
believe they can effect positive change at the Company.
Mr. Icahn has an interest in the election of directors at the
Annual Meeting indirectly through the beneficial ownership of securities, as further described in Annex A. Dr. Richard Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende are each party to a Nominee Agreement, substantially in
the form attached hereto as Annex B, pursuant to which Icahn Capital has agreed to pay certain fees to each such Nominee and to indemnify each such Nominee with respect to certain costs incurred by each such Nominee in connection with the proxy
contest relating to the Annual Meeting. Except as disclosed in this Proxy Statement, including the Annexes attached hereto and as provided in the Nominee Agreement (which, among other things, provides for a payment to each of Dr. Richard
Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende of $25,000), none of the Nominees will receive any compensation from any of the Participants or any of their affiliates in connection with this proxy solicitation. Dr. Richard
Mulligan, Professor Lucian A. Bebchuk and Dr. Eric J. Ende have an interest in the election of directors at the Annual Meeting pursuant to the Nominee Agreement. Dr. Denner has an interest in the election of directors at the Annual
Meeting indirectly through his profit interests in the shares of Common Stock
6
held by the Icahn Parties as follows: Dr. Denner has a participatory interest in the profits attributable to the shares of Common Stock beneficially owned by the Icahn Parties and their
affiliates equal to 5% of an amount equal to (x) such profits minus (y) an amount equal to a return of 8% per annum, compounded annually, on the Icahn Parties and their affiliates investment in the shares of Common Stock.
The Nominees would not be barred from being considered independent under the independence requirements of the New York Stock
Exchange and the independence standards applicable to Forest Laboratories under paragraph (a)(1) of Item 407 of Regulation S-K under the Securities Exchange Act of 1934, as amended.
DR. ALEXANDER J. DENNER
, age 41
Dr. Denners principal
occupation is serving as Managing Director of entities affiliated with Carl C. Icahn, including Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III (collectively, the
Funds
). The Funds are private investment funds.
Dr. Denner has served in this position since August 2006. From April 2005 to May 2006, Dr. Denner served as a portfolio manager specializing in healthcare investments for Viking Global Investors. Previously, he served in a variety of roles
at Morgan Stanley, beginning in 1996, including as portfolio manager of healthcare and biotechnology mutual funds. Dr. Denner was the chairman of the Executive Committee of the Board of Directors of ImClone Systems Incorporated, a publicly
traded biopharmaceutical company, and a director of ImClone Systems Incorporated from April 2006 until the company was purchased in December 2008. He served on the Board of Adventrx Pharmaceuticals Inc., a publicly traded biopharmaceutical company
from October 2006 to October 2009. In addition, Dr. Denner has served as a director of Biogen Idec Pharmaceuticals, a publicly traded biopharmaceutical company from June 2009 until the present; as a director of Amylin Pharmaceuticals, Inc., a
publicly traded biopharmaceutical company from June 2009 until the present; and as a director of Enzon Pharmaceuticals, a publicly traded biopharmaceutical company from May 2009 until the present; and as Chairman of the Board of Directors of Enzon
Pharmaceuticals from July 2009 until the present. Dr. Denner received his S.B. degree from the Massachusetts Institute of Technology and his M.S., M.Phil., and Ph.D. degrees from Yale University. Except as described herein, Dr. Denner does
not, and his associates do not, own, beneficially or of record, any shares of capital stock of the Corporation. The business address of Dr. Denner is c/o Icahn Associates Corp, 767 Fifth Avenue, Suite 4700, New York, NY 10153.
Based upon Dr. Denners experience of overseeing the operations, research and development of biopharmaceutical companies;
service on boards of biopharmaceutical companies; financial background, including with respect to pharma companies; and education, the Icahn Parties believe that Dr. Denner has the requisite set of skills to serve as a Board member of Forest
Laboratories.
DR. RICHARD MULLIGAN
, age 56
Dr. Mulligans 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 Childrens Hospital and Harvard in 1996. His honors include
the MacArthur Foundation Prize, the Rhodes Memorial Award of the American Association for Cancer Research, the ASMB-Amgen Award, and the Nagai Foundation International Prize.
Dr. Mulligan served as a director of ImClone System Incorporated, a publicly traded biopharmaceutical company, from September 2006 until November 2008, and as a member of Scientific Advisory Board
and Executive Committee. In addition, Dr. Mulligan has served as a director of Biogen Idec Inc., a publicly traded biopharmaceutical company from June 2009 until the present; as a director of Enzon Pharmaceuticals, a publicly traded
biopharmaceutical company from May 2009 until the present; and as a director of Cellectis SA, a biotechnology company which specializes in genome engineering, since 2007. He has also served on the National
7
Institutes of Healths Recombinant DNA Advisory Committee and on the U.S. Food and Drug Administration Biological Response Modifiers Advisory Committee. Dr. Mulligan does not, and his
associates do not, own, beneficially or of record, any shares of capital stock of the Corporation. Dr. Mulligans business address is Harvard Institutes of Medicine, Rm 407, 4 Blackfan Circle, Boston, Massachusetts 02115.
Based upon Dr. Mulligans expertise in genetics and gene therapy; experience in overseeing the operations, research and
development of biopharmaceutical companies; service on boards of biotechnology and/or biopharmaceutical companies; and his education, the Icahn Parties believe that Dr. Mulligan has the requisite set of skills to serve as a Board member of
Forest Laboratories.
PROF. LUCIAN A. BEBCHUK
, age 55
Professor Bebchuks 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 nations 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 Bebchuks 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 worlds largest producer of
nickel and palladium. He was included in the list of 100 most influential players in corporate governance of
Directorship
, the 100 most influential people in finance of
Treasury & Risk Management
, and
the list of top-10 governance stars of
Global Proxy Watch
. Professor Bebchuk served as President of the American Law and Economics Association and Chair of the Business Association Section of the American Association of Law
Teachers. He is a Vice-President of the Western Economics Association International and the founding Director of the SSRN Corporate Governance Network. Professor Bebchuk does not, and his associates do not, own, beneficially or of record, any shares
of capital stock of the Corporation. Professor Bebchuks business address is c/o Harvard Law School, 1545 Massachusetts Avenue, Cambridge, Massachusetts 02138.
Based upon Professor Bebchuks expertise in corporate governance and finance; and his education, the Icahn Parties believe that Professor Bebchuk has the requisite set of skills to serve as a Board
member of Forest Laboratories.
Dr. ERIC J. ENDE
, age 43
Dr. Endes 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. Endes career as a biotechnology analyst, he was named to Institutional Investors AllAmerica Equity
8
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 Universitys Stern Business School in 1997, an M.D. from
Mount Sinai School of Medicine in 1994, and a B.S. in Biology and Psychology from Emory University in 1990. Dr. Ende does not, and his associates do not, own, beneficially or of record, any shares of capital stock of the Corporation.
Dr. Endes business address is 6231 PGA Blvd, STE 104-161, Palm Beach Gardens, FL 33418.
Based upon
Dr. Endes extensive financial expertise and a strong understanding of the pharmaceutical industry, as well as his service on another board, and his education, the Icahn Parties believe that Dr. Ende has the requisite set of skills to
serve as a Board member of Forest Laboratories.
Drs. Denner and Mulligan currently serve on the Board of Directors of Biogen
Idec Inc. (Biogen) and Enzon Pharmaceuticals, Inc. (Enzon). Drs. Denner and Mulligan were elected to the Board of Directors of Biogen Idec Inc. at the 2009 Annual Meeting of Stockholders following their nomination by entities
affiliated with Mr. Icahn. In January 2009, representatives of Mr. Icahn and his affiliated entities suggested Drs. Denner and Mulligan as potential directors to the Board of Directors of Enzon. Drs. Denner and Mulligan were subsequently
nominated on Enzons board slate of directors and elected at the 2009 Annual Meeting of Stockholders.
Drs. Denner,
Mulligan and Mr. Icahn served together on the Board of Directors of ImClone Systems Incorporated (ImClone). Following discussions in April 2006 between ImClone and Mr. Icahn, a then stockholder of ImClone, Dr. Denner, who
was not then employed by affiliated entities of Mr. Icahn, was appointed to the board of ImClone. In August 2006, representatives of ImClone offered to nominate on managements slate of directors, Mr. Icahn, Dr. Denner, then an
employee of entities affiliated with Mr. Icahn, and two persons recommended to ImClone by Mr. Icahn, including Dr. Richard Mulligan, and all of such nominees were subsequently elected at the 2006 Annual Meeting of Stockholders.
Dr. Ende provided consulting services to Mr. Icahn and certain affiliated entities in connection with the proxy
contest conducted by Mr. Icahn and such affiliates in respect of Genzyme Corporation, Amylin Pharmaceuticals, Inc. and Biogen Idec Inc. In 2010, Dr. Ende was nominated to the board of Genzyme Corporation at the suggestion of
Mr. Icahn.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROFESSOR
LUCIAN A. BEBCHUK AND DR. ERIC J. ENDE BY MARKING, SIGNING, DATING AND RETURNING THE ENCLOSED
GOLD
PROXY CARD IN THE POSTAGE PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT OR BY USING THE
GOLD
PROXY CARD TO VOTE BY TELEPHONE
OR INTERNET. IF YOU HAVE SIGNED THE
GOLD
PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES OF COMMON STOCK REPRESENTED BY THE
GOLD
PROXY CARD FOR THE ELECTION OF DR. ALEXANDER J.
DENNER, DR. RICHARD MULLIGAN, PROFESSOR LUCIAN A. BEBCHUK AND DR. ERIC J. ENDE AND THE FOREST LABORATORIES NOMINEES OTHER THAN HOWARD SOLOMON, DAN L. GOLDWASSER, KENNETH E. GOODMAN AND LESTER B. SALANS.
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Forest Laboratories Proxy Statement, Forest Laboratories is soliciting proxies with respect to three other proposals. Please refer to Forest Laboratories Proxy Statement for a
detailed discussion of these proposals. These proposals are outlined below. IF YOU HAVE SIGNED THE
GOLD
PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL OF THE SHARES OF COMMON STOCK REPRESENTED BY
YOUR
GOLD
PROXY CARD AGAINST PROPOSAL 2, FOR 1 YEAR ON PROPOSAL 3 AND FOR PROPOSAL 4.
9
PROPOSAL 2 ADVISORY VOTE ON EXECUTIVE COMPENSATION (SAY-ON-PAY VOTE)
According to Forest Laboratories Proxy Statement, the Company will also solicit proxies with respect to a proposal for the
Stockholders to approve, on an advisory basis, the compensation of the Named Executive Officers, as disclosed in Forest Laboratories Proxy Statement pursuant to the compensation disclosure rules of the Securities and Exchange Commission,
including the Compensation Discussion and Analysis, the 2011 Summary Compensation Table and the tabular disclosure regarding such compensation and the accompanying narrative disclosure. Please refer to the Forest Laboratories Proxy Statement
for a discussion of such proposal. The Participants intend to vote, and recommend that you vote, AGAINST this proposal.
