SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.2)*
Biogen Idec Inc.
(Name of Issuer)
Common Stock, Par Value $0.0005
(Title of Class of Securities)
09062X103
(CUSIP Number)
Marc Weitzen, Esq.
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4388
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 27, 2010
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
Item 1. Security and Issuer
The Schedule 13D, as amended, filed with the Securities and Exchange
Commission on August 11, 2008 by the Reporting Persons (the "Initial 13D") with
respect to the shares of Common Stock, par value $0.0005 (the "Shares"), issued
by Biogen Idec Inc. (the "Issuer") is hereby amended to furnish the additional
information set forth herein. All capitalized terms contained herein but not
otherwise defined shall have the meanings ascribed to such terms in the Schedule
13D.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended by the addition of the following:
On January 27, 2010, entities affiliated with Mr. Icahn delivered the
"Stockholders' Notice of Nomination of Persons for Election as Directors and
Other Proposed Business at the 2010 Annual Meeting of Stockholders of Biogen
Idec Inc." (the "Notice"), a copy of which is attached hereto as Exhibit I. Such
Notice states the intention of High River, Icahn Partners, Icahn Master, Icahn
Master II and Icahn Master III: (i) to seek to nominate Dr. Thomas F. Deuel, Dr.
Eric Rowinsky and Professor Richard A. Young for election to the Board of
Directors of the Issuer at the 2010 annual meeting of stockholders; and (ii) to
propose certain amendments to the Issuer's Second Amended and Restated Bylaws
that would limit the size of the Board of Directors to twelve.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN, DR. ALEXANDER J.
DENNER, DR. THOMAS F. DEUEL, DR. ERIC ROWINSKY, PROFESSOR RICHARD YOUNG, 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., AND CERTAIN OF THEIR RESPECTIVE AFFILIATES
FROM THE STOCKHOLDERS OF BIOGEN IDEC INC., FOR USE AT ITS ANNUAL MEETING WHEN
AND IF THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION,
INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN ANY SUCH PROXY
SOLICITATION. WHEN AND IF COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF
PROXY WILL BE AVAILABLE TO STOCKHOLDERS OF BIOGEN IDEC INC. FROM THE
PARTICIPANTS AT NO CHARGE AND WILL ALSO BE AVAILABLE AT NO CHARGE AT THE
SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV.
INFORMATION RELATING TO THE PARTICIPANTS IN THIS PROXY SOLICITATION IS CONTAINED
IN SCHEDULE 14A FILED BY MR. ICAHN AND CERTAIN OF HIS AFFILIATES WITH THE
SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 2010, WHICH DOCUMENT IS
AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV.
Item 7. Materials to Be Filed as Exhibits.
Item 7 is hereby amended by the addition of the following:
Exhibit 1. Stockholders' Notice of Nomination of Persons for Election as
Directors and Other Proposed Business at the 2010 Annual
Meeting of Stockholders of Biogen Idec Inc.
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: January 27, 2010
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward E. Mattner
----------------------
Name: Edward Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
ICAHN ENTERPRISES G.P. INC.
By: /s/Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
/s/ Carl C. Icahn
--------------------
CARL C. ICAHN
[Signature Page of Schedule 13D, Amendment No. 2 - Biogen Idec Inc.]
EXHIBIT I
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
HIGH RIVER LIMITED PARTNERSHIP
c/o Icahn Capital Management LP
767 Fifth Avenue, 47th Floor
New York, NY 10153
January 27, 2010
VIA HAND DELIVERY, EMAIL AND FACSIMILE
--------------------------------------
Biogen Idec Inc.
14 Cambridge Center
Cambridge, Massachusetts 02142
Attention: James C. Mullen, Chief Executive Officer
Susan H. Alexander, General Counsel and Secretary
Re: Stockholders' Notice (this "Notice") of Nomination of Persons for Election
Directors and Other Proposed Business at the 2010 Annual Meeting of
Stockholders of Biogen Idec Inc. (the "Corporation")
--------------------------------------------------------------------------
Ladies and Gentlemen:
Icahn Partners LP, a Delaware limited partnership ("Icahn Partners"), Icahn
Partners Master Fund LP, a Cayman Islands exempted limited partnership ("Icahn
Master"), Icahn Partners Master Fund II LP, a Cayman Islands exempted limited
partnership ("Icahn Master II"), Icahn Partners Master Fund III LP, a Cayman
Islands exempted limited partnership ("Icahn Master III") and High River Limited
Partnership, a Delaware limited partnership ("High River", and together with
Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III, the "Record
Holders" and each of them a "Record Holder") hereby submit this notice (this
"Notice") on the date hereof pursuant to the requirements (the "Bylaw
Requirements") of the Second Amended and Restated Bylaws of the Corporation,
adopted as of October 13, 2008 and amended as of June 3, 2009 (the "Bylaws") of
their intent (i) to nominate the Slate (as defined below) for election as
directors of the Corporation at the 2010 annual meeting of stockholders of the
Corporation (the "Annual Meeting"), or a special meeting of stockholders of the
Corporation called for a similar purpose, and as a separate matter and (ii) to
propose certain amendments to the Bylaws. This Notice is submitted by the Record
Holders and on behalf of the Beneficial Owners (as defined in Annex A).
The address of Icahn Partners is 767 Fifth Avenue, 47th Floor, New York, NY
10153. The address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands. The address of Icahn
Master II is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town,
Grand Cayman KY1-9002, Cayman Islands. The address of Icahn Master III is c/o
Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman
KY1-9002, Cayman Islands (1). The address of High River is 767 Fifth Avenue,
47th Floor, New York, NY 10153. Each of Icahn Master, Icahn Master II, Icahn
Master III, Icahn Partners and High River is primarily engaged in the business
of investing in securities.