PROPOSAL 3 ADVISORY VOTE ON THE FREQUENCY OF AN ADVISORY VOTE ON THE COMPENSATION OF THE COMPANYS NAMED EXECUTIVE OFFICERS
(SAY-WHEN-ON-PAY VOTE)
According to Forest Laboratories Proxy Statement, the Company will also solicit proxies
with respect to a proposal for Stockholders to express a preference as to how frequently future advisory votes on executive compensation should take place one, two or three years. Please refer to the Forest Laboratories Proxy Statement
for a discussion of such proposal. The Participants intend to vote, and recommend that you vote for 1 YEAR as the frequency for future advisory votes on the compensation of the Companys named executive officers.
PROPOSAL 4 RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
According to Forest Laboratories Proxy Statement, the Company will also solicit proxies with respect to a proposal for Stockholders
to ratify the selection of BDO USA, LLP to audit the financial statements of the Company for the fiscal year ending March 31, 2012. Please refer to the Forest Laboratories Proxy Statement for a discussion of such proposal. The
Participants intend to vote, and recommend that you vote, FOR this proposal.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be presented at the Annual Meeting. If any other matters should
properly come before the Annual Meeting, it is intended that the persons named on the enclosed
GOLD
proxy card will vote that proxy on such other matters in accordance with their judgment.
VOTING PROCEDURES
According to Forest Laboratories Proxy Statement, the Bylaws and applicable law, holders of shares of Forest Laboratories
Common Stock, at the close of business on the Record Date are entitled to notice of, and to vote at, the Annual Meeting. Each share of Common Stock outstanding on the Record Date is entitled to one vote on each matter presented at the Annual
Meeting.
According to Forest Laboratories Proxy Statement, the Bylaws and applicable law, a nominee for director will
be elected to the Companys Board of Directors if the votes cast for such nominees election exceed the votes cast against such nominees election; provided, however, that directors will be elected by a plurality of the votes cast at
any meeting of stockholders for which (i) the Secretary of the Company receives a notice that a stockholder has nominated a person for election to the Board of Directors in compliance with the Companys Bylaws and (ii) such nomination
has not been withdrawn by such stockholder on or before the tenth day before the Company first mails its notice of meeting for such meeting to the Stockholders. Plurality means that the individuals who receive the largest number of votes cast are
elected as directors, up to the maximum number of directors to be chosen at the meeting. Consequently, any shares of Common Stock not voted (whether by abstention, broker nonvote or otherwise) have no impact in the election of directors.
10
A quorum must be present, in person or by proxy, in order for the Company to hold the Annual
Meeting. A quorum is the presence by person or by proxy of a majority of the shares of Common Stock issued and outstanding and entitled to vote at the Annual Meeting. The shares of Common Stock represented by a proxy marked withhold or
abstain and broker non-votes (as described below) will be considered present at the Annual Meeting for purposes of determining a quorum.
BROKER NON-VOTES
If you hold your shares of Common Stock through a bank,
broker or other nominee and do not provide voting instructions to the record holder of the shares of Common Stock, your shares of Common Stock will not be voted on any proposal on which your broker or nominee does not have discretionary authority to
vote. In this case, a broker non-vote occurs. Shares of Common Stock constituting broker non-votes are not counted or deemed to be present or represented for the purpose of determining whether Stockholders have approved a matter, but
they are counted as present for the purpose of determining a quorum at the Annual Meeting.
The election of directors at the
Annual Meeting is a non-routine matter and brokers do not have discretionary authority to vote your shares of Common Stock on non-routine matters. Therefore, unless you provide specific voting instructions to your broker,
your broker will not have discretionary authority to vote your shares of Common Stock for the election of directors at the Annual Meeting and your shares of Common Stock will not be voted for the election of directors. If your shares of Common Stock
are held in street name, your broker or nominee has enclosed a voting instruction card with this Proxy Statement. We strongly encourage you to vote your shares of Common Stock by following the instructions provided on the voting instruction card.
According to Forest Laboratories Proxy Statement, the Bylaws and applicable law, the Stockholder vote on Proposal 2
ADVISORY VOTE ON EXECUTIVE COMPENSATION (SAYONPAY VOTE) is advisory and will not be binding on the Companys Board. However, in order to be approved on an advisory basis, this proposal must receive the FOR
vote of a majority of the shares present in person or by proxy and entitled to vote on the matter. Abstentions will therefore have the same effect as a vote against the proposal. Brokers are not entitled to vote on such proposals in the absence of
voting instructions from the beneficial owner. Therefore, broker non-votes will have no effect on this proposal.
According to
Forest Laboratories Proxy Statement, the Bylaws and applicable law, the Stockholder vote on Proposal 3 ADVISORY VOTE ON THE FREQUENCY OF AN ADVISORY VOTE ON THE COMPENSATION OF THE COMPANYS NAMED EXECUTIVE OFFICERS
(SAYWHENONPAY VOTE) is advisory and will not be binding on the Companys Board. If none of the frequency alternatives (one year, two years or three years) receives a majority vote, the Company has disclosed that it will
consider the frequency that receives the highest number of votes by stockholders to be the frequency that has been selected by stockholders. However, the Company disclosed that because this vote is advisory and not binding on the Company or its
Board in any way, its Board may decide that it is in the Companys and its stockholders best interests to hold an advisory vote on executive compensation more or less frequently than the alternative selected by the Stockholders.
Abstentions and broker nonvotes will not be counted as expressing any preference and will therefore have no effect on the outcome of this proposal. Brokers are not entitled to vote on such proposals in the absence of voting instructions from
the beneficial owner.
According to Forest Laboratories Proxy Statement, the Bylaws and applicable law, the approval of
Proposal 4 RATIFICATION OF THE SELECTION OF THE INDEPENDENT REGISTERED ACCOUNTING FIRM requires the affirmative vote of a majority of the shares present in person or by proxy and entitled to vote on the matter. Abstentions will
therefore have the same effect as a vote against the proposal. Brokers are not entitled to vote on such proposals in the absence of voting instructions from the beneficial owner. Therefore, broker non-votes will have no effect on this proposal.
11
As explained in the detailed instructions on your
GOLD
proxy card, there are four
ways you may vote. You may:
|
1.
|
Sign, date and return the enclosed
GOLD
proxy card in the enclosed postage-paid envelope. We recommend that you vote on the
GOLD
proxy card even if you
plan to attend the Annual Meeting;
|
|
2.
|
Vote via the Internet by following the voting instructions on the
GOLD
proxy card or the voting instructions provided by your broker, bank or other holder of
record.
|
|
3.
|
Vote by telephone by following the voting instructions on the
GOLD
proxy card or the instructions provided by your broker, bank or other holder of record; or
|
|
4.
|
Vote in person by attending the Annual Meeting. Written ballots will be distributed to Stockholders who wish to vote in person at the Annual Meeting. If you hold your
shares of Common Stock through a bank, broker or other custodian, you must obtain a legal proxy from such custodian in order to vote in person at the meeting.
|
To submit a proxy with voting instructions by telephone please call the telephone number listed on the
GOLD
proxy card. Proxies may also be submitted over the Internet. Please refer to the
GOLD
proxy card for the website information. In each case Stockholders will be required to provide the unique control number which has been printed on each Stockholders
GOLD
proxy card. In addition to the instructions that appear
on the
GOLD
proxy card, step-by-step instructions will be provided by a recorded telephone message for those Stockholders submitting proxies by telephone or at the designated website for those Stockholders submitting proxies over the
Internet. Stockholders submitting their proxies with voting instructions by telephone or over the Internet will receive confirmation on the telephone that their vote by telephone was successfully submitted, and may provide an email address for
confirmation that their vote by Internet was successfully submitted.
Whether or not you are able to attend the Annual
Meeting, you are urged to complete the enclosed
GOLD
proxy and return it in the enclosed self-addressed, prepaid envelope. All valid proxies received prior to the meeting will be voted. If you specify a choice with respect to any item by
marking the appropriate box on the proxy, the shares of Common Stock will be voted in accordance with that specification. IF NO SPECIFICATION IS MADE, THE SHARES OF COMMON STOCK WILL BE VOTED (I)
FOR
DR. ALEXANDER J. DENNER FOR
DIRECTOR; (II)
FOR
DR. RICHARD MULLIGAN FOR DIRECTOR; (III)
FOR
PROFESSOR LUCIAN A. BEBCHUK FOR DIRECTOR (IV)
FOR
DR. ERIC J. ENDE FOR DIRECTOR; (V)
FOR
THE PERSONS WHO HAVE BEEN NOMINATED
BY FOREST LABORATORIES TO SERVE AS DIRECTORS, OTHER THAN HOWARD SOLOMON, DAN L. GOLDWASSER, KENNETH E. GOODMAN AND LESTER B. SALANS; (VI)
AGAINST
THE ADVISORY VOTE ON EXECUTIVE COMPENSATION (SAY-ON-PAY VOTE); (VII)
FOR 1
YEAR
ON THE ADVISORY VOTE ON THE FREQUENCY OF AN ADVISORY VOTE ON THE COMPENSATION OF THE COMPANYS NAMED EXECUTIVE OFFICERS (SAYWHENONPAY VOTE)
;
(VIII)
FOR
THE RATIFICATION OF THE SELECTION OF THE
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
;
AND (IX) IN THE PROXY HOLDERS DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your proxy, please call:
D.F. King & Co., Inc.
Stockholders call toll-free:
(800) 697-6975
Banks and Brokerage Firms call: (212) 269-5550
12
PROXY PROCEDURES
IN ORDER TO SUPPORT THE NOMINEES AND VOTE AS RECOMMENDED BY THE PARTICIPANTS AT THE ANNUAL MEETING, PLEASE MARK, SIGN, DATE AND RETURN THE ENCLOSED
GOLD
PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID
ENVELOPE OR USE THE
GOLD
PROXY CARD TO VOTE BY TELEPHONE OR INTERNET.
The accompanying
GOLD
proxy card will be
voted at the Annual Meeting in accordance with your instructions on such card.
Only holders of record as of the close of
business on the Record Date will be entitled to vote. If you were a Stockholder of record on the Record Date, you will retain your voting rights at the Annual Meeting even if you sell such shares of Common Stock after the Record Date. Accordingly,
it is important that you vote the shares of Common Stock held by you on the Record Date, or grant a proxy to vote such shares of Common Stock on the
GOLD
proxy card, even if you sell such shares of Common Stock after the Record Date.
IF YOUR SHARES OF COMMON STOCK ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK NOMINEE OR OTHER INSTITUTION ON THE
RECORD DATE, ONLY IT CAN VOTE SUCH SHARES OF COMMON STOCK AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, IF YOU WISH TO SUPPORT THE NOMINEES AND VOTE AS RECOMMENDED BY THE PARTICIPANTS AT THE ANNUAL MEETING PLEASE CONTACT THE
PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR BEHALF THE
GOLD
PROXY CARD AS SOON AS POSSIBLE.