As of the close of business on January 26, 2010 (i) each of the Record
Holders represents that it is the holder of record of 1000 shares of Common
Stock, par value $0.0005 per share, of the Corporation (the "Shares"); (ii)
Icahn Partners represents that it is the direct beneficial owner of 4,532,847
Shares (including the 1000 Shares of which Icahn Partners is the stockholder of
record); (iii) Icahn Master represents that it is the direct beneficial owner of
5,888,807 Shares (including the 1000 Shares of which Icahn Master is the
stockholder of record); (iv) Icahn Master II represents that it is the direct
beneficial owner of 1,761,077 Shares (including the 1000 Shares of which Icahn
Master II is the stockholder of record); (v) Icahn Master III represents that it
is the direct beneficial owner of 677,474 Shares (including the 1000 Shares of
which Icahn Master III is the stockholder of record); and (vi) High River
represents that it is the direct beneficial owner of 3,215,051 Shares (including
the 1000 Shares of which High River is the stockholder of record), in each case
as further described in Annex A. Carl C. Icahn by virtue of his relationship to
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High River
is deemed to beneficially own (as that term is defined in Rule 13d-3 of the
Securities Act of 1933, as amended) the Shares which Icahn Partners, Icahn
Master, Icahn Master II, Icahn Master III and High River directly beneficially
own, as further described in Annex A.
_________________________
(1) Please note that the following address is set forth on the stock
certificate of each of Icahn Partners, Icahn Master, Icahn Master II, Icahn
Master III and High River as its record address on the books of the
Corporation: c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New
York, New York 10153.
Each of the Record Holders and the Beneficial Owners hereby represents that
each Record Holder and Beneficial Owner will notify the Corporation in writing
of the class, series and number of such Shares owned beneficially and of record
as of the record date for the Annual Meeting (the "Record Date") promptly
following the later of the Record Date or the date notice of the Record Date is
first publicly disclosed, however, such representation is not an admission by
any Record Holder, Nominee or Beneficial Owner or any of their respective
affiliates of the legality thereof or that such notification is required.
Other than as disclosed in Annex A, each of the Record Holders and
Beneficial Owners hereby represents that it does not own any Derivative
Instruments (as defined in the Bylaws) or any other direct or indirect
opportunity to profit or share in any profit derived from any increase or
decrease in the value of the Shares. Each of the Record Holders and the
Beneficial Owners hereby represents that each Record Holder and Beneficial Owner
will notify the Corporation in writing of any such Derivative Instrument in
effect as of the Record Date promptly following the later of the Record Date or
the date notice of the Record Date is first publicly disclosed, however, such
representation is not an admission by any Record Holder, Nominee or Beneficial
Owner or any of their respective affiliates of the legality thereof or that such
notification is required.
Each Record Holder hereby represents that it intends to appear in person or
by proxy at the Annual Meeting to nominate for election as class I directors of
the Corporation the following persons (each, a "Nominee" and collectively, the
"Slate"):
Dr. Thomas F. Deuel
Dr. Eric Rowinsky
Professor Richard A. Young
Dr. Deuel and Dr. Rowinsky are highly accomplished clinical experts in
cancer and Professor Young is a pioneer in gene transcription. The Record
Holders believe that these experts knowledge of science and medicine will
significantly improve the clinical and scientific expertise of the Board of
Directors. We also believe that each nominee is a strong shareholder-oriented
individual who will help represent the best interests of the Corporation's
shareholders.
As a separate matter, in order to restrict the ability of the Board of
Directors to increase the size of the Board, each Record Holder hereby
represents that it intends to appear in person or by proxy at the Annual Meeting
to propose certain amendments to the Bylaws (the "Bylaw Amendments") that would
fix the number of directors at twelve (12).
The Bylaw Amendments are a proper matter for stockholder action under the
General Corporation Law of Delaware. The Record Holders believe that it is in
the best interests of the Corporation's stockholders to limit the size of the
Board of Directors to twelve (12) directors. The Bylaws currently allow the
Board of Directors to increase the size of the board at any time in their
discretion. Furthermore, vacancies resulting from such increases may only be
filled by the Board of Directors. The Record Holders believe that the
shareholders of the Corporation should know with certainty the size of the
Board.
The proposal states:
"RESOLVED, that the Bylaws be and hereby are amended as follows:
- To replace the first sentence of Section 3.1 in its entirety with
the following sentence:
"The number of directors that shall constitute the entire Board
shall be twelve (12)."
- To delete the first sentence of Section 3.2 in its entirety.
- To delete the words "and newly created directorships resulting
from any increase in the authorized number of directors", appearing in
the second sentence of Section 3.2 in their entirety."
In this Notice: (i) certain information relating to the Record Holders and
Beneficial Owners is set forth in the body of this Notice (including the
footnotes hereto) and Annex A; (ii) certain information relating to each Nominee
is set forth in the body of this Notice and Annex B; (iii) the written consent
of each Nominee to being named in the proxy statement as a nominee and to
serving as a director of the Corporation if elected is attached as Annex C; and
(iv) each Nominee has executed a copy of the Director Nominee Representation and
Agreement attached as Annex D. Each Nominee is also party to a nominee agreement
with the Record Holders substantially in the form attached hereto as Annex E,
pursuant to which the Record Holders have agreed to pay certain fees to each
Nominee and to indemnify each Nominee with respect to certain costs incurred by
each Nominee in connection with the proxy contest relating to the Annual Meeting
(the "Nominee Agreement"). In connection with the Record Holders proxy contest
against the Corporation in 2009, Dr. Deuel also entered into a nominee agreement
substantially in the form attached hereto as Annex E and was paid certain fees
by the Record Holders in 2009 in connection with his nomination to the board of
directors of the Corporation.
Each Nominee, Record Holder and Beneficial Owner has an interest in the
election of directors at the Annual Meeting: (i) directly and/or indirectly
through the beneficial ownership (if any) of Shares, as described on the
applicable attachment to Annex A and (ii) pursuant to the Nominee Agreement, if
applicable, relating to such Nominee and each Record Holder.
Other than as disclosed in this Notice, none of the Record Holders, the
Beneficial Owners, or any of their respective affiliates or associates, or any
others acting in concert with any of the foregoing have any agreement,
arrangement or understanding with respect to the nomination of the Nominees or
the Bylaw Amendments. Each Record Holder and Beneficial Owner hereby represents
that it will notify the Corporation in writing of any such agreements,
arrangements or understandings in effect as of the Record Date promptly
following the later of the Record Date or the date notice of the Record Date is
first publicly disclosed.
With respect to each Nominee, other than as disclosed in this Notice, (i)
such Nominee 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
the Corporation, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Nominee nor any of such Nominee's associates have any arrangement
or understanding with any person with respect to (A) any future employment by
the Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Record Holder and Beneficial Owner, other than as
disclosed in this Notice, (i) neither such Record Holder nor such Beneficial
Owner is, nor was, within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of the Corporation,
including, but not limited to, joint ventures, loan or option arrangements, puts
or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies; and (ii) neither such Record
Holder, Beneficial Owner nor any of their respective associates have any
arrangement or understanding with any person with respect to (A) any future
employment by the Corporation or its affiliates or (B) any future transactions
to which the Corporation or any of its affiliates will or may be a party.
With respect to each Nominee, such Nominee is independent under the
independence standards applicable to the Corporation under paragraph (a)(1) of
Item 407 of Regulation S-K.
In response to the Bylaw Requirements, the legality of which neither the
Record Holders nor the Beneficial Owners concede, the Record Holders and the
Beneficial Owners state their intention to deliver a proxy statement and form of
proxy to holders of at least the percentage of the Corporation's outstanding
capital stock required to adopt the Bylaw Amendments, and a sufficient number of
the holders of the Corporation's outstanding capital stock to elect the Slate.
Each Record Holder hereby represents that it intends to solicit proxies in
support of the nomination of the Slate and the adoption of the Bylaw Amendments.
In consideration of providing certain investment advisory, administrative
and back office services to the Record Holders, Icahn Onshore LP, the general
partner of Icahn Partners and Icahn Offshore LP, the general partner of Icahn
Master, Icahn Master II and Icahn Master III, (together, the "General
Partners"), receive from the Record Holders on an annual basis (i) special
profit interest allocations generally equal to 2.5% of the balance in each of
the Record Holders' capital accounts attributable to fee-paying investors and
(ii) incentive allocations generally equal to 25% of the net profits generated
by fee-paying investors of the Record Holders. Therefore, the amounts received
by the General Partners will be affected by the combination of fee-paying assets
under management and the investment performance of the Record Holders (including
any increase or decrease in the value of shares of the Corporation). The General
Partners are owned by Icahn Capital LP, which is a subsidiary of Icahn
Enterprises L.P., a New York Stock Exchange listed master limited partnership
("Icahn Enterprises"). Carl C. Icahn is the indirect owner of the general
partner of Icahn Enterprises and the indirect holder of approximately 92.0% of
the outstanding depositary units representing limited partnership interests in
Icahn Enterprises and approximately 86.5% of the preferred units in Icahn
Enterprises.
The Annexes and all attachments thereto are hereby incorporated into and
made a part of this Notice. Accordingly, all matters disclosed in any part of
this Notice, including the Annexes and all attachments thereto should be deemed
disclosed for all purposes of this Notice. All upper case terms appearing in the
Annexes and all attachments thereto that are not defined in such Annexes and
attachments shall have the meanings given in the body of this Notice or the
Annexes, as applicable.
Information is set forth herein as of the close of business on January 26,
2010. Neither the delivery of this Notice nor any delivery by any Record Holder,
Beneficial Owner, or Nominee of additional information to the Corporation from
and after the date hereof shall be deemed to constitute an admission by any
Record Holder, Beneficial Owner, Nominee or any of their respective affiliates
(if any) that such delivery is required or that each and every item or any item
of information is required or as to the legality or enforceability of any notice
requirement or any other matter, or a waiver by any Record Holder, Beneficial
Owner, Nominee or any of their respective affiliates (if any) of their right to
contest or challenge, in any way, the validity or enforceability of any notice
requirement or any other matter (including actions taken by the Board of
Directors of the Corporation in anticipation of, or following receipt of, this
Notice). Furthermore, if the Board of Directors of the Corporation increases the
number of directors to be nominated and elected at the Annual Meeting, the
Record Holders reserve the right to add additional director nominees in respect
of each such additional directorship. In the event any statement or other
information in this Notice is not correct, or to the extent any applicable
information has been omitted from this Notice, the Record Holders, Beneficial
Owners and Nominees reserve the right to correct and/or supplement any such
statement or other information set forth in this Notice.
The Record Holders have filed a Schedule 13D under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with the Securities and Exchange
Commission (the "SEC") relating to the Corporation (the "Filing"). The Filing,
all attachments and any amendments thereto and all future amendments thereto,
are hereby incorporated into and made a part of this Notice (but only to the
extent that the information disclosed therein constitutes information regarding
the Record Holders, Beneficial Owners or Nominees that is required to be set
forth in this Notice pursuant to the Bylaw Requirements). Accordingly, all such
matters disclosed in any part of the Filing, including all attachments thereto,
should be deemed disclosed for all purposes of this Notice. The Filing, a copy
of which was previously delivered to the Corporation pursuant to Rule 13d-7
under the Exchange Act, is available at no charge at the SEC's website at
http://www.sec.gov. If the Corporation requests additional copies of the Filing,
the Record Holders will provide them and original signed Director Nominee
Representations and Agreements and nominee consents shall be provided upon
written request by the Corporation.
[Signature page follows]
Very truly yours,
ICAHN PARTNERS LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
[Signature page to Stockholders' Notice of Intent to Nominate Persons for
Election as Directors at the 2010 Annual Meeting of Stockholders of
Biogen Idec, Inc.]
ANNEX A
CERTAIN INFORMATION ABOUT BENEFICIAL OWNERSHIP
NAME: Carl C. Icahn
AGE: 73
BUSINESS c/o Icahn Capital LP, 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
Residence 15 West 53rd Street, Penthouse B & C
Address: New York, NY 10019
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Icahn has an interest in the election of directors at the Annual
Meeting indirectly through the beneficial ownership of securities, as described
below.