REVOCATION OF PROXIES
Any Stockholder of record may revoke or change his or her proxy instructions at any time prior to the vote at the Annual Meeting by:
|
|
|
submitting a properly executed, subsequently dated
GOLD
proxy card that will revoke all prior proxy cards, including any white proxy cards which
you may have submitted to Forest Laboratories;
|
|
|
|
submitting a properly executed, subsequently dated
WHITE
proxy card that will revoke all prior proxy cards, including any gold proxy cards which
you may have submitted to Forest Laboratories;
|
|
|
|
instructing the Icahn Parties by telephone or via the Internet as to how you would like your shares of Common Stock voted (instructions are on your
GOLD
proxy card);
|
|
|
|
attending the Annual Meeting and withdrawing his or her proxy by voting in person (although attendance at the Annual Meeting will not in and of itself
constitute revocation of a proxy); or
|
|
|
|
delivering written notice of revocation either to the Icahn Parties c/o D.F. King & Co., Inc., 48 Wall Street, New York, NY 10005, or the
Corporate Secretary of Forest Laboratories.
|
Although a revocation is effective if delivered to Forest
Laboratories, the Icahn Parties request that either the original or a copy of any revocation be mailed to the Icahn Parties c/o D.F. King & Co., Inc., 48 Wall Street, New York, NY 10005, so that the Icahn Parties will be aware of all
revocations.
IF YOU PREVIOUSLY SIGNED AND RETURNED A WHITE PROXY CARD TO FOREST LABORATORIES, WE URGE YOU TO REVOKE IT BY
(1) MARKING, SIGNING, DATING AND RETURNING THE GOLD PROXY CARD, (2) INSTRUCTING US BY TELEPHONE OR VIA THE INTERNET AS TO HOW YOU WOULD LIKE YOUR SHARES OF COMMON STOCK VOTED WITH RESPECT TO THE GOLD PROXY CARD, (3) ATTENDING THE
ANNUAL MEETING AND VOTING IN PERSON OR (4) DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE ICAHN PARTIES OR TO THE CORPORATE SECRETARY OF THE COMPANY.
13
COST AND METHOD OF SOLICITATION
Solicitation of proxies will be made by Mr. Icahn, Dr. Denner, Dr. Mulligan, Prof. Bebchuk, Dr. Ende and Mayu Sris.
Icahn Capital has retained D.F. King & Co., Inc. (
D.F. King
) to conduct the solicitation, for
which D.F. King is to receive a fee of up to $200,000. In addition, Icahn Capital has retained Mayu Sris to perform certain consulting services in connection with the solicitation, for which Mr. Sris is to receive a monthly fee of $40,000 and
up to an additional $60,000, in certain circumstances. Icahn Capital has agreed to indemnify each of D.F. King and Mr. Sris against certain liabilities and expenses, including certain liabilities under the federal securities laws. Insofar as
indemnification for liabilities arising under the federal securities laws may be permitted to D.F. King or Mr. Sris pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy and is therefore unenforceable. Proxies may be solicited by mail, courier services, Internet, advertising, telephone or telecopier or in person. It is anticipated that D.F. King will employ up to 100 persons
to solicit proxies from Forest Laboratories Stockholders for the Annual Meeting. The total expenditures in furtherance of, or in connection with, the solicitation of proxies incurred to date is estimated to be approximately $130,000, and is
estimated to be approximately $400,000 in total.
The Icahn Parties will pay all costs associated with this solicitation. The
Icahn Parties do not intend to seek reimbursement for the costs and expenses associated with the proxy solicitation in the event that any of the Nominees are elected to the Board of Directors of Forest Laboratories.
14
ADDITIONAL INFORMATION
Certain information regarding the securities of Forest Laboratories held by Forest Laboratories directors, management and 5% Stockholders is contained in the Forest Laboratories Proxy
Statement. Information concerning the date by which proposals of security holders intended to be presented at the next annual meeting of Stockholders of Forest Laboratories must be received by Forest Laboratories for inclusion in the Forest
Laboratories Proxy Statement and form of proxy for that meeting is also contained in the Forest Laboratories Proxy Statement. This information is expected to be contained in Forest Laboratories public filings. The Participants take
no responsibility for the accuracy or completeness of such information contained in Forest Laboratories public filings.
Date:
July 19, 2011
MR. CARL C. ICAHN
DR. ALEXANDER J. DENNER
DR. RICHARD MULLIGAN
PROF. LUCIAN A. BEBCHUK
DR. ERIC J. ENDE
MAYU SRIS
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III
LP
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
IPH GP LLC
ICAHN CAPITAL L.P.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
BECKTON CORP.
15
ANNEX A
SECURITY OWNERSHIP OF THE PARTICIPANTS
|
|
|
|
|
|
|
(1) Title of
Class
|
|
(2) Name of
Beneficial Owner
1
|
|
(3) Amount of
Beneficial
Ownership
|
|
(4) Percent of Class
2
|
Common Stock, par
value $0.10 per share
(Shares)
|
|
High River
|
|
3,979,168
|
|
1.44%
|
Shares
|
|
Icahn Partners
|
|
6,095,186
|
|
2.20%
|
Shares
|
|
Icahn Master
|
|
6,582,778
|
|
2.38%
|
Shares
|
|
Icahn Master II
|
|
2,256,777
|
|
0.82%
|
Shares
|
|
Icahn Master III
|
|
981,932
|
|
0.36%
|
1
|
Please note that each stockholder listed in this table is, as of July 19, 2011, the direct beneficial owner of the Shares set forth under the heading (3)
Amount of Beneficial Ownership and that indirect beneficial ownership of Shares is described below in the text of this Annex A under the heading Description of Beneficial Ownership.
|
2
|
Please note that percentages of ownership set forth in this column were calculated based on the 276,457,485 Shares stated to be outstanding as of June 24, 2011 by
the Corporation in the Forest Laboratories Proxy Statement.
|
A-1
Description of Beneficial Ownership and Beneficial Owners
Barberry Corp., a Delaware corporation (
Barberry
), is the sole member of Hopper Investments LLC, a Delaware limited
liability company (
Hopper
), which is the general partner of High River. Beckton Corp., a Delaware corporation (
Beckton
) is the sole stockholder of Icahn Enterprises G.P. Inc., a Delaware corporation
(
Icahn Enterprises GP
), which is the general partner of Icahn Enterprises Holdings L.P., a Delaware limited partnership (
Icahn Holdings
). Icahn Holdings is the sole member of IPH GP LLC, a Delaware limited
liability company (
IPH
), which is the general partner of Icahn Capital L.P., a Delaware limited partnership (
Icahn Capital
). Icahn Capital is the general partner of each of Icahn Onshore LP, a Delaware limited
partnership (
Icahn Onshore
) and Icahn Offshore LP, a Delaware limited partnership (
Icahn Offshore
). Icahn Onshore is the general partner of Icahn Partners. Icahn Offshore is the general partner of each of Icahn
Master, Icahn Master II and Icahn Master III. Each of Barberry and Beckton is 100 percent owned by Carl C. Icahn (
Mr.
Icahn
, and collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn Holdings, IPH, Icahn
Capital, Icahn Onshore, Icahn Offshore, the
Beneficial Owners
and each of them a
Beneficial Owner
. As such, Mr. Icahn is in a position indirectly to determine the investment and voting decisions made by
each of the Icahn Parties.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is White Plains Plaza, 445 Hamilton AvenueSuite 1210, White Plains, NY 10601 and (ii) Mr. Icahn, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth
Avenue, 47th Floor, New York, NY 10153. The principal business address of Icahn Partners is 767 Fifth Avenue,
47
th
Floor, New York, NY 10153. The principal business
address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT, 87 Mary Street, George Town, Grand Cayman, Cayman Islands. The principal business address of Icahn Master II is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town,
Grand Cayman KY1-9002, Cayman Islands. The principal business address of Icahn Master III is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1-9002, Cayman Islands. The principal business address of High River is
767 Fifth Avenue, 47
th
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 Starfires subsidiaries. Each of High River, Icahn Master, Icahn Master II, Icahn Master III, Icahn Partners and
High River are primarily engaged in the business of investing in securities.
The Icahn Parties and Carl C. Icahn may be
deemed to beneficially own, in the aggregate, 19,895,841 Shares, representing approximately 7.2% of the Corporations outstanding Shares (based upon the 276,457,485 Shares stated to be outstanding as of June 24, 2011 by the Corporation in
the Forest Laboratories Proxy Statement).
A-2
High River has sole voting power and/or sole dispositive power with regard to 3,979,168
Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting power and/or shared dispositive power with regard to such Shares. Icahn Partners has sole voting power and/or sole dispositive power with regard to 6,095,186 Shares. Each of Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting power and/or shared dispositive power with regard to such Shares. Icahn Master has sole voting power and/or sole dispositive power with
regard to 6,582,778 Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting power and/or shared dispositive power with regard to such Shares. Icahn Master II has sole
voting power and/or sole dispositive power with regard to 2,256,777 Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting power and/or shared dispositive power with
regard to such Shares. Icahn Master III has sole voting power and/or sole dispositive power with regard to 981,932 Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting
power and/or shared dispositive power with regard to such Shares.
Each Each of Hopper, Barberry and Mr. Icahn, by virtue
of their relationships to High River, may be deemed to indirectly beneficially own the 3,979,168 Shares which High River directly beneficially owns. Each of Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn, by virtue of their relationships to Icahn Partners, may be deemed to indirectly beneficially own the 6,095,186 Shares which Icahn Partners directly beneficially owns. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn Master, Icahn Master II and Icahn Master III, may be deemed to indirectly beneficially own the 9,821,487 Shares which Icahn Master, Icahn Master II and Icahn
Master III directly beneficially own.
Without acknowledging the following disclosure is required, on January 5, 2001,
Reliance Group Holdings, Inc. (
Reliance
) commenced an action in the United States District Court for the Southern District of New York against Carl C. Icahn, Icahn Associates Corp. and High River alleging that High Rivers
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 plaintiffs 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 plaintiffs 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.