Carl C. Icahn has served as chairman of the board and a director of Starfire
Holding Corporation ("Starfire"), a privately-held holding company, and chairman
of the board and a director of various subsidiaries of Starfire, since 1984.
Since August 2007, through his position as Chief Executive Officer of Icahn
Capital LP, a wholly-owned subsidiary of Icahn Enterprises L.P. ("Icahn
Enterprises"), and certain related entities, Mr. Icahn's principal occupation is
managing private investment funds, including Icahn Partners LP, Icahn Partners
Master Fund LP, Icahn Partners Master Fund II LP, and Icahn Partners Master Fund
III LP. From November 2004 to August 2007, Mr. Icahn conducted this occupation
through his entities CCI Onshore Corp. and CCI Offshore Corp. Since November
1990, Mr. Icahn has been chairman of the board of Icahn Enterprises G.P. Inc.,
the general partner of Icahn Enterprises. Icahn Enterprises is a diversified
holding company engaged in a variety of businesses, including investment
management, metals, automotive, real estate, railcar, food/packaging and home
fashion. Mr. Icahn was chairman of the board and president of Icahn & Co., Inc.,
a registered broker-dealer and a member of the National Association of
Securities Dealers, from 1968 to 2005. Mr. Icahn has served as chairman of the
board and as a director of American Railcar Industries, Inc., a company that is
primarily engaged in the business of manufacturing covered hopper and tank
railcars, since 1994. From October 1998 through May 2004, Mr. Icahn was the
president and a director of Stratosphere Corporation, the owner and operator of
the Stratosphere Hotel and Casino in Las Vegas, which, until February 2008, was
a subsidiary of Icahn Enterprises. From September 2000 to February 2007, Mr.
Icahn served as the chairman of the board of GB Holdings, Inc., which owned an
interest in Atlantic Coast Holdings, Inc., the owner and operator of The Sands
casino in Atlantic City until November 2006. From September 2006 to November
2008,Mr. Icahn was a director of ImClone Systems Incorporated ("ImClone"), a
biopharmaceutical company, and from October 2006 to November 2008, he was the
chairman of the board of ImClone. Mr. Icahn has been chairman of the board and a
director of XO Holdings, Inc., a telecommunications services provider, since
February 2006, and of its predecessor from January 2003 to February 2006. Mr.
Icahn has served as a director of Cadus Corporation, a company engaged in the
ownership and licensing of yeast-based drug discovery technologies since July
1993. In May 2005, Mr. Icahn became a director of Blockbuster Inc., a provider
of in-home movie rental and game entertainment. In October 2005, Mr. Icahn
became a director of WestPoint International, Inc., a manufacturer of bed and
bath home fashion products. From August 2007 to September 2009, Mr. Icahn was a
director of WCI Communities, Inc. ("WCI"), a homebuilding company. In December
2007, Mr. Icahn became a director of Federal-Mogul Corporation
("Federal-Mogul"), a supplier of automotive products, and since January 2008,
has been the chairman of the board of Federal-Mogul. From August 2008 to October
2009, Mr. Icahn was a director of Yahoo! Inc., a company that provides Internet
services to users, advertisers, publishers and developers worldwide. Mr. Icahn
received his B.A. from Princeton University.
In addition, and 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 Mr. Icahn, Icahn Associates Corp. and High River alleging that High
River's tender offer for Reliance 9% senior notes violated Section 14(e) of the
Exchange Act. Reliance sought a temporary restraining order and preliminary and
permanent injunctive relief to prevent defendants from purchasing the notes. The
Court initially imposed a temporary restraining order. Defendants then
supplemented the tender offer disclosures. The Court conducted a hearing on the
disclosures and other matters raised by Reliance. It then denied plaintiff's
motion for a preliminary injunction and ordered dissolution of its temporary
restraining order following dissemination of the supplement. Reliance took an
immediate appeal to the United States Court of Appeals for the Second Circuit
and sought a stay to restrain defendants from purchasing notes during the
pendency of the appeal. On January 30, 2001, the Court of Appeals denied
plaintiff's stay application. On January 30, Reliance also sought a further
temporary restraining order from the District Court. The Court considered the
matter and reimposed its original restraint until noon the next day, at which
time the restraint was dissolved. The appeal was argued on March 9 and denied on
March 22, 2001.
BENEFICIAL OWNERSHIP OF SECURITIES OF THE
CORPORATION AS OF THE DATE OF THIS NOTICE:
(1) Title of (2) Name of (3) Amount of (4) Percent of
Class Beneficial Beneficial Class (3)
Owner (2) Ownership
Common Stock, High River 3,215,051 1.10%
par value $0.0005
per share
"Shares")
Shares Icahn Partners 4,532,847 1.55%
Shares Icahn Master 5,888,807 2.02%
Shares Icahn Master II 1,761,077 0.60%
Shares Icahn Master III 677,474 0.23%
_________________________
(2) Please note that each Record Holder listed in this table is, as of the date
of this Notice, the direct beneficial owner of the Shares set forth under
the heading "(3) Amount of Beneficial Ownership" and that indirect
beneficial ownership of Shares is described below in the text of this Annex
A under the heading "Description of Beneficial Ownership.
(3) Please note that percentages of ownership set forth in this column were
calculated based on the number of Shares stated to be outstanding as of
October 14, 2009 by the Corporation in the Corporation's Form 10-Q filed
for the quarterly period ended September 30, 2009
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 Record Holders.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is
White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and
(ii) Mr. Icahn, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue,
47th Floor, New York, NY 10153.