A-3
Two Year Summary Table:
The following table indicates the date of each purchase and sale of Shares, as well as the exercise of call options, by the Participants and by Mr. Icahn and his affiliates within the past two years,
and the number of shares in each such purchase and sale.
|
|
|
|
|
|
|
Name
|
|
Date
|
|
Shares
Purchased/Call
Options Exercised
|
|
High River
|
|
8/21/2009
|
|
|
80,000
|
|
High River
|
|
8/24/2009
|
|
|
1,080
|
|
High River
|
|
8/25/2009
|
|
|
31,280
|
|
High River
|
|
8/27/2009
|
|
|
120
|
|
High River
|
|
8/28/2009
|
|
|
13,700
|
|
High River
|
|
9/1/2009
|
|
|
33,820
|
|
High River
|
|
9/2/2009
|
|
|
30,000
|
|
High River
|
|
9/11/2009
|
|
|
23,060
|
|
High River
|
|
9/14/2009
|
|
|
1,640
|
|
High River
|
|
9/15/2009
|
|
|
25,300
|
|
High River
|
|
9/24/2009
|
|
|
10,000
|
|
High River
|
|
10/2/2009
|
|
|
10,000
|
|
High River
|
|
10/26/2009
|
|
|
23,280
|
|
High River
|
|
10/28/2009
|
|
|
20,000
|
|
High River
|
|
3/1/2011
|
|
|
48,813
|
|
High River
|
|
3/1/2011
|
|
|
1,000
|
|
High River
|
|
3/2/2011
|
|
|
40,000
|
|
High River
|
|
3/4/2011
|
|
|
20,000
|
|
High River
|
|
6/24/2011
|
|
|
3,566,075
|
3
|
|
|
|
Icahn Partners
|
|
8/21/2009
|
|
|
109,547
|
|
Icahn Partners
|
|
8/24/2009
|
|
|
1,478
|
|
Icahn Partners
|
|
8/25/2009
|
|
|
42,834
|
|
Icahn Partners
|
|
8/27/2009
|
|
|
165
|
|
Icahn Partners
|
|
8/28/2009
|
|
|
18,759
|
|
Icahn Partners
|
|
9/1/2009
|
|
|
46,823
|
|
Icahn Partners
|
|
9/2/2009
|
|
|
41,165
|
|
Icahn Partners
|
|
9/11/2009
|
|
|
31,651
|
|
Icahn Partners
|
|
9/14/2009
|
|
|
2,250
|
|
Icahn Partners
|
|
9/15/2009
|
|
|
34,724
|
|
Icahn Partners
|
|
9/24/2009
|
|
|
13,725
|
|
Icahn Partners
|
|
10/2/2009
|
|
|
14,680
|
|
Icahn Partners
|
|
10/26/2009
|
|
|
32,053
|
|
Icahn Partners
|
|
10/28/2009
|
|
|
27,524
|
|
Icahn Partners
|
|
3/1/2011
|
|
|
115,927
|
|
Icahn Partners
|
|
3/2/2011
|
|
|
69,954
|
|
Icahn Partners
|
|
3/4/2011
|
|
|
30,693
|
|
Icahn Partners
|
|
6/24/2011
|
|
|
5,461,234
|
(3)
|
|
|
|
Icahn Master
|
|
8/21/2009
|
|
|
134,886
|
|
Icahn Master
|
|
8/24/2009
|
|
|
1,820
|
|
Icahn Master
|
|
8/25/2009
|
|
|
52,741
|
|
Icahn Master
|
|
8/27/2009
|
|
|
202
|
|
Icahn Master
|
|
8/28/2009
|
|
|
23,099
|
|
Icahn Master
|
|
9/1/2009
|
|
|
57,157
|
|
Icahn Master
|
|
9/2/2009
|
|
|
50,571
|
|
Icahn Master
|
|
9/11/2009
|
|
|
38,896
|
|
Icahn Master
|
|
9/14/2009
|
|
|
2,765
|
|
Icahn Master
|
|
9/15/2009
|
|
|
42,674
|
|
A-4
|
|
|
|
|
|
|
Name
|
|
Date
|
|
Shares
Purchased/Call
Options Exercised
|
|
Icahn Master
|
|
9/24/2009
|
|
|
16,867
|
|
Icahn Master
|
|
10/2/2009
|
|
|
18,530
|
|
Icahn Master
|
|
10/26/2009
|
|
|
39,409
|
|
Icahn Master
|
|
10/28/2009
|
|
|
33,863
|
|
Icahn Master
|
|
3/1/2011
|
|
|
72,491
|
|
Icahn Master
|
|
3/2/2011
|
|
|
76,863
|
|
Icahn Master
|
|
3/4/2011
|
|
|
33,724
|
|
Icahn Master
|
|
6/24/2011
|
|
|
5,886,220
|
(3)
|
|
|
|
Icahn Master II
|
|
8/21/2009
|
|
|
54,727
|
|
Icahn Master II
|
|
8/24/2009
|
|
|
739
|
|
Icahn Master II
|
|
8/25/2009
|
|
|
21,399
|
|
Icahn Master II
|
|
8/27/2009
|
|
|
81
|
|
Icahn Master II
|
|
8/28/2009
|
|
|
9,373
|
|
Icahn Master II
|
|
9/1/2009
|
|
|
22,622
|
|
Icahn Master II
|
|
9/2/2009
|
|
|
20,465
|
|
Icahn Master II
|
|
9/11/2009
|
|
|
15,704
|
|
Icahn Master II
|
|
9/14/2009
|
|
|
1,119
|
|
Icahn Master II
|
|
9/15/2009
|
|
|
17,231
|
|
Icahn Master II
|
|
9/24/2009
|
|
|
6,811
|
|
Icahn Master II
|
|
10/2/2009
|
|
|
5,113
|
|
Icahn Master II
|
|
10/26/2009
|
|
|
15,701
|
|
Icahn Master II
|
|
10/28/2009
|
|
|
13,491
|
|
Icahn Master II
|
|
3/2/2011
|
|
|
1,572
|
|
Icahn Master II
|
|
3/4/2011
|
|
|
10,490
|
|
Icahn Master II
|
|
6/24/2011
|
|
|
2,040,139
|
(3)
|
|
|
|
Icahn Master III
|
|
8/21/2009
|
|
|
20,840
|
|
Icahn Master III
|
|
8/24/2009
|
|
|
283
|
|
Icahn Master III
|
|
8/25/2009
|
|
|
8,146
|
|
Icahn Master III
|
|
8/27/2009
|
|
|
32
|
|
Icahn Master III
|
|
8/28/2009
|
|
|
3,569
|
|
Icahn Master III
|
|
9/1/2009
|
|
|
8,678
|
|
Icahn Master III
|
|
9/2/2009
|
|
|
7,799
|
|
Icahn Master III
|
|
9/11/2009
|
|
|
5,989
|
|
Icahn Master III
|
|
9/14/2009
|
|
|
426
|
|
Icahn Master III
|
|
9/15/2009
|
|
|
6,571
|
|
Icahn Master III
|
|
9/24/2009
|
|
|
2,597
|
|
Icahn Master III
|
|
10/2/2009
|
|
|
1,677
|
|
Icahn Master III
|
|
10/26/2009
|
|
|
5,957
|
|
Icahn Master III
|
|
10/28/2009
|
|
|
5,122
|
|
Icahn Master III
|
|
3/1/2011
|
|
|
10,834
|
|
Icahn Master III
|
|
3/2/2011
|
|
|
11,611
|
|
Icahn Master III
|
|
3/4/2011
|
|
|
5,093
|
|
Icahn Master III
|
|
6/24/2011
|
|
|
876,708
|
(3)
|
3
|
The record holder acquired these Shares upon the exercise of call options as described on Attachment I-A to this Annex A.
|
Shares of Common Stock purchased by each of the Icahn Parties are maintained in margin accounts that include positions in securities in addition to the
shares. As of July 15, 2011, the indebtedness of (i) High Rivers margin account was approximately $372.7 million, (ii) Icahn Partners margin account was approximately $524.6 million, (iii) Icahn Masters margin
account was approximately $670.2 million, (iv) Icahn Master IIs margin account was approximately $157.0 million, and (v) Icahn Master IIIs margin account was approximately $81.2 million.
A-5
ANNEX A
Attachment 1-A
The following are American call options purchased by the Icahn Parties,
which were written by UBS AG with a $21.25 strike price and an expiration date of March 7, 2013, and which provided for physical settlement (unless the applicable Icahn Party opts for a cash settlement). These are further described in the chart
set forth below. On June 24, 2011, the Icahn Parties exercised all of their respective call options.
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Paid
($)
|
|
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
|
|
High River
|
|
6/10/2011
|
|
|
279,047
|
|
|
|
4,647,332.45
|
|
|
|
|
|
Icahn Partners
|
|
3/7/2011
|
|
|
61,386
|
|
|
|
674,343.63
|
|
Icahn Partners
|
|
3/8/2011
|
|
|
38,302
|
|
|
|
426,841.32
|
|
Icahn Partners
|
|
3/10/2011
|
|
|
39,422
|
|
|
|
428,635.41
|
|
Icahn Partners
|
|
3/11/2011
|
|
|
30,692
|
|
|
|
324,939.27
|
|
Icahn Partners
|
|
3/14/2011
|
|
|
40,807
|
|
|
|
422,809.49
|
|
Icahn Partners
|
|
3/16/2011
|
|
|
103,267
|
|
|
|
945,863.76
|
|
Icahn Partners
|
|
3/17/2011
|
|
|
61,383
|
|
|
|
575,600.67
|
|
Icahn Partners
|
|
3/18/2011
|
|
|
62,522
|
|
|
|
597,566.52
|
|
Icahn Partners
|
|
3/23/2011
|
|
|
7,488
|
|
|
|
71,036.41
|
|
Icahn Partners
|
|
4/26/2011
|
|
|
103,149
|
|
|
|
1,201,304.20
|
|
A-6
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Paid
($)
|
|
Icahn Partners
|
|
4/27/2011
|
|
|
46,839
|
|
|
|
555,482.44
|
|
Icahn Partners
|
|
4/28/2011
|
|
|
493
|
|
|
|
5,856.84
|
|
Icahn Partners
|
|
4/29/2011
|
|
|
101,370
|
|
|
|
1,212,395.34
|
|
Icahn Partners
|
|
5/12/2011
|
|
|
191,068
|
|
|
|
2,365,097.02
|
|
Icahn Partners
|
|
5/13/2011
|
|
|
155,182
|
|
|
|
2,015,907.29
|
|
Icahn Partners
|
|
5/16/2011
|
|
|
2,035
|
|
|
|
26,368.51
|
|
Icahn Partners
|
|
5/17/2011
|
|
|
36,771
|
|
|
|
477,394.22
|
|
Icahn Partners
|
|
5/18/2011
|
|
|
268,648
|
|
|
|
3,666,615.36
|
|
Icahn Partners
|
|
5/19/2011
|
|
|
340,528
|
|
|
|
4,754,962.73
|
|
Icahn Partners
|
|
5/20/2011
|
|
|
340,677
|
|
|
|
4,792,814.37
|
|
Icahn Partners
|
|
5/23/2011
|
|
|
238,613
|
|
|
|
3,231,512.00
|
|
Icahn Partners
|
|
5/24/2011
|
|
|
134,553
|
|
|
|
1,843,847.04
|
|
Icahn Partners
|
|
5/25/2011
|
|
|
248,797
|
|
|
|
3,470,643.51
|
|
Icahn Partners
|
|
5/26/2011
|
|
|
172,894
|
|
|
|
2,446,294.50
|
|
Icahn Partners
|
|
6/1/2011
|
|
|
18,626
|
|
|
|
265,725.97
|
|
Icahn Partners
|
|
6/2/2011
|
|
|
65,615
|
|
|
|
935,669.90
|
|
Icahn Partners
|
|
6/3/2011
|
|
|
683,786
|
|
|
|
10,595,811.10
|
|
Icahn Partners
|
|
6/6/2011
|
|
|
145,518
|
|
|
|
2,227,574.99
|
|
Icahn Partners
|
|
6/7/2011
|
|
|
402,460
|
|
|
|
6,289,846.11
|
|
Icahn Partners
|
|
6/8/2011
|
|
|
335,608
|
|
|
|
5,287,940.33
|
|
Icahn Partners
|
|
6/9/2011
|
|
|
555,298
|
|
|
|
9,140,704.85
|
|
Icahn Partners
|
|
6/10/2011
|
|
|
427,437
|
|
|
|
7,118,664.03
|
|
|
|
|
|
Icahn Master
|
|
3/7/2011
|
|
|
67,448
|
|
|
|
740,936.51
|
|
Icahn Master
|
|
3/8/2011
|
|
|
42,085
|
|
|
|
468,999.45
|
|
Icahn Master
|
|
3/10/2011
|
|
|
43,314
|
|
|
|
470,953.12
|
|
Icahn Master
|
|
3/11/2011
|
|
|
33,725
|
|
|
|
357,049.95
|
|
Icahn Master
|
|
3/14/2011
|
|
|
44,835
|
|
|
|
464,544.40
|
|
Icahn Master
|
|
3/16/2011
|
|
|
113,464
|
|
|
|
1,039,262.16
|
|
Icahn Master
|
|
3/17/2011
|
|
|
67,449
|
|
|
|
632,482.76
|
|
Icahn Master
|
|
3/18/2011
|
|
|
68,695
|
|
|
|
656,566.20
|
|
Icahn Master
|
|
3/23/2011
|
|
|
8,229
|
|
|
|
78,066.05
|
|
Icahn Master
|
|
4/26/2011
|
|
|
78,757
|
|
|
|
917,227.65
|
|
Icahn Master
|
|
4/27/2011
|
|
|
50,095
|
|
|
|
594,096.64
|
|
Icahn Master
|
|
4/28/2011
|
|
|
526
|
|
|
|
6,248.88
|
|
Icahn Master
|
|
4/29/2011
|
|
|
108,417
|
|
|
|
1,296,678.16
|
|
Icahn Master
|
|
5/12/2011
|
|
|
219,672
|
|
|
|
2,719,165.92
|
|
Icahn Master
|
|
5/13/2011
|
|
|
167,531
|
|
|
|
2,176,328.21
|
|
Icahn Master
|
|
5/16/2011
|
|
|
2,197
|
|
|
|
28,467.63
|
|
Icahn Master
|
|
5/17/2011
|
|
|
39,698
|
|
|
|
515,395.16
|
|
Icahn Master
|
|
5/18/2011
|
|
|
290,025
|
|
|
|
3,958,377.21
|
|
Icahn Master
|
|
5/19/2011
|
|
|
367,627
|
|
|
|
5,133,359.61
|
|
Icahn Master
|
|
5/20/2011
|
|
|
367,787
|
|
|
|
5,174,211.41
|
|
Icahn Master
|
|
5/23/2011
|
|
|
257,602
|
|
|
|
3,488,678.13
|
|
Icahn Master
|
|
5/24/2011
|
|
|
145,261
|
|
|
|
1,990,584.11
|
|
Icahn Master
|
|
5/25/2011
|
|
|
268,594
|
|
|
|
3,746,805.72
|
|
Icahn Master
|
|
5/26/2011
|
|
|
186,653
|
|
|
|
2,640,971.96
|
|
Icahn Master
|
|
6/1/2011
|
|
|
21,565
|
|
|
|
307,654.92
|
|
Icahn Master
|
|
6/2/2011
|
|
|
70,863
|
|
|
|
1,010,506.38
|
|
Icahn Master
|
|
6/3/2011
|
|
|
738,386
|
|
|
|
11,443,431.36
|
|
Icahn Master
|
|
6/6/2011
|
|
|
157,160
|
|
|
|
2,405,789.56
|
|
A-7
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Paid
($)
|
|
Icahn Master
|
|
6/7/2011
|
|
|
434,655
|
|
|
|
6,793,005.67
|
|
Icahn Master
|
|
6/8/2011
|
|
|
362,455
|
|
|
|
5,710,949.72
|
|
Icahn Master
|
|
6/9/2011
|
|
|
599,720
|
|
|
|
9,871,930.95
|
|
Icahn Master
|
|
6/10/2011
|
|
|
461,630
|
|
|
|
7,688,124.51
|
|
|
|
|
|
Icahn Master II
|
|
3/7/2011
|
|
|
20,976
|
|
|
|
230,427.65
|
|
Icahn Master II
|
|
3/8/2011
|
|
|
13,089
|
|
|
|
145,865.12
|
|
Icahn Master II
|
|
3/10/2011
|
|
|
13,472
|
|
|
|
146,481.06
|
|
Icahn Master II
|
|
3/11/2011
|
|
|
10,488
|
|
|
|
111,037.50
|
|
Icahn Master II
|
|
3/14/2011
|
|
|
13,945
|
|
|
|
144,486.93
|
|
Icahn Master II
|
|
3/16/2011
|
|
|
35,288
|
|
|
|
323,216.91
|
|
Icahn Master II
|
|
3/17/2011
|
|
|
20,979
|
|
|
|
196,724.28
|
|
Icahn Master II
|
|
3/18/2011
|
|
|
21,365
|
|
|
|
204,200.26
|
|
Icahn Master II
|
|
3/23/2011
|
|
|
2,558
|
|
|
|
24,266.98
|
|
Icahn Master II
|
|
4/26/2011
|
|
|
71,564
|
|
|
|
833,455.81
|
|
Icahn Master II
|
|
4/27/2011
|
|
|
17,447
|
|
|
|
206,910.95
|
|
Icahn Master II
|
|
4/28/2011
|
|
|
182
|
|
|
|
2,162.16
|
|
Icahn Master II
|
|
4/29/2011
|
|
|
37,753
|
|
|
|
451,529.66
|
|
Icahn Master II
|
|
5/12/2011
|
|
|
68,223
|
|
|
|
844,484.76
|
|
Icahn Master II
|
|
5/13/2011
|
|
|
57,497
|
|
|
|
746,920.53
|
|
Icahn Master II
|
|
5/16/2011
|
|
|
755
|
|
|
|
9,782.91
|
|
Icahn Master II
|
|
5/17/2011
|
|
|
13,624
|
|
|
|
176,879.03
|
|
Icahn Master II
|
|
5/18/2011
|
|
|
99,536
|
|
|
|
1,358,507.14
|
|
Icahn Master II
|
|
5/19/2011
|
|
|
126,170
|
|
|
|
1,761,774.80
|
|
Icahn Master II
|
|
5/20/2011
|
|
|
126,226
|
|
|
|
1,775,810.48
|
|
Icahn Master II
|
|
5/23/2011
|
|
|
88,408
|
|
|
|
1,197,300.70
|
|
Icahn Master II
|
|
5/24/2011
|
|
|
49,853
|
|
|
|
683,160.59
|
|
Icahn Master II
|
|
5/25/2011
|
|
|
92,180
|
|
|
|
1,285,883.35
|
|
Icahn Master II
|
|
5/26/2011
|
|
|
64,059
|
|
|
|
906,377.20
|
|
Icahn Master II
|
|
6/1/2011
|
|
|
6,014
|
|
|
|
85,798.13
|
|
Icahn Master II
|
|
6/2/2011
|
|
|
24,296
|
|
|
|
346,460.96
|
|
Icahn Master II
|
|
6/3/2011
|
|
|
253,176
|
|
|
|
3,923,164.66
|
|
Icahn Master II
|
|
6/6/2011
|
|
|
53,880
|
|
|
|
824,789.65
|
|
Icahn Master II
|
|
6/7/2011
|
|
|
149,013
|
|
|
|
2,328,849.67
|
|
Icahn Master II
|
|
6/8/2011
|
|
|
124,261
|
|
|
|
1,957,893.59
|
|
Icahn Master II
|
|
6/9/2011
|
|
|
205,601
|
|
|
|
3,384,377.50
|
|
Icahn Master II
|
|
6/10/2011
|
|
|
158,261
|
|
|
|
2,635,726.17
|
|
|
|
|
|
Icahn Master III
|
|
3/7/2011
|
|
|
10,190
|
|
|
|
111,940.21
|
|
Icahn Master III
|
|
3/8/2011
|
|
|
6,357
|
|
|
|
70,843.04
|
|
Icahn Master III
|
|
3/10/2011
|
|
|
6,543
|
|
|
|
71,142.04
|
|
Icahn Master III
|
|
3/11/2011
|
|
|
5,095
|
|
|
|
53,941.27
|
|
Icahn Master III
|
|
3/14/2011
|
|
|
6,773
|
|
|
|
70,176.41
|
|
Icahn Master III
|
|
3/16/2011
|
|
|
17,141
|
|
|
|
157,001.28
|
|
Icahn Master III
|
|
3/17/2011
|
|
|
10,189
|
|
|
|
95,544.29
|
|
Icahn Master III
|
|
3/18/2011
|
|
|
10,378
|
|
|
|
99,189.81
|
|
Icahn Master III
|
|
3/23/2011
|
|
|
1,243
|
|
|
|
11,791.97
|
|
Icahn Master III
|
|
4/26/2011
|
|
|
11,944
|
|
|
|
139,103.41
|
|
Icahn Master III
|
|
4/27/2011
|
|
|
7,569
|
|
|
|
89,763.80
|
|
Icahn Master III
|
|
4/28/2011
|
|
|
79
|
|
|
|
938.52
|
|
Icahn Master III
|
|
4/29/2011
|
|
|
16,382
|
|
|
|
195,930.36
|
|
A-8
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Paid
($)
|
|
Icahn Master III
|
|
5/12/2011
|
|
|
29,945
|
|
|
|
370,668.19
|
|
Icahn Master III
|
|
5/13/2011
|
|
|
24,984
|
|
|
|
324,557.15
|
|
Icahn Master III
|
|
5/16/2011
|
|
|
327
|
|
|
|
4,237.10
|
|
Icahn Master III
|
|
5/17/2011
|
|
|
5,921
|
|
|
|
76,871.75
|
|
Icahn Master III
|
|
5/18/2011
|
|
|
43,250
|
|
|
|
590,293.30
|
|
Icahn Master III
|
|
5/19/2011
|
|
|
54,822
|
|
|
|
765,507.00
|
|
Icahn Master III
|
|
5/20/2011
|
|
|
54,846
|
|
|
|
771,600.95
|
|
Icahn Master III
|
|
5/23/2011
|
|
|
38,415
|
|
|
|
520,250.50
|
|
Icahn Master III
|
|
5/24/2011
|
|
|
21,663
|
|
|
|
296,858.92
|
|
Icahn Master III
|
|
5/25/2011
|
|
|
40,055
|
|
|
|
558,755.23
|
|
Icahn Master III
|
|
5/26/2011
|
|
|
27,833
|
|
|
|
393,811.90
|
|
Icahn Master III
|
|
6/1/2011
|
|
|
3,373
|
|
|
|
48,120.57
|
|
Icahn Master III
|
|
6/2/2011
|
|
|
10,570
|
|
|
|
150,728.20
|
|
Icahn Master III
|
|
6/3/2011
|
|
|
110,158
|
|
|
|
1,706,986.34
|
|
Icahn Master III
|
|
6/6/2011
|
|
|
23,442
|
|
|
|
358,847.79
|
|
Icahn Master III
|
|
6/7/2011
|
|
|
64,836
|
|
|
|
1,013,289.43
|
|
Icahn Master III
|
|
6/8/2011
|
|
|
54,066
|
|
|
|
851,880.12
|
|
Icahn Master III
|
|
6/9/2011
|
|
|
89,459
|
|
|
|
1,472,575.65
|
|
Icahn Master III
|
|
6/10/2011
|
|
|
68,860
|
|
|
|
1,146,815.10
|
|
A-9
ANNEX A
Attachment 1-B
The following are European put options which were written by the Icahn
Parties to UBS AG and had a $21.25 strike price and an expiration date of the earlier of March 7, 2013 or the date on which the corresponding American-style call option described above in Annex A, Attachment 1-A is exercised, and provided for
cash settlement only and are further described in the chart set forth below. On June 24, 2010, the Icahn Parties exercised all of the call options described in Annex A Attachment 1-A, and upon exercise of the call options, all of the put
options described below expired pursuant to their terms.