Barberry is primarily engaged in the business of serving as the sole member
of Hopper and investing in securities. Hopper is primarily engaged in the
business of serving as the general partner of High River and investing in
securities. Icahn Offshore is primarily engaged in the business of serving as
the general partner of each of Icahn Master, Icahn Master II and Icahn Master
III. Icahn Onshore is primarily engaged in the business of serving as the
general partner of Icahn Partners. Icahn Capital is primarily engaged in the
business of serving as the general partner of each of Icahn Offshore and Icahn
Onshore. IPH is primarily engaged in the business of serving as the general
partner of Icahn Capital. Icahn Holdings is primarily engaged in the business of
holding direct or indirect interests in various operating businesses. Icahn
Enterprises GP is primarily engaged in the business of serving as the general
partner of each of Icahn Enterprises and Icahn Holdings. Beckton is primarily
engaged in the business of holding the capital stock of Icahn Enterprises GP.
The Record Holders and Carl C. Icahn may be deemed to beneficially own, in
the aggregate, 16,075,256 Shares, representing approximately 5.56% of the
Corporation's outstanding Shares (based upon the 289,198,517 Shares stated to be
outstanding as of October 14, 2009 by the Corporation in the Corporation's Form
10-Q filed for the quarterly period ended September 30, 2009).
High River has sole voting power and sole dispositive power with regard to
3,215,051 Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting power
and shared dispositive power with regard to such Shares. Icahn Partners has sole
voting power and sole dispositive power with regard to 4,532,847 Shares. Each of
Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton
and Mr. Icahn has shared voting power and shared dispositive power with regard
to such Shares. Icahn Master has sole voting power and sole dispositive power
with regard to 5,888,807 Shares. Each of Icahn Offshore, Icahn Capital, IPH,
Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting
power and shared dispositive power with regard to such Shares. Icahn Master II
has sole voting power and sole dispositive power with regard to 1,761,077
Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and shared
dispositive power with regard to such Shares. Icahn Master III has sole voting
power and sole dispositive power with regard to 677,474 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn has shared voting power and shared dispositive power with regard to
such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 3,215,051 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 4,532,847 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 8,327,358 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of any call options, if any, 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/SOLD
---- ---- ---------------------
HIGH RIVER
High River January 24, 2008 33,000
High River January 25, 2008 390,000
High River August 1, 2008 180,000
High River August 1, 2008 541,600
High River August 4, 2008 100,000
High River August 5, 2008 4,900
High River August 6, 2008 39,280
High River August 7, 2008 50,000
High River August 8, 2008 7,680
High River August 11, 2008 620
High River August 11, 2008 91,000
High River October 28, 2008 (340,000)
High River October 29, 2008 (225,000)
High River December 2, 2008 54,300
High River December 3, 2008 62,133
High River December 4, 2008 131,153
High River December 5, 2008 30,204
ICAHN PARTNERS
Icahn Partners January 24, 2008 34,982
Icahn Partners January 25, 2008 585,855
Icahn Partners August 1, 2008 287,915
Icahn Partners August 1, 2008 1,108,403
Icahn Partners August 4, 2008 159,953
Icahn Partners August 5, 2008 7,013
Icahn Partners August 6, 2008 62,819
Icahn Partners August 7, 2008 79,965
Icahn Partners August 8, 2008 12,282
Icahn Partners August 11, 2008 992
Icahn Partners August 11, 2008 145,534
Icahn Partners October 28, 2008 (866,819)
Icahn Partners October 29, 2008 (336,851)
Icahn Partners December 4, 2008 92,838
Icahn Partners December 5, 2008 42,583
ICAHN MASTER
Icahn Master January 24, 2008 85,509
Icahn Master January 25, 2008 677,871
Icahn Master August 1, 2008 293,286
Icahn Master August 1, 2008 611,947
Icahn Master August 4, 2008 162,937
Icahn Master August 5, 2008 9,307
Icahn Master August 6, 2008 64,018
Icahn Master August 7, 2008 81,488
Icahn Master August 8, 2008 12,518
Icahn Master August 11, 2008 1,010
Icahn Master August 11, 2008 148,309
Icahn Master October 28, 2008 (259,138)
Icahn Master October 29, 2008 (387,686)
Icahn Master December 2, 2008 217,200
Icahn Master December 3, 2008 244,430
Icahn Master December 4, 2008 310,807
Icahn Master December 5, 2008 55,323
ICAHN MASTER II
Icahn Master II January 24, 2008 7,764
Icahn Master II January 25, 2008 214,839
Icahn Master II August 1, 2008 100,573
Icahn Master II August 1, 2008 322,181
Icahn Master II August 4, 2008 55,873
Icahn Master II August 5, 2008 2,419
Icahn Master II August 6, 2008 21,943
Icahn Master II August 7, 2008 27,932
Icahn Master II August 8, 2008 4,291
Icahn Master II August 11, 2008 346
Icahn Master II August 11, 2008 50,836
Icahn Master II October 28, 2008 (170,073)
Icahn Master II October 29, 2008 (127,108)
Icahn Master II December 4, 2008 85,212
Icahn Master II December 5, 2008 16,545
ICAHN MASTER III
Icahn Master III January 24, 2008 3,745
Icahn Master III January 25, 2008 81,435
Icahn Master III August 1, 2008 38,226
Icahn Master III August 1, 2008 123,869
Icahn Master III August 4, 2008 21,237
Icahn Master III August 5, 2008 861
Icahn Master III August 6, 2008 8,340
Icahn Master III August 7, 2008 10,615
Icahn Master III August 8, 2008 1,629
Icahn Master III August 11, 2008 132
Icahn Master III August 11, 2008 19,321
Icahn Master III October 28, 2008 (63,970)
Icahn Master III October 29, 2008 (48,355)
Icahn Master III December 3, 2008 4,103
Icahn Master III December 4, 2008 35,757
Icahn Master III December 5, 2008 6,364
Shares purchased by each of the Record Holders are maintained in margin accounts
that include positions in securities in addition to the Shares. As of January
26, 2010, the indebtedness of the margin account of each of High River, Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III was approximately
$402.4 million, $25.4 million, $147.0 million, $4.6 million, and zero,
respectively.