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Received
($)
|
|
High River
|
|
3/7/2011
|
|
|
40,000
|
|
|
|
400.00
|
|
High River
|
|
3/8/2011
|
|
|
24,958
|
|
|
|
249.58
|
|
High River
|
|
3/10/2011
|
|
|
25,688
|
|
|
|
256.88
|
|
High River
|
|
3/11/2011
|
|
|
20,000
|
|
|
|
200.00
|
|
High River
|
|
3/14/2011
|
|
|
26,590
|
|
|
|
265.90
|
|
High River
|
|
3/16/2011
|
|
|
67,290
|
|
|
|
672.90
|
|
High River
|
|
3/17/2011
|
|
|
40,000
|
|
|
|
400.00
|
|
High River
|
|
3/18/2011
|
|
|
40,740
|
|
|
|
407.40
|
|
High River
|
|
3/23/2011
|
|
|
4,879
|
|
|
|
48.79
|
|
High River
|
|
4/26/2011
|
|
|
66,354
|
|
|
|
663.54
|
|
High River
|
|
4/27/2011
|
|
|
30,488
|
|
|
|
304.88
|
|
High River
|
|
4/28/2011
|
|
|
320
|
|
|
|
3.20
|
|
High River
|
|
4/29/2011
|
|
|
65,980
|
|
|
|
659.80
|
|
High River
|
|
5/12/2011
|
|
|
127,227
|
|
|
|
1,272.27
|
|
High River
|
|
5/13/2011
|
|
|
101,298
|
|
|
|
1,012.98
|
|
High River
|
|
5/16/2011
|
|
|
1,329
|
|
|
|
13.29
|
|
High River
|
|
5/17/2011
|
|
|
24,003
|
|
|
|
240.03
|
|
High River
|
|
5/18/2011
|
|
|
175,365
|
|
|
|
1,753.65
|
|
High River
|
|
5/19/2011
|
|
|
222,287
|
|
|
|
2,222.87
|
|
High River
|
|
5/20/2011
|
|
|
222,384
|
|
|
|
2,223.84
|
|
High River
|
|
5/23/2011
|
|
|
155,759
|
|
|
|
1,557.59
|
|
High River
|
|
5/24/2011
|
|
|
87,833
|
|
|
|
878.33
|
|
High River
|
|
5/25/2011
|
|
|
162,407
|
|
|
|
1,624.07
|
|
High River
|
|
5/26/2011
|
|
|
112,860
|
|
|
|
1,128.60
|
|
High River
|
|
6/1/2011
|
|
|
12,394
|
|
|
|
123.94
|
|
High River
|
|
6/2/2011
|
|
|
42,836
|
|
|
|
428.36
|
|
High River
|
|
6/3/2011
|
|
|
446,401
|
|
|
|
4,464.01
|
|
High River
|
|
6/6/2011
|
|
|
95,000
|
|
|
|
950.00
|
|
High River
|
|
6/7/2011
|
|
|
262,741
|
|
|
|
2,627.41
|
|
High River
|
|
6/8/2011
|
|
|
219,098
|
|
|
|
2,190.98
|
|
High River
|
|
6/9/2011
|
|
|
362,519
|
|
|
|
3,625.19
|
|
High River
|
|
6/10/2011
|
|
|
279,047
|
|
|
|
2,790.47
|
|
|
|
|
|
Icahn Partners
|
|
3/7/2011
|
|
|
61,386
|
|
|
|
613.86
|
|
Icahn Partners
|
|
3/8/2011
|
|
|
38,302
|
|
|
|
383.02
|
|
Icahn Partners
|
|
3/10/2011
|
|
|
39,422
|
|
|
|
394.22
|
|
Icahn Partners
|
|
3/11/2011
|
|
|
30,692
|
|
|
|
306.92
|
|
Icahn Partners
|
|
3/14/2011
|
|
|
40,807
|
|
|
|
408.07
|
|
Icahn Partners
|
|
3/16/2011
|
|
|
103,267
|
|
|
|
1,032.67
|
|
Icahn Partners
|
|
3/17/2011
|
|
|
61,383
|
|
|
|
613.83
|
|
Icahn Partners
|
|
3/18/2011
|
|
|
62,522
|
|
|
|
625.22
|
|
A-10
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Received
($)
|
|
Icahn Partners
|
|
3/23/2011
|
|
|
7,488
|
|
|
|
74.88
|
|
Icahn Partners
|
|
4/26/2011
|
|
|
103,149
|
|
|
|
1,031.49
|
|
Icahn Partners
|
|
4/27/2011
|
|
|
46,839
|
|
|
|
468.39
|
|
Icahn Partners
|
|
4/28/2011
|
|
|
493
|
|
|
|
4.93
|
|
Icahn Partners
|
|
4/29/2011
|
|
|
101,370
|
|
|
|
1,013.70
|
|
Icahn Partners
|
|
5/12/2011
|
|
|
191,068
|
|
|
|
1,910.68
|
|
Icahn Partners
|
|
5/13/2011
|
|
|
155,182
|
|
|
|
1,551.82
|
|
Icahn Partners
|
|
5/16/2011
|
|
|
2,035
|
|
|
|
20.35
|
|
Icahn Partners
|
|
5/17/2011
|
|
|
36,771
|
|
|
|
367.71
|
|
Icahn Partners
|
|
5/18/2011
|
|
|
268,648
|
|
|
|
2,686.48
|
|
Icahn Partners
|
|
5/19/2011
|
|
|
340,528
|
|
|
|
3,405.28
|
|
Icahn Partners
|
|
5/20/2011
|
|
|
340,677
|
|
|
|
3,406.77
|
|
Icahn Partners
|
|
5/23/2011
|
|
|
238,613
|
|
|
|
2,386.13
|
|
Icahn Partners
|
|
5/24/2011
|
|
|
134,553
|
|
|
|
1,345.53
|
|
Icahn Partners
|
|
5/25/2011
|
|
|
248,797
|
|
|
|
2,487.97
|
|
Icahn Partners
|
|
5/26/2011
|
|
|
172,894
|
|
|
|
1,728.94
|
|
Icahn Partners
|
|
6/1/2011
|
|
|
18,626
|
|
|
|
186.26
|
|
Icahn Partners
|
|
6/2/2011
|
|
|
65,615
|
|
|
|
656.15
|
|
Icahn Partners
|
|
6/3/2011
|
|
|
683,786
|
|
|
|
6,837.86
|
|
Icahn Partners
|
|
6/6/2011
|
|
|
145,518
|
|
|
|
1,455.18
|
|
Icahn Partners
|
|
6/7/2011
|
|
|
402,460
|
|
|
|
4,024.60
|
|
Icahn Partners
|
|
6/8/2011
|
|
|
335,608
|
|
|
|
3,356.08
|
|
Icahn Partners
|
|
6/9/2011
|
|
|
555,298
|
|
|
|
5,552.98
|
|
Icahn Partners
|
|
6/10/2011
|
|
|
427,437
|
|
|
|
4,274.37
|
|
|
|
|
|
Icahn Master
|
|
3/7/2011
|
|
|
67,448
|
|
|
|
674.48
|
|
Icahn Master
|
|
3/8/2011
|
|
|
42,085
|
|
|
|
420.85
|
|
Icahn Master
|
|
3/10/2011
|
|
|
43,314
|
|
|
|
433.14
|
|
Icahn Master
|
|
3/11/2011
|
|
|
33,725
|
|
|
|
337.25
|
|
Icahn Master
|
|
3/14/2011
|
|
|
44,835
|
|
|
|
448.35
|
|
Icahn Master
|
|
3/16/2011
|
|
|
113,464
|
|
|
|
1,134.64
|
|
Icahn Master
|
|
3/17/2011
|
|
|
67,449
|
|
|
|
674.49
|
|
Icahn Master
|
|
3/18/2011
|
|
|
68,695
|
|
|
|
686.95
|
|
Icahn Master
|
|
3/23/2011
|
|
|
8,229
|
|
|
|
82.29
|
|
Icahn Master
|
|
4/26/2011
|
|
|
78,757
|
|
|
|
787.57
|
|
Icahn Master
|
|
4/27/2011
|
|
|
50,095
|
|
|
|
500.95
|
|
Icahn Master
|
|
4/28/2011
|
|
|
526
|
|
|
|
5.26
|
|
Icahn Master
|
|
4/29/2011
|
|
|
108,417
|
|
|
|
1,084.17
|
|
Icahn Master
|
|
5/12/2011
|
|
|
219,672
|
|
|
|
2,196.72
|
|
Icahn Master
|
|
5/13/2011
|
|
|
167,531
|
|
|
|
1,675.31
|
|
Icahn Master
|
|
5/16/2011
|
|
|
2,197
|
|
|
|
21.97
|
|
Icahn Master
|
|
5/17/2011
|
|
|
39,698
|
|
|
|
396.98
|
|
Icahn Master
|
|
5/18/2011
|
|
|
290,025
|
|
|
|
2,900.25
|
|
Icahn Master
|
|
5/19/2011
|
|
|
367,627
|
|
|
|
3,676.27
|
|
Icahn Master
|
|
5/20/2011
|
|
|
367,787
|
|
|
|
3,677.87
|
|
Icahn Master
|
|
5/23/2011
|
|
|
257,602
|
|
|
|
2,576.02
|
|
Icahn Master
|
|
5/24/2011
|
|
|
145,261
|
|
|
|
1,452.61
|
|
Icahn Master
|
|
5/25/2011
|
|
|
268,594
|
|
|
|
2,685.94
|
|
Icahn Master
|
|
5/26/2011
|
|
|
186,653
|
|
|
|
1,866.53
|
|
Icahn Master
|
|
6/1/2011
|
|
|
21,565
|
|
|
|
215.65
|
|
Icahn Master
|
|
6/2/2011
|
|
|
70,863
|
|
|
|
708.63
|
|
A-11
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Received
($)
|
|
Icahn Master
|
|
6/3/2011
|
|
|
738,386
|
|
|
|
7,384.86
|
|
Icahn Master
|
|
6/6/2011
|
|
|
157,160
|
|
|
|
1,571.60
|
|
Icahn Master
|
|
6/7/2011
|
|
|
434,655
|
|
|
|
4,346.55
|
|
Icahn Master
|
|
6/8/2011
|
|
|
362,455
|
|
|
|
3,624.55
|
|
Icahn Master
|
|
6/9/2011
|
|
|
599,720
|
|
|
|
5,997.20
|
|
Icahn Master
|
|
6/10/2011
|
|
|
461,630
|
|
|
|
4,616.30
|
|
|
|
|
|
Icahn Master II
|
|
3/7/2011
|
|
|
20,976
|
|
|
|
209.76
|
|
Icahn Master II
|
|
3/8/2011
|
|
|
13,089
|
|
|
|
130.89
|
|
Icahn Master II
|
|
3/10/2011
|
|
|
13,472
|
|
|
|
134.72
|
|
Icahn Master II
|
|
3/11/2011
|
|
|
10,488
|
|
|
|
104.88
|
|
Icahn Master II
|
|
3/14/2011
|
|
|
13,945
|
|
|
|
139.45
|
|
Icahn Master II
|
|
3/16/2011
|
|
|
35,288
|
|
|
|
352.88
|
|
Icahn Master II
|
|
3/17/2011
|
|
|
20,979
|
|
|
|
209.79
|
|
Icahn Master II
|
|
3/18/2011
|
|
|
21,365
|
|
|
|
213.65
|
|
Icahn Master II
|
|
3/23/2011
|
|
|
2,558
|
|
|
|
25.58
|
|
Icahn Master II
|
|
4/26/2011
|
|
|
71,564
|
|
|
|
715.64
|
|
Icahn Master II
|
|
4/27/2011
|
|
|
17,447
|
|
|
|
174.47
|
|
Icahn Master II
|
|
4/28/2011
|
|
|
182
|
|
|
|
1.82
|
|
Icahn Master II
|
|
4/29/2011
|
|
|
37,753
|
|
|
|
377.53
|
|
Icahn Master II
|
|
5/12/2011
|
|
|
68,223
|
|
|
|
682.23
|
|
Icahn Master II
|
|
5/13/2011
|
|
|
57,497
|
|
|
|
574.97
|
|
Icahn Master II
|
|
5/16/2011
|
|
|
755
|
|
|
|
7.55
|
|
Icahn Master II
|
|
5/17/2011
|
|
|
13,624
|
|
|
|
136.24
|
|
Icahn Master II
|
|
5/18/2011
|
|
|
99,536
|
|
|
|
995.36
|
|
Icahn Master II
|
|
5/19/2011
|
|
|
126,170
|
|
|
|
1,261.70
|
|
Icahn Master II
|
|
5/20/2011
|
|
|
126,226
|
|
|
|
1,262.26
|
|
Icahn Master II
|
|
5/23/2011
|
|
|
88,408
|
|
|
|
884.08
|
|
Icahn Master II
|
|
5/24/2011
|
|
|
49,853
|
|
|
|
498.53
|
|
Icahn Master II