ANNEX B
ATTACHMENT 1
Information about Nominees
NAME: Richard A. Young, PhD
AGE: 55
BUSINESS Whitehead Institute for Biomedical Research
ADDRESS: Nine Cambridge Center
Cambridge, MA 02142
RESIDENCE 261 Highland Street
ADDRESS: Weston, MA 02493
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Dr. Young does not own, beneficially or of record, any shares of capital stock
of the Corporation. Dr. Young has an interest in the election of directors at
the Annual Meeting pursuant to the Nominee Agreement attached hereto as Annex E.
Dr. Young is a Member of the Whitehead Institute and a Professor of Biology at
MIT. He received his B.S. degree in Biological Sciences at Indiana University
and his Ph.D. in Molecular Biophysics and Biochemistry at Yale University. Dr.
Young received postdoctoral training at the Swiss Institute for Experimental
Cancer Research and at Stanford University School of Medicine. His honors
include a Burroughs Wellcome Scholarship, the Chiron Corporation Biotechnology
Research Award, Yale's Wilbur Cross Medal, and Scientific American recognized
him as one of the top 50 leaders in science, technology and business in 2006.
Dr. Young has been associated with a number of biotechnology, pharmaceuticals
and other companies, including MedImmune (as member of the Scientific Advisory
Board), Boehringer Mannheim (as Advisor to Board), Becton Dickenson (as
Consultant), Cubist Pharmaceuticals (as member of the Scientific Advisory
Board), StressGen (as member of the Scientific Advisory Board and Board of
Directors), Neogenesis (as founder and member of the Scientific Advisory Board
and Board of Directors; acquired by Schering-Plough), Computational Biology
Corporation (as founder and member of the Scientific Advisory Board and Board of
Directors; acquired by Agilent), Agilent (as Consultant), Corning, Inc. (as
Consultant) and Novartis (as Ad Hoc member of the Scientific Advisory Board).
Dr. Young has also served as an advisor to Science magazine, the National
Institutes of Health and the World Health Organization.
ANNEX B
ATTACHMENT 3
Information about Nominees
NAME: Thomas F. Deuel, M.D.
AGE: 74
BUSINESS The Scripps Research Institute, MEM 268
ADDRESS: 10550 North Torrey Pines Road
La Jolla, CA 92037
RESIDENCE 2123 De Mayo Road
ADDRESS: Del Mar, CA 92014
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Dr. Deuel does not own, beneficially or of record, any shares of capital stock
of the Corporation. Dr. Deuel has an interest in the election of directors at
the Annual Meeting pursuant to the Nominee Agreement attached hereto as Annex E.
Since February 2002, Thomas F. Deuel, M.D., has served as a Professor of
Molecular and Experimental Medicine and Cell Biology, Director of the Division
of Molecular Oncology, Department of Molecular and Experimental Medicine, and
Director of the Vascular Biology Affinity Group at The Scripps Research
Institute. Also, since 1998, Dr. Deuel has served as a Professor of Medicine at
Harvard Medical School. He is currently a Professor Emeritus at Harvard Medical
School. In addition, from 1996 to 2002, Dr. Deuel served as a Director, Division
of Growth Regulation at Beth Israel Hospital, Boston, Massachusetts and, prior
to that, was a Professor of Medicine and Biochemistry and the head of Oncology
Services at the Washington University School of Medicine, St. Louis, Missouri.
He is a member of the Institute of Medicine at the National Academy of Sciences.
Dr. Deuel is also President of the Edward R. Mallinckrodt Foundation, St. Louis,
Missouri. He has served on various editorial boards, including the Journal of
Clinical Investigation and Blood, and currently is on the Editorial Board of
Current Opinion in Hematology and Section Editor for Vascular Biology. Dr. Deuel
has served and continues to serve on numerous scientific advisory boards for
various companies, including scientific advisory board of Imclone Systems
Incorporated, a publicly traded biopharmaceutical company, during the existence
of such board (from 1988 to 2001). From July 2007 to December 2008, Dr. Deuel
served on Imclone's board of directors. Dr. Deuel has earned many professional
honors and awards and holds an M.D. from Columbia University and an A.B. from
Princeton University.
ANNEX B
ATTACHMENT 3
Information about Nominees
NAME: Dr. Eric Rowinsky
AGE: 53
BUSINESS 5 Robin Road
ADDRESS: Warren, NJ 07059
RESIDENCE 5 Robin Road
ADDRESS: Warren, NJ 07059
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Dr. Rowinsky does not own, beneficially or of record, any shares of capital
stock of the Corporation. Dr. Rowinsky has an interest in the election of
directors at the Annual Meeting pursuant to the Nominee Agreement attached
hereto as Annex E.
Dr. Rowinsky is currently a scientific consultant for companies including
ImClone Systems, RRD International, and Champions Biotech. He is also an Adjunct
Professor of Medicine at New York University. From February 2005 to December
2009, Dr. Rowinsky was the Chief Medical Officer and Executive Vice President of
ImClone Systems Incorporated, and was a director of ImClone Systems from
February 2005 to November 2008. Dr. Rowinsky held the position of Director of
the Institute of Drug Development (IDD) at the Cancer Therapy and Research
Center from 2002 to 2004 and was the Director of Clinical Research at the IDD
from 1996 to 2002. In addition, he held the SBC Endowed Chair for Early Drug
Development at the IDD. From 1996 to 2006, Dr Rowinsky was also a Clinical
Professor of Medicine at the University of Texas Health Science Center, San
Antonio, Texas. Dr. Rowinsky also served as an Associate Professor of Oncology
at the Johns Hopkins University School of Medicine from 1988 until 1996. His
focus is cancer drug development and has played integral roles in the
development and approval of a large number of chemotherapy and targeted
therapeutics including paclitaxel, docetaxel, irinotecan, topotecan, erlotinib,
gefitinib, cetuximab, and temsirolimus among others. He currently serves on the
Board of Directors of Adventrx Pharmaceuticals and has served as a director at
Tapestry Pharmaceuticals. Dr. Rowinsky has also served on the Board of
Scientific Counselors of the National Cancer Institute from 2004 to 2007. Dr.
Rowinsky received a B.A. degree from New York University and an M.D. degree from
the Vanderbilt University School of Medicine. Following his residency in
internal medicine at the University of California, San Diego, he completed
fellowship training in medical oncology at the Johns Hopkins University School
of Medicine.
ANNEX C
The written consent of each Nominee to being named as a nominee for election as
a director of the Corporation and to serve as a director if elected is attached
to this Annex C. If the Corporation requests original signed statements of
consents, the Record Holders will provide them.
ANNEX C
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Biogen Idec Inc. (the "Company"), in the proxy statement to be
filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by High River Limited Partnership ("High River"),
Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn
Master"), Icahn Partners Master Fund II LP ("Icahn Master II"), Icahn Partners
Master Fund III LP ("Icahn Master III", and collectively with High River, Icahn
Partners, Icahn Master and Icahn Master II, the "Record Holders") and in other
materials in connection with the solicitation of proxies by the Record Holders
from stockholders of the Company to be voted at the 2010 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
Dated: January 24, 2010
/s/ Eric Rowinsky
---------------------
Name: Eric Rowinsky
ANNEX C
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as a
director of Biogen Idec Inc. (the "Company"), in the proxy statement to be filed
with the Securities and Exchange Commission and distributed to stockholders of
the Company by High River Limited Partnership ("High River"), Icahn Partners LP
("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn Master"), Icahn
Partners Master Fund II LP ("Icahn Master II"), Icahn Partners Master Fund III
LP ("Icahn Master III", and collectively with High River, Icahn Partners, Icahn
Master and Icahn Master II, the "Record Holders") and in other materials in
connection with the solicitation of proxies by the Record Holders from
stockholders of the Company to be voted at the 2010 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
Dated: January 24, 2010
/s/ Thomas F. Deuel
------------------------
Name: Thomas F. Deuel
ANNEX C
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as a
director of Biogen Idec Inc. (the "Company"), in the proxy statement to be filed
with the Securities and Exchange Commission and distributed to stockholders of
the Company by High River Limited Partnership ("High River"), Icahn Partners LP
("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn Master"), Icahn
Partners Master Fund II LP ("Icahn Master II"), Icahn Partners Master Fund III
LP ("Icahn Master III", and collectively with High River, Icahn Partners, Icahn
Master and Icahn Master II, the "Record Holders") and in other materials in
connection with the solicitation of proxies by the Record Holders from
stockholders of the Company to be voted at the 2010 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
Dated: January 24, 2010
/s/ Richard Young
-------------------
Name: Richard Young
ANNEX D
The Director Nominee Representation and Agreement, executed by each of the
Nominees is attached to this Annex D. If the Corporation requests original
signed agreements of the Director Nominee Representation and Agreement, the
Record Holders will provide them.
DIRECTOR NOMINEE REPRESENTATION AND AGREEMENT
Reference is made to the Second Amended and Restated Bylaws of Biogen Idec Inc.
(the "Company") adopted as of October 13, 2008 (the "Bylaws"), which require
that, in order to be eligible to be a nominee for election or reelection as a
director of the Company, a person must timely deliver a representation and
agreement in compliance with the Bylaws (capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Bylaws).
1. The undersigned, in order to be eligible to be a nominee for election or
reelection as a director of the Company, does hereby represent and warrant
that the undersigned:
a. is not a party to (i) a Voting Commitment that has not been
disclosed to the Company or (ii) any Voting Commitment that could
limit or interfere with the undersigned's ability to comply, if
elected as a director of the Company, with the undersigned's fiduciary
duties under applicable law;
b. is not a party to any agreement, arrangement or understanding
with any person or entity other than the Company with respect to any
direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been
disclosed to the Company; and
c. would be in compliance, in the undersigned's individual capacity
and on behalf of any person or entity on whose behalf the
undersigned's nomination is being made, if elected as a director of
the Company, with applicable law and all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock
ownership and trading policies and guidelines of the Company,
including, without limitation, the Company's Code of Business Conduct,
the Company's Corporate Governance Principles and the Company's
Comprehensive Compliance Program.
2. The undersigned does herby further covenant and agree that the undersigned:
a. will not become a party to (i) a Voting Commitment that has not
been disclosed to the Company or (ii) any Voting Commitment that could
limit or interfere with the undersigned's ability to comply, if
elected as a director of the Company, with the undersigned's fiduciary
duties under applicable law;
b. will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Company with
respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director
that has not been disclosed to the Company; and
c. will comply, in the undersigned's individual capacity and on
behalf of any person or entity on whose behalf the undersigned's
nomination is being made, with applicable law and all applicable
publicly disclosed corporate governance, conflict of interest,
confidentially and stock ownership and trading policies and guidelines
of the Company, including, without limitation, the Company's Code of
Business Conduct, the Company's Corporate Governance Principles and
the Company's Comprehensive Compliance Program.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has duly executed this Director Nominee
Representation and Agreement as of the 24th day of January, 2010.
/s/ Eric Rowinsky
-------------------
Name: Eric Rowinsky
DIRECTOR NOMINEE REPRESENTATION AND AGREEMENT
Reference is made to the Second Amended and Restated Bylaws of Biogen Idec Inc.
(the "Company") adopted as of October 13, 2008 (the "Bylaws"), which require
that, in order to be eligible to be a nominee for election or reelection as a
director of the Company, a person must timely deliver a representation and
agreement in compliance with the Bylaws (capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Bylaws).