|
|
5/25/2011
|
|
|
92,180
|
|
|
|
921.80
|
|
Icahn Master II
|
|
5/26/2011
|
|
|
64,059
|
|
|
|
640.59
|
|
Icahn Master II
|
|
6/1/2011
|
|
|
6,014
|
|
|
|
60.14
|
|
Icahn Master II
|
|
6/2/2011
|
|
|
24,296
|
|
|
|
242.96
|
|
Icahn Master II
|
|
6/3/2011
|
|
|
253,176
|
|
|
|
2,531.76
|
|
Icahn Master II
|
|
6/6/2011
|
|
|
53,880
|
|
|
|
538.80
|
|
Icahn Master II
|
|
6/7/2011
|
|
|
149,013
|
|
|
|
1,490.13
|
|
Icahn Master II
|
|
6/8/2011
|
|
|
124,261
|
|
|
|
1,242.61
|
|
Icahn Master II
|
|
6/9/2011
|
|
|
205,601
|
|
|
|
2,056.01
|
|
Icahn Master II
|
|
6/10/2011
|
|
|
158,261
|
|
|
|
1,582.61
|
|
|
|
|
|
Icahn Master III
|
|
3/7/2011
|
|
|
10,190
|
|
|
|
101.90
|
|
Icahn Master III
|
|
3/8/2011
|
|
|
6,357
|
|
|
|
63.57
|
|
Icahn Master III
|
|
3/10/2011
|
|
|
6,543
|
|
|
|
65.43
|
|
Icahn Master III
|
|
3/11/2011
|
|
|
5,095
|
|
|
|
50.95
|
|
Icahn Master III
|
|
3/14/2011
|
|
|
6,773
|
|
|
|
67.73
|
|
Icahn Master III
|
|
3/16/2011
|
|
|
17,141
|
|
|
|
171.41
|
|
Icahn Master III
|
|
3/17/2011
|
|
|
10,189
|
|
|
|
101.89
|
|
Icahn Master III
|
|
3/18/2011
|
|
|
10,378
|
|
|
|
103.78
|
|
Icahn Master III
|
|
3/23/2011
|
|
|
1,243
|
|
|
|
12.43
|
|
Icahn Master III
|
|
4/26/2011
|
|
|
11,944
|
|
|
|
119.44
|
|
Icahn Master III
|
|
4/27/2011
|
|
|
7,569
|
|
|
|
75.69
|
|
A-12
|
|
|
|
|
|
|
|
|
|
|
NAME
|
|
DATE
|
|
Quantity
|
|
|
Option Premium
Received
($)
|
|
Icahn Master III
|
|
4/28/2011
|
|
|
79
|
|
|
|
0.79
|
|
Icahn Master III
|
|
4/29/2011
|
|
|
16,382
|
|
|
|
163.82
|
|
Icahn Master III
|
|
5/12/2011
|
|
|
29,945
|
|
|
|
299.45
|
|
Icahn Master III
|
|
5/13/2011
|
|
|
24,984
|
|
|
|
249.84
|
|
Icahn Master III
|
|
5/16/2011
|
|
|
327
|
|
|
|
3.27
|
|
Icahn Master III
|
|
5/17/2011
|
|
|
5,921
|
|
|
|
59.21
|
|
Icahn Master III
|
|
5/18/2011
|
|
|
43,250
|
|
|
|
432.50
|
|
Icahn Master III
|
|
5/19/2011
|
|
|
54,822
|
|
|
|
548.22
|
|
Icahn Master III
|
|
5/20/2011
|
|
|
54,846
|
|
|
|
548.46
|
|
Icahn Master III
|
|
5/23/2011
|
|
|
38,415
|
|
|
|
384.15
|
|
Icahn Master III
|
|
5/24/2011
|
|
|
21,663
|
|
|
|
216.63
|
|
Icahn Master III
|
|
5/25/2011
|
|
|
40,055
|
|
|
|
400.55
|
|
Icahn Master III
|
|
5/26/2011
|
|
|
27,833
|
|
|
|
278.33
|
|
Icahn Master III
|
|
6/1/2011
|
|
|
3,373
|
|
|
|
33.73
|
|
Icahn Master III
|
|
6/2/2011
|
|
|
10,570
|
|
|
|
105.70
|
|
Icahn Master III
|
|
6/3/2011
|
|
|
110,158
|
|
|
|
1,101.58
|
|
Icahn Master III
|
|
6/6/2011
|
|
|
23,442
|
|
|
|
234.42
|
|
Icahn Master III
|
|
6/7/2011
|
|
|
64,836
|
|
|
|
648.36
|
|
Icahn Master III
|
|
6/8/2011
|
|
|
54,066
|
|
|
|
540.66
|
|
Icahn Master III
|
|
6/9/2011
|
|
|
89,459
|
|
|
|
894.59
|
|
Icahn Master III
|
|
6/10/2011
|
|
|
68,860
|
|
|
|
688.60
|
|
A-13
ANNEX B
[FORM OF NOMINEE AGREEMENT]
ICAHN CAPITAL LP
June 9, 2011
To the undersigned potential nominee:
This will confirm our understanding as
follows:
You agree that you are willing, should we so elect, to become a member of a slate of nominees (the
Slate
) to stand for election as directors of Forest Laboratories, Inc. (
Forest Laboratories
) in connection with a proxy contest with management of Forest Laboratories in respect of the election of directors of
Forest Laboratories at the 2011 Annual Meeting of Shareholders of Forest Laboratories (the
Annual Meeting
), expected to be held in the Summer of 2011, or a special meeting of shareholders of Forest Laboratories called for a
similar purpose (the
Proxy Contest
).
Icahn Capital LP (
Icahn
) agrees to pay the costs
of the Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the SEC, which indicates that Icahn,
or an affiliate thereof, intends to nominate you for election at the Annual Meeting, you will be entitled to be paid $25,000 by Icahn unless you are elected to serve as a director of Forest Laboratories at the Annual Meeting or a special meeting of
shareholders of Forest Laboratories called for a similar purpose or in connection with a settlement of the Proxy Contest by Icahn and Forest Laboratories, in which case you will not receive any payment from Icahn in connection with the Proxy
Contest
*
. Payment to you pursuant to this paragraph, if
any, will be made by Icahn, subject to the terms hereof, upon the earliest of (i) the certification of the results of the election in respect of the Proxy Contest, (ii) the settlement of the Proxy Contest by Icahn and Forest Laboratories,
or (iii) the withdrawal of the Proxy Contest by Icahn.
You understand that it may be difficult, if not impossible, to
replace nominees who, such as yourself, have agreed to serve on the Slate and later change their minds and determine not to seek election. Accordingly, the Slate is relying upon your agreement to seek election. In that connection, you are being
supplied with a questionnaire in which you will provide Icahn with information necessary for Icahn to make appropriate disclosure both to Forest Laboratories and for use in creating the proxy material to be sent to shareholders of Forest
Laboratories and to be filed with the Securities and Exchange Commission. You have agreed that (i) you will immediately complete and sign the questionnaire and return it to Mark DiPaolo, Assistant General Counsel, Icahn Enterprises LP, 767
Fifth Avenue, Suite 4700, New York, NY 10153, Tel: (212) 702-4361, Fax: (212) 688-1158, Email: mdipaolo@sfire.com and (ii) your responses to the questions contained therein will be true and correct in all respects. In addition, you
have agreed that, concurrently with your execution of this letter, you will execute the attached instrument directed to Forest Laboratories informing Forest Laboratories that you consent to being nominated by Icahn, or an affiliate thereof, for
election as a director of Forest Laboratories and, if elected, consent to serving as a director of Forest Laboratories and consent to the disclosure of certain information relating to you as would be required to be disclosed in solicitations of
proxies for your election as a director pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, in any such solicitation made by the Company. You also will make a statement in the attached instrument that if elected, you
intend to tender, promptly following your election or reelection, an irrevocable resignation effective upon your
*
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The applicable agreement with Dr. Ende also provides that he will not be entitled to this fee if Dr. Ende enters into a consulting agreement
with Icahn in connection with the Proxy Context, in form and substance satisfactory to Icahn.
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B-1
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 Companys 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.
B-2
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,
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ICAHN CAPITAL LP
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By:
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Name:
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Title:
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Agreed to and Accepted as
of the date first above written:
B-3
IMPORTANT
1. If your shares of Common Stock are held in your own name, please mark, date and mail the enclosed
GOLD
proxy card to our Proxy
Solicitor, D.F. King & Co., Inc., in the postage-paid envelope provided.
2. If your shares of Common Stock are held
in the name of a brokerage firm, bank nominee or other institution, only it can vote such shares of Common Stock and only upon receipt of your specific instructions. Accordingly, you should contact the person responsible for your account and give
instructions for a
GOLD
proxy card to be signed representing your shares of Common Stock.
3. If you have already
submitted a white proxy card to Forest Laboratories for the Annual Meeting, you may change your vote to a vote
FOR
the election of the Nominee by marking, signing, dating and returning the enclosed
GOLD
proxy card for the Annual
Meeting, which must be dated after any proxy you may have submitted to Forest Laboratories. You may also submit your later-dated proxy by using the enclosed
GOLD
proxy card to vote by telephone or by Internet. ONLY YOUR LATEST DATED PROXY FOR
THE ANNUAL MEETING WILL COUNT AT THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. King & Co., Inc.
Stockholders call toll-free: (800) 697-6975
Banks and Brokerage Firms call: (212) 269-5550
FOREST LABORATORIES, INC.
ANNUAL MEETING OF STOCKHOLDERS
AUGUST 18, 2011
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GOLD PROXY CARD
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GOLD PROXY CARD
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This proxy is solicited by:
MR. CARL C. ICAHN, DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROF. LUCIAN A. BEBCHUK, DR. ERIC J. ENDE, MAYU SRIS, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY CORP., ICAHN
PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II L.P., ICAHN PARTNERS MASTER FUND III L.P., ICAHN ENTERPRISES G.P. INC., ICAHN ENTERPRISES HOLDINGS L.P., IPH GP LLC, ICAHN CAPITAL L.P., ICAHN ONSHORE LP, ICAHN OFFSHORE LP
AND BECKTON CORP. (the Participants)
VOTING CONTROL NUMBER:
THERE ARE THREE WAYS TO AUTHORIZE THE PROXIES TO CAST YOUR VOTES.
YOUR TELEPHONE OR INTERNET VOTE AUTHORIZES THE NAMED PROXIES TO VOTE
YOUR SHARES
IN THE SAME MANNER AS IF YOU HAD RETURNED YOUR PROXY CARD.
WE ENCOURAGE YOU TO USE THESE COST EFFECTIVE AND CONVENIENT WAYS OF
VOTING, 24 HOURS A DAY, 7 DAYS A WEEK.
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TELEPHONE VOTING
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INTERNET VOTING
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VOTING BY MAIL
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This method of voting is available for residents of the U.S. and Canada. On a touch tone telephone, call TOLL FREE 1-888-216-1292, 24 hours a day, 7 days a week. Have this proxy
card ready, then follow the prerecorded instructions. Your vote will be confirmed and cast as you have directed. Available 24 hours a day, 7 days a week until 11:59 p.m. Eastern Daylight Time on August 17, 2011.
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Visit the Internet voting Web site at
https://
www.directvote.com/frx. Have this proxy card ready and follow the instructions on your screen. You will incur only your usual
Internet charges. Available 24 hours a day, 7 days a week until 11:59 p.m. Eastern Daylight Time on August 17, 2011.
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Simply sign and date your proxy card and return it in the postage-paid envelope to D.F. King & Co., Inc., c/o Independent Tabulator, P.O. Box 1997, New York, NY 10117-0024. If
you are voting by telephone or the Internet, please do not mail your proxy card.
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DETACH BELOW AND RETURN USING THE ENVELOPE PROVIDED ONLY IF YOU ARE VOTING BY MAIL
Your vote, whether by Internet, telephone or mail, must be received no later than 11:59 p.m.
Eastern Daylight Time on August 17, 2011 to be included in the voting results.
Detach Here
FOREST LABORATORIES, INC.
ANNUAL MEETING OF STOCKHOLDERS
AUGUST 18, 2011
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GOLD PROXY CARD
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GOLD PROXY CARD
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This proxy is solicited by:
MR. CARL C. ICAHN, DR. ALEXANDER J. DENNER, DR. RICHARD MULLIGAN, PROF. LUCIAN A. BEBCHUK, DR. ERIC J. ENDE, MAYU SRIS, HIGH RIVER
LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY CORP., ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II L.P., ICAHN PARTNERS MASTER FUND III L.P., ICAHN ENTERPRISES G.P. INC., ICAHN ENTERPRISES HOLDINGS L.P., IPH
GP LLC, ICAHN CAPITAL L.P., ICAHN ONSHORE LP, ICAHN OFFSHORE LP AND BECKTON CORP. (the Participants)
The undersigned hereby
appoints and constitutes each of Alexander J. Denner and Mark DiPaolo, Assistant General Counsel of Icahn Enterprises L.P., (acting alone or together) as proxies, with full power of substitution in each, to represent the undersigned at the Annual
Meeting of Stockholders of Forest Laboratories, Inc. (Forest Laboratories) to be held on August 18, 2011 at 10:00 a.m. local time at JPMorgan Chase & Co., 270 Park Avenue, New York, New York 10017, and at any adjournment or
postponement or continuations thereof (the Annual Meeting), hereby revoking any proxies previously given, to vote all shares of Common Stock of Forest Laboratories held or owned by the undersigned as directed below, and in their
discretion upon such other matters as may come before the meeting (provided, however, that the persons named above will be permitted to use such discretionary authority only for matters which they do not know, a reasonable time before the
solicitation, are to be presented at the meeting).
IF NO DIRECTION IS MADE, THE PERSONS NAMED IN THIS
GOLD
PROXY CARD
WILL VOTE YOUR SHARES: (I)
FOR
DR. ALEXANDER J. DENNER FOR DIRECTOR; (II)
FOR
DR. RICHARD MULLIGAN FOR DIRECTOR; (III)
FOR
PROFESSOR LUCIAN A. BEBCHUK FOR DIRECTOR (IV)
FOR
DR. ERIC J.
ENDE FOR DIRECTOR; (V)
FOR
THE PERSONS WHO HAVE BEEN NOMINATED BY FOREST LABORATORIES TO SERVE AS DIRECTORS, OTHER THAN HOWARD SOLOMON, DAN L. GOLDWASSER, KENNETH E. GOODMAN AND LESTER B. SALANS; (VI)
AGAINST
THE
ADVISORY VOTE ON EXECUTIVE COMPENSATION (SAY-ON-PAY VOTE); (VII)
FOR 1 YEAR
ON ADVISORY VOTE ON THE FREQUENCY OF AN ADVISORY VOTE ON THE COMPENSATION OF THE FOREST LABORATORIES NAMED EXECUTIVE OFFICERS
(SAYWHENONPAY VOTE)
;
(VIII)
FOR
THE RATIFICATION OF THE SELECTION OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
;
AND (IX) IN THE PROXY HOLDERS DISCRETION AS TO OTHER MATTERS THAT MAY
PROPERLY COME BEFORE THE ANNUAL MEETING.
The Proxy Statement, as well as other proxy materials distributed by the
Participants, are available
free of charge online at
www.dfking.com/frx
.
SIGN, DATE AND MAIL YOUR PROXY TODAY
UNLESS YOU HAVE VOTED BY TELEPHONE OR BY INTERNET,
(CONTINUED AND TO BE SIGNED
ON THE REVERSE SIDE.)
IF YOU HAVE NOT VOTED BY INTERNET OR TELEPHONE, PLEASE DATE, MARK,
SIGN AND RETURN THIS PROXY PROMPTLY. YOUR VOTE, WHETHER BY
INTERNET, TELEPHONE OR MAIL, MUST BE RECEIVED NO LATER THAN 11:59 PM,
EASTERN
DAYLIGHT TIME, ON AUGUST 17, 2011, TO BE INCLUDED IN THE VOTING
RESULTS.
x
PLEASE MARK VOTES AS IN THIS EXAMPLE.
THE PARTICIPANTS RECOMMEND A VOTE FOR THE ELECTION OF THE NOMINEES LISTED IN PROPOSAL 1 BELOW.
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1.
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Election of directors Nominees:
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¨
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¨
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¨
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(01) Dr. Alexander J. Denner
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FOR ALL
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WITHHELD
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FOR ALL
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(02) Dr. Richard Mulligan
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NOMINEES
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FROM ALL
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EXCEPT
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(03) Prof. Lucian A. Bebchuk
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NOMINEES
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(04) Dr. Eric J. Ende
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PLUS the persons who have been nominated by Forest Laboratories to serve as directors, other than Howard
Solomon, Dan L. Goldwasser, Kenneth E. Goodman and Lester B. Salans. The Participants are NOT seeking authority to vote for and WILL NOT exercise any authority to vote for Howard Solomon, Dan L. Goldwasser, Kenneth E. Goodman and Lester B. Salans.
There is no assurance that any of the Forest Laboratories nominees, will serve as directors if any or all of the Nominees are elected to the Board. You should refer to the proxy statement and form of proxy distributed by Forest Laboratories for the
names, background, qualifications and other information concerning the Forest Laboratories nominees.
NOTE: IF YOU DO NOT WISH
YOUR SHARES VOTED FOR A PARTICULAR NOMINEE, MARK THE FOR ALL EXCEPT BOX AND WRITE THE NAME(S) OF THE NOMINEE(S) YOU DO NOT SUPPORT ON THE LINE BELOW. YOU MAY ALSO WITHHOLD AUTHORITY TO VOTE FOR THE PERSONS WHO HAVE BEEN
NOMINATED BY FOREST LABORATORIES TO SERVE AS DIRECTORS OTHER THAN HOWARD SOLOMON, DAN L. GOLDWASSER, KENNETH E. GOODMAN AND LESTER B. SALANS BY WRITING THE NAMES OF SUCH NOMINEES FOR WHOM YOU WISH TO WITHHOLD AUTHORITY BELOW. YOUR SHARES WILL BE
THEN VOTED FOR THE REMAINING NOMINEE(S).
THE PARTICIPANTS RECOMMEND A VOTE AGAINST IN PROPOSAL 2 BELOW; FOR 1 YEAR IN PROPOSAL 3 BELOW AND FOR IN PROPOSAL
4 BELOW.
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2.
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A proposal to approve, on an advisory basis, the compensation
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¨
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¨
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¨
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of Forest Laboratories Named Executive Officers.
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FOR
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AGAINST
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ABSTAIN
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3.
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Advisory vote on the frequency of future advisory votes on executive compensation.
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¨
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¨
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¨
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¨
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1 YEAR
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2 YEARS
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3 YEARS
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ABSTAIN
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4.
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Ratification of the selection of BDO USA, LLP, as Independent Registered Public Accounting Firm for the fiscal year ending March 31, 2012.
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¨
FOR
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¨
AGAINST
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¨
ABSTAIN
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Please be sure to sign and date this Proxy.
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Signature(s) of Stockholder(s)
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Date
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Signature(s) if held jointly
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Date
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Title, if any
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Please sign exactly as your name(s) appear on this proxy. When Shares are held jointly, each holder
should sign. When signing as Executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is
a partnership, please sign in partnership name by authorized person.
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