1. The undersigned, in order to be eligible to be a nominee for election or
reelection as a director of the Company, does hereby represent and warrant
that the undersigned:
a. is not a party to (i) a Voting Commitment that has not been
disclosed to the Company or (ii) any Voting Commitment that could
limit or interfere with the undersigned's ability to comply, if
elected as a director of the Company, with the undersigned's fiduciary
duties under applicable law;
b. is not a party to any agreement, arrangement or understanding
with any person or entity other than the Company with respect to any
direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been
disclosed to the Company; and
c. would be in compliance, in the undersigned's individual capacity
and on behalf of any person or entity on whose behalf the
undersigned's nomination is being made, if elected as a director of
the Company, with applicable law and all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock
ownership and trading policies and guidelines of the Company,
including, without limitation, the Company's Code of Business Conduct,
the Company's Corporate Governance Principles and the Company's
Comprehensive Compliance Program.
2. The undersigned does herby further covenant and agree that the undersigned:
a. will not become a party to (i) a Voting Commitment that has not
been disclosed to the Company or (ii) any Voting Commitment that could
limit or interfere with the undersigned's ability to comply, if
elected as a director of the Company, with the undersigned's fiduciary
duties under applicable law;
b. will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Company with
respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director
that has not been disclosed to the Company; and
c. will comply, in the undersigned's individual capacity and on
behalf of any person or entity on whose behalf the undersigned's
nomination is being made, with applicable law and all applicable
publicly disclosed corporate governance, conflict of interest,
confidentially and stock ownership and trading policies and guidelines
of the Company, including, without limitation, the Company's Code of
Business Conduct, the Company's Corporate Governance Principles and
the Company's Comprehensive Compliance Program.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has duly executed this Director Nominee
Representation and Agreement as of the 24th day of January, 2010.
/s/ Thomas Deuel
------------------
Name: Thomas Deuel
DIRECTOR NOMINEE REPRESENTATION AND AGREEMENT
Reference is made to the Second Amended and Restated Bylaws of Biogen Idec Inc.
(the "Company") adopted as of October 13, 2008 (the "Bylaws"), which require
that, in order to be eligible to be a nominee for election or reelection as a
director of the Company, a person must timely deliver a representation and
agreement in compliance with the Bylaws (capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Bylaws).
1. The undersigned, in order to be eligible to be a nominee for election or
reelection as a director of the Company, does hereby represent and warrant
that the undersigned:
a. is not a party to (i) a Voting Commitment that has not been
disclosed to the Company or (ii) any Voting Commitment that could
limit or interfere with the undersigned's ability to comply, if
elected as a director of the Company, with the undersigned's fiduciary
duties under applicable law;
b. is not a party to any agreement, arrangement or understanding
with any person or entity other than the Company with respect to any
direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been
disclosed to the Company; and
c. would be in compliance, in the undersigned's individual capacity
and on behalf of any person or entity on whose behalf the
undersigned's nomination is being made, if elected as a director of
the Company, with applicable law and all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock
ownership and trading policies and guidelines of the Company,
including, without limitation, the Company's Code of Business Conduct,
the Company's Corporate Governance Principles and the Company's
Comprehensive Compliance Program.
2. The undersigned does herby further covenant and agree that the undersigned:
a. will not become a party to (i) a Voting Commitment that has not
been disclosed to the Company or (ii) any Voting Commitment that could
limit or interfere with the undersigned's ability to comply, if
elected as a director of the Company, with the undersigned's fiduciary
duties under applicable law;
b. will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Company with
respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director
that has not been disclosed to the Company; and
c. will comply, in the undersigned's individual capacity and on
behalf of any person or entity on whose behalf the undersigned's
nomination is being made, with applicable law and all applicable
publicly disclosed corporate governance, conflict of interest,
confidentially and stock ownership and trading policies and guidelines
of the Company, including, without limitation, the Company's Code of
Business Conduct, the Company's Corporate Governance Principles and
the Company's Comprehensive Compliance Program.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has duly executed this Director Nominee
Representation and Agreement as of the 24th day of January, 2010.
/s/ Richard Young
-------------------
Name: Richard Young
ANNEX E
Attached to this Annex E is the form of agreement pursuant to which the Record
Holders have agreed to pay certain fees to certain of the Nominees and to
indemnify such Nominees with respect to certain costs incurred by such Nominees
in connection with the proxy contest relating to the Annual Meeting.
HIGH RIVER LIMITED PARTNERSHIP
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
January 24, 2010
Dear ___________:
This will confirm our understanding as follows:
You agree that you are willing, should we so elect, to become a member of a
slate of nominees (the "Slate") to stand for election as directors of Biogen
Idec Inc. ("Biogen") in connection with a proxy contest with management of
Biogen in respect of the election of directors of Biogen at the 2010 Annual
Meeting of Stockholders of Biogen (the "Annual Meeting"), expected to be held in
the Spring of 2010, or a special meeting of stockholders of Biogen called for a
similar purpose (the "Proxy Contest").
High River Limited Partnership, Icahn Partners LP, Icahn Partners Master
Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP
(collectively, "Icahn"), agree to pay the costs of the Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the SEC,
which indicates that Icahn intends to nominate you for election at the Annual
Meeting, you will be paid $25,000 by Icahn unless you are elected to serve as a
director of Biogen at the Annual Meeting or a special meeting of stockholders of
Biogen called for a similar purpose or in connection with a settlement of the
Proxy Contest by Icahn and Biogen, 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 Biogen, 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 Biogen and for use in
creating the proxy material to be sent to stockholders of Biogen 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 Andrew N.
Langham, Assistant General Counsel, Icahn Enterprises LP, 767 Fifth Avenue,
Suite 4700, New York, NY 10153, Tel: (212) 702-4382, Fax: (212) 688-1158, Email:
alangham@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 Biogen informing Biogen that you consent to being
nominated by Icahn for election as a director of Biogen and, if elected, consent
to serving as a director of Biogen. Upon being notified that we have chosen you,
we may forward that consent and your completed questionnaire (or summaries
thereof) to Biogen.
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 Biogen 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 Biogen's Board of Directors or for any
actions taken by you as a director of Biogen, 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 Biogen 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 Biogen
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 Biogen.
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,
HIGH RIVER LIMITED PARTNERSHIP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as
of the date first above written:
__________________________
Name: