SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[X] Soliciting Material Pursuant to 240.14a-12
Commercial Metals Company
(Name of Registrant as Specified In Its Charter)
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II L.P.
Icahn Partners Master Fund III L.P.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital L.P.
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
James Unger
Steve Mongillo
George Hebard
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
On October 19, 2011, entities affiliated with Carl C. Icahn (the "Icahn
Entities") delivered a notice (the "Nomination Letter") to the Corporate
Secretary of Commercial Metals Company (the "Company") of their intent to
nominate James Unger, Steve Mongillo and George Hebard for election to the board
of directors of the Company at the 2012 annual meeting of stockholders of the
Issuer (the "2012 Annual Meeting"), or a special meeting of stockholders of the
Issuer called for a similar person. The Icahn Entities also stated in the
Nomination Letter their intent to propose other business to be transacted at the
2012 Annual Meeting, including a precatory proposal that the Company redeem its
poison pill and a Bylaw amendment to require stockholder approval in order to
adopt a poison pill. The Nomindation Letter, including the full text of the
proposals, is incorporated herein and attached hereto as Exhibit 1.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN, JAMES UNGER, STEVE
MONGILLO, GEORGE HEBARD, 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. AND CERTAIN OF THEIR RESPECTIVE
AFFILIATES FROM THE STOCKHOLDERS OF COMMERCIAL METALS COMPANY FOR USE AT ITS
2012 ANNUAL MEETING WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN
SUCH PROXY SOLICITATION. WHEN COMPLETED, A DEFINITIVE PROXY STATEMENT AND A
FORM OF PROXY WILL BE MAILED TO STOCKHOLDERS OF COMMERCIAL METALS COMPANY 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 A
POTENTIAL PROXY SOLICITATION IS CONTAINED IN EXHIBIT 2 HERETO.
EXHIBIT 1
Notice of Nominations of Persons for Election to the Board of Directors
And Proposal of Other Business to be Transacted by the Stockholders at the
2012 Annual Meeting of Stockholders of Commercial Metals Company
--------------------------------------------------------------------------
HIGH RIVER LIMITED PARTNERSHIP
c/o Icahn Associates Corp.
767 Fifth Avenue, 46th Floor
New York, NY 10153
October 18, 2011
VIA HAND DELIVERY, FEDERAL EXPRESS, FACSIMILE AND EMAIL
-------------------------------------------------------
Commercial Metals Company
6565 North MacArthur Boulevard, Suite 800
Irving, Texas 75039
Attention: Ann J. Bruder, Corporate Secretary
Re: Notice (this "Notice") of Nominations of Persons for Election to the Board
of Directors and the Proposal of Other Business to be Transacted by the
Stockholders at the 2012 Annual Meeting of Stockholders of Commercial
Metals Company (the "Corporation")
---------------------------------------------------------------------------
Ladies and Gentlemen:
High River Limited Partnership, a Delaware limited partnership ("High
River" or the "Record Holder") hereby submits this Notice on the date hereof
pursuant to the requirements (the "Bylaw Requirements") set forth in the Second
Amended and Restated Bylaws of the Corporation (the "Bylaws"), of its intent to
make the Proposals (as defined below) and to nominate each person on the Slate
(as defined below) for election to the board of directors of the Corporation at
the 2012 annual meeting of Stockholders of the Corporation (the "Annual
Meeting"), or a special meeting of Stockholders of the Corporation called for a
similar purpose. This Notice is submitted by the Record Holder and on behalf of
the Direct Beneficial Owners (as defined below) and the Beneficial Owners (as
defined in Annex A).
As of the close of business on October 18, 2011, (i) High River represents
that it is the holder of record of, and is entitled to vote, 1000 shares of
Common Stock, $0.01 par value per share, of the Corporation (the "Shares") and
that it is the direct beneficial owner of 2,304,999 Shares (including the 1000
Shares of which High River is the stockholder of record); (ii) Icahn Partners
LP, a Delaware limited partnership ("Icahn Partners"), represents that it is the
direct beneficial owner of 3,531,955 Shares and that it is not the holder of
record of any Shares; (iii) Icahn Partners Master Fund LP, a Cayman Islands
exempted limited partnership ("Icahn Master"), represents that it is the direct
beneficial owner of 3,808,353 Shares and that it is not the holder of record of
any Shares; (iv) Icahn Partners Master Fund II L.P., a Cayman Islands exempted
limited partnership ("Icahn Master II"), represents that it is the direct
beneficial owner of 1,310,448 Shares and that it is not the holder of record of
any Shares; (v) Icahn Partners Master Fund III L.P., a Cayman Islands exempted
limited partnership ("Icahn Master III" and collectively with High River, Icahn
Partners, Icahn Master and Icahn Master II, the "Direct Beneficial Owners"),
represents that it is the direct beneficial owner of 569,245 Shares and that it
is not the holder of record of any Shares, in each case, as further described in
Annex A. Carl C. Icahn, by virtue of his relationship to High River, Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III is deemed to
beneficially own (as that term is defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) the Shares which High
River, Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III
directly beneficially own, as further described in Annex A.
The address of Icahn Partners is 767 Fifth Avenue, 47th Floor, New York, NY
10153. The address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands. The address of Icahn
Master II is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town,
Grand Cayman KY1-9002, Cayman Islands. The address of Icahn Master III is c/o
Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman
KY1-9002, Cayman Islands. The address of High River is 767 Fifth Avenue, 46th
Floor, New York, NY 10153. Each of Icahn Master, Icahn Master II, Icahn Master
III, Icahn Partners and High River is primarily engaged in the business of
investing in securities. High River believes that its name and address set forth
above is the name and address for the Record Holder that appears on the
Corporation's books.
DIRECTOR NOMINEES
-----------------
The Record Holder hereby represents that it intends to appear in person or
by proxy at the Annual Meeting to nominate for election to the board of
directors of the Corporation (the "Board") the following persons (each, a
"Nominee" and collectively, the "Slate"):
James Unger
Steve Mongillo
George Hebard
Mr. Unger has over 30 years of experience in the railcar industry and has
extensive knowledge of the operational issues facing industrial companies. Mr.
Mongillo has over 25 years of experience in the financial industry and has a
strong understanding of the complex business and financial issues encountered by
large complex companies. Mr. Hebard has a strong record as a sophisticated
investor and has a broad understanding of the operational, financial and
strategic issues facing public and private companies. The Record Holder believes
that these individuals' knowledge of operations, investments and corporate
finance will add to the business expertise and leadership of the Board. The
Record Holder also believes that each Nominee is a strong stockholder-oriented
individual who will help represent the best interests of the Corporation's
stockholders.
The Record Holder hereby further represents that it intends to appear in
person or by proxy at the Annual Meeting to make the following proposals (the
"Proposals") for consideration by the Corporation's Stockholders:
PROPOSAL 1
----------
To adopt a resolution of the Corporation's Stockholders strongly urging the
Board to immediately redeem any and all outstanding Rights (as defined in the
Rights Agreement (as defined below)) issued pursuant to that certain Rights
Agreement, dated as of July 30, 2011, between the Corporation and Broadridge
Corporate Issuer Solutions, Inc. (the "Rights Agreement" or the "Poison Pill")
in accordance with Section 23 of the Rights Agreement and to terminate the
Rights Agreement immediately thereafter.
The following is the text of the proposed resolution:
"RESOLVED, that the Stockholders of the Corporation hereby strongly
urge the Board of Directors of the Corporation (the "Board") to immediately
redeem (the "Redemption") any and all outstanding Rights (as defined in the
Rights Agreement (as defined below)) issued pursuant to that certain Rights
Agreement, dated as of July 30, 2011, between the Corporation and
Broadridge Corporate Issuer Solutions, Inc. (the "Rights Agreement") in
accordance with Section 23 of the Rights Agreement and to terminate the
Rights Agreement immediately thereafter; and be it further
RESOLVED, that the Stockholders of the Corporation hereby strongly
urge the Board to not establish any conditions to the Redemption, other
than as specifically required by and set forth in the Rights Agreement; and
be it further
RESOLVED, that the Stockholders of the Corporation hereby strongly
urge the Board to immediately order the Redemption and give immediate
public notice of the Redemption."
PROPOSAL 2
----------
To adopt a resolution that would amend the Bylaws to require stockholder
approval in order to authorize, establish, adopt, or amend any rights plan,
poison pill or similar plan.
The following is the text of the proposed resolution:
"RESOLVED, that the Second Amended and Restated Bylaws of the
Corporation shall be amended to add the following provisions:
ARTICLE XII
POISON PILLS
(a) In addition to any affirmative vote of stockholders required by any
provision of law, the restated certificate of incorporation of the
corporation or these Bylaws, the corporation shall not authorize,
establish, adopt, or amend any Poison Pill (as defined in subsection
(b) below) without the affirmative vote of the holders of a majority
of the voting power of all of the then-outstanding shares of capital
stock of the corporation entitled to vote generally in the election of
directors, voting as a single class.
(b) For purposes of these Bylaws, a "Poison Pill" shall mean any plan or
arrangement of the sort commonly referred to as a "rights plan" or
"stockholder rights plan" or "shareholder rights plan" or "poison
pill" that is designed to prevent or make more difficult a hostile
takeover of the corporation by increasing the cost to a potential
acquirer in such a takeover either through the issuance of new rights,
shares of common stock or preferred stock or any other security or
device that may be issued to stockholders of the corporation other
than ratably to all stockholders of the corporation that carry severe
redemption provisions, favorable purchase provisions or otherwise.
(c) Notwithstanding Section 7 "Amendment" of Article X of these Bylaws,
no provision of this Article XII may be amended, modified, repealed or
superseded without the affirmative vote of the holders of a majority
of the voting power of all of the then-outstanding shares of capital
stock of the corporation entitled to vote generally in the election of
directors, voting as a single class."
PROPOSAL 3
----------
To adopt a resolution that would repeal any provision of the Bylaws in
effect at the time of the Annual Meeting that was not included in the Bylaws as
publicly filed with the Securities and Exchange Commission prior to October 18,
2011, and is inconsistent with any of the foregoing proposals that are approved
by the stockholders at the Annual Meeting.
The Record Holder is not aware of any such provision of the Bylaws that has
become effective, but it is possible that following the date of this Notice and
prior to the adoption of this resolution such a provision could become
effective.
The following is the text of the proposed resolution:
"RESOLVED, that any provision of the Second Amended and Restated
Bylaws of Commercial Metals Company as of the effectiveness of this
resolution that was not included in the Bylaws of Commercial Metals Company
as publicly filed with the Securities and Exchange Commission prior to
October 18, 2011, and is inconsistent with any of the proposals approved by
stockholders at the 2012 Annual Meeting of the Stockholders of Commercial
Metals Company, be and hereby are repealed."
Although not binding on the Board, the Record Holder is bringing Proposal 1
for consideration at the Annual Meeting because the Record Holder believes that
the Corporation's stockholders should have the ability to indicate to the Board
that stockholders believe that the Poison Pill is not in their best interests.
The Record Holder is bringing Proposal 2 for consideration at the Annual Meeting
because the Record Holder believes that poison pills should not be authorized,
established, adopted, or amended without stockholder approval. The Record Holder
is bringing Proposal 3 for consideration at the Annual Meeting because the
Record Holder believes that amendments to the Bylaws that have not been
publically disclosed prior to the date of this Notice should not frustrate the
purposes of the various proposals being made by the Record Holder.
In this Notice: (i) certain information relating to the Direct Beneficial
Owners and the Beneficial Owner(s) (as defined in Annex A) is set forth in the
body of this Notice (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; and (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. The Nominees are also party to an agreement
substantially in the form attached hereto as Annex D, pursuant to which an
affiliate of the Direct Beneficial Owners has agreed to pay certain fees to Mr.
Unger and Mr. Mongillo, and to indemnify each of the Nominees with respect to
certain costs incurred by him in connection with the proxy contest relating to
the Annual Meeting (the "Nominee Agreement").
Each Direct Beneficial Owner and Beneficial Owner hereby represents that it
will deliver a proxy statement and form of proxy to holders of at least the
percentage of the Corporation's voting power of all of the shares of capital
stock required under applicable law to carry, approve or adopt (in person or by
proxy) the Proposals and to elect the Slate to the Board.
Each Nominee, Direct Beneficial Owner and Beneficial Owner has an interest
in the Proposals and the election of directors at the Annual Meeting: (i)
directly and/or indirectly through the beneficial ownership (if any) of Shares,
as described on Annex A, and any applicable attachments thereto; and (ii) with
respect to each of the Nominees pursuant to the Nominee Agreement.
With respect to each Nominee, other than as disclosed in this Notice, (i)
such Nominee is not, and, within the past year, was not a party to any contract,
arrangement or understanding with any person with respect to any securities of
the Corporation, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Nominee nor any of such Nominee's associates have any arrangement
or understanding with any person with respect to (A) any future employment by
the Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Direct Beneficial Owner and Beneficial Owner, other
than as disclosed in this Notice, (i) neither such Direct Beneficial Owner nor
such Beneficial Owner is, or was, within the past year, a party to any contract,
arrangement or understanding with any person with respect to any securities of
the Corporation, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Direct Beneficial Owner, Beneficial Owner nor any of their
respective associates have any arrangement or understanding with any person with
respect to (A) any future employment by the Corporation or its affiliates or (B)
any future transactions to which the Corporation or any of its affiliates will
or may be a party.
Mr. Hebard is employed by an entity affiliated with Carl C. Icahn. Mr.
Unger is Vice-Chairman and a director of the Board of Directors of an entity
affiliated with Carl C. Icahn.
With respect to each Nominee, such Nominee is independent under the
independence standards applicable to the Corporation under (i) paragraph (a)(1)
of Item 407 of Regulation S-K and (ii) the New York Stock Exchange listing
standards.
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 and all attachments thereto, as applicable.
Unless expressly indicated otherwise herein, information is set forth
herein as of the close of business on October 18, 2011. Neither the delivery of
this Notice nor any delivery by any Direct Beneficial Owner, Beneficial Owner,
or Nominee of additional information to the Corporation from and after the date
hereof shall be deemed to constitute an admission by any Direct Beneficial
Owner, Beneficial Owner, Nominee or any of their respective affiliates (if any)
that such delivery is required or that each and every item or any item of
information is required or as to the legality or enforceability of any notice
requirement or any other matter, or a waiver by any Direct Beneficial Owner,
Beneficial Owner, Nominee or any of their respective affiliates (if any) of
their right to contest or challenge, in any way, the validity or enforceability
of any notice requirement or any other matter (including actions taken by the
Board in anticipation of, or following receipt of, this Notice). Furthermore,
this Notice assumes that the Board will nominate a total of three director
nominees for election to the Board at the Annual Meeting and if the Board
increases the number of directors to be nominated and elected at the Annual
Meeting or a special meeting called for a similar purpose, the Record Holder
reserves the right to add additional director nominees in respect of each such
additional directorship. In the event any statement or other information in this
Notice is not correct, or to the extent any applicable information has been
omitted from this Notice, the Direct Beneficial Owners, Beneficial Owners and
Nominees reserve the right to correct and/or supplement any such statement or
other information set forth in this Notice.
[Signature page follows]
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
[Signature page to Stockholders' Notice of Nominations of Persons for Election
to the Board of Directors and the Proposal of Other Business to be Transacted by
the Stockholders at the 2012 Annual Meeting of Stockholders of Commercial
Metals Company]
ANNEX A
CERTAIN INFORMATION ABOUT BENEFICIAL OWNERSHIP
NAME: Carl C. Icahn
AGE: 75
BUSINESS 767 Fifth Avenue, 47th Floor
ADDRESS: New York, New York 10153
RESIDENCE [Address redacted]
ADDRESS:
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 and the Proposals indirectly through the beneficial ownership of
securities, as described below.
Mr. Icahn has served as chairman of the board and a director of Starfire
Holding Corporation, 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. ("IEP"), and certain related
entities, Mr. Icahn's principal occupation is managing private investment funds,
including Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III.
From November 2004 through 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 IEP. IEP is a diversified holding company engaged in a
variety of businesses, including investment management, automotive, metals, real
estate, home fashion, railcar, casino gaming and food packaging. Since March
2010, Mr. Icahn has been the chairman of the board of directors of Tropicana
Entertainment Inc., a company that is primarily engaged in the business of
owning and operating casinos and resorts. 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. 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. Since September 2011,
Mr. Icahn has been the President of XO Holdings, Inc. In October 2005, Mr. Icahn
became a director of WestPoint International, Inc., a manufacturer of bed and
bath home fashion products. Mr. Icahn was chairman of the board and president of
Icahn & Co., Inc., a registered brokerdealer and a member of the National
Association of Securities Dealers, from 1968 to 2005. 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, Nevada, which, until February 2008, was a subsidiary of IEP. 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 Entertainment
Holdings, Inc., the owner and operator of The Sands Hotel and Casino in Atlantic
City until November 2006. From September 2006 to November 2008, Mr. Icahn was a
director of ImClone Systems Incorporated, a biopharmaceutical company, and from
October 2006 to November 2008, he was the chairman of the board of ImClone. From
July 1993 to July 2010, Mr. Icahn served as a director of Cadus Corporation, a
company engaged in the ownership and licensing of yeast based drug discovery
technologies. From May 2005 to January 2010, Mr. Icahn served as a director of
Blockbuster Inc., a provider of in-home movie rental and game entertainment. Mr.
Icahn was a director of WCI Communities, Inc., a homebuilding company, from
August 2007 to September 2009 and served as chairman of the board of WCI from
September 2007 to September 2009. In December 2007, Mr. Icahn became a Director
of FederalMogul Corporation, a supplier of automotive products, and since
January 2008, has been the Chairman of the Board of FederalMogul. Mr. Icahn was
a director of Motricity, Inc., a company that provides mobile content services
and solutions, from April 2008 to January 2010. Mr. Icahn was a director of
Yahoo! Inc., a company that provides Internet services to users, advertisers,
publishers and developers worldwide, from August 2008 to October 2009. Mr. Icahn
received his B.A. from Princeton University.
SECURITY OWNERSHIP OF DIRECT BENEFICIAL OWNERS
(1) TITLE (2) NAME OF (3) AMOUNT OF (4) PERCENT
OF BENEFICIAL BENEFICIAL OF
CLASS OWNER (1) OWNERSHIP CLASS (2)
----- ---------- ---------- -------
Common Stock, par High River 2,304,999 2.00%
value $0.01 per
share ("Shares")
Shares Icahn Partners 3,531,955 3.06%
Shares Icahn Master 3,808,353 3.30%
Shares Icahn Master II 1,310,448 1.13%
Shares Icahn Master III 569,245 0.49%
_________________________
(1) Please note that each 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 and Beneficial Owners."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the 115,533,540 Shares stated to be outstanding as of
July 1, 2011 by the Corporation in the Corporation's Form 10-Q filed for
the quarterly period ended May 31, 2011.
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River. Beckton Corp., a Delaware corporation
("Beckton") is the sole stockholder of Icahn Enterprises G.P. Inc., a Delaware
corporation ("Icahn Enterprises GP"), which is the general partner of Icahn
Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Holdings").
Icahn Holdings is the sole member of IPH GP LLC, a Delaware limited liability
company ("IPH"), which is the general partner of Icahn Capital L.P., a Delaware
limited partnership ("Icahn Capital"). Icahn Capital is the general partner of
each of Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore") and
Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"). Icahn
Onshore is the general partner of Icahn Partners. Icahn Offshore is the general
partner of each of Icahn Master, Icahn Master II and Icahn Master III. Each of
Barberry and Beckton is 100 percent owned by Carl C. Icahn ("Mr. Icahn," and
collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn
Holdings, IPH, Icahn Capital, Icahn Onshore, Icahn Offshore, the "Beneficial
Owners" and each of them a "Beneficial Owner." As such, Mr. Icahn is in a
position indirectly to determine the investment and voting decisions made by
each of the Direct Beneficial Owners. In addition, Mr. Icahn is the indirect
holder of approximately 92.6% of the outstanding depositary units representing
limited partnership interests in Icahn Enterprises L.P. ("Icahn Enterprises").
Icahn Enterprises GP is the general partner of Icahn Enterprises, which is the
sole limited partner of Icahn Holdings.
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 L.P. 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 L.P., 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, casino gaming, railcar, food packaging, metals, real estate and home
fashion, and (iii) Chairman of the Board and a director of Starfire Holding
Corporation ("Starfire"), a holding company engaged in the business of investing
in and/or holding securities of various entities, and as Chairman of the Board
and a director of various of Starfire's subsidiaries.
The Direct Beneficial Owners and the Beneficial Owners may be deemed to
beneficially own, in the aggregate, 11,525,000 Shares, representing
approximately 9.98% of the Corporation's outstanding Shares (based upon the
115,533,540 Shares stated to be outstanding as of July 1, 2011 by the
Corporation in the Corporation's Form 10-Q filed for the quarterly period ended
May 31, 2011).
High River has sole voting power and sole dispositive power with regard to
2,304,999 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 3,531,955 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 3,808,353 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 1,310,448
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 569,245 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 2,304,999 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 3,531,955 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 5,688,046 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 call options, by Mr. Icahn and his affiliates within
the past two years, and the number of shares in each such purchase and sale, or
exercise of call options.
SHARES PURCHASED/
NAME DATE CALL OPTIONS EXERCISED
---- ---- ----------------------
High River 8/12/2010 1,000.00
High River 8/12/2010 8,560.00
High River 8/13/2010 180,000.00
High River 8/16/2010 35,826.00
High River 8/17/2010 80.00
High River 8/18/2010 420.00
High River 8/19/2010 2,340.00
High River 8/20/2010 15,060.00
High River 8/23/2010 40,000.00
High River 8/24/2010 68,837.00
High River 8/25/2010 50,020.00
High River 8/26/2010 90,740.00
High River 8/27/2010 55,040.00
High River 8/30/2010 28,540.00
High River 8/31/2010 37,100.00
High River 9/1/2010 640.00
High River 9/2/2010 60.00
High River 10/29/2010 2,920.00
High River 11/10/2010 30,000.00
High River 11/11/2010 8,580.00
High River 11/12/2010 117,483.00
High River 11/15/2010 60,000.00
High River 11/16/2010 60,000.00
High River 11/17/2010 30,000.00
High River 6/17/2011 47,593.00
High River 7/15/2011 7,000.00
High River 9/1/2011 1,327,160.00 (3)
Icahn Partners 8/12/2010 14,566.00
Icahn Partners 8/13/2010 274,247.00
Icahn Partners 8/16/2010 54,585.00
Icahn Partners 8/17/2010 122.00
Icahn Partners 8/18/2010 640.00
Icahn Partners 8/19/2010 3,565.00
Icahn Partners 8/20/2010 22,946.00
Icahn Partners 8/23/2010 60,944.00
Icahn Partners 8/24/2010 104,879.00
Icahn Partners 8/25/2010 76,210.00
Icahn Partners 8/26/2010 138,251.00
Icahn Partners 8/27/2010 83,859.00
Icahn Partners 8/30/2010 43,483.00
Icahn Partners 8/31/2010 56,526.00
Icahn Partners 9/1/2010 171.00
Icahn Partners 9/2/2010 98.00
Icahn Partners 10/29/2010 5,720.00
Icahn Partners 11/10/2010 47,547.00
Icahn Partners 11/11/2010 13,103.00
Icahn Partners 11/12/2010 179,417.00
Icahn Partners 11/15/2010 91,630.00
Icahn Partners 11/16/2010 91,630.00
Icahn Partners 11/17/2010 45,815.00
Icahn Partners 6/17/2011 72,902.00
Icahn Partners 7/15/2011 10,726.00
Icahn Partners 9/1/2011 2,038,373.00 (3)
Icahn Master 8/12/2010 16,522.00
Icahn Master 8/13/2010 311,077.00
Icahn Master 8/16/2010 61,916.00
Icahn Master 8/17/2010 139.00
Icahn Master 8/18/2010 725.00
Icahn Master 8/19/2010 4,043.00
Icahn Master 8/20/2010 26,029.00
Icahn Master 8/23/2010 69,127.00
Icahn Master 8/24/2010 118,964.00
Icahn Master 8/25/2010 86,445.00
Icahn Master 8/26/2010 156,817.00
Icahn Master 8/27/2010 95,121.00
Icahn Master 8/30/2010 49,324.00
Icahn Master 8/31/2010 64,116.00
Icahn Master 9/1/2010 451.00
Icahn Master 9/2/2010 110.00
Icahn Master 10/29/2010 5,324.00
Icahn Master 11/10/2010 52,607.00
Icahn Master 11/11/2010 14,834.00
Icahn Master 11/12/2010 203,106.00
Icahn Master 11/15/2010 103,729.00
Icahn Master 11/16/2010 103,729.00
Icahn Master 11/17/2010 51,862.00
Icahn Master 6/17/2011 78,734.00
Icahn Master 7/15/2011 11,567.00
Icahn Master 9/1/2011 2,121,935.00 (3)
Icahn Master II 8/12/2010 4,817.00
Icahn Master II 8/13/2010 90,691.00
Icahn Master II 8/16/2010 18,051.00
Icahn Master II 8/17/2010 38.00
Icahn Master II 8/18/2010 213.00
Icahn Master II 8/19/2010 1,180.00
Icahn Master II 8/20/2010 7,585.00
Icahn Master II 8/23/2010 20,155.00
Icahn Master II 8/24/2010 34,682.00
Icahn Master II 8/25/2010 25,202.00
Icahn Master II 8/26/2010 45,718.00
Icahn Master II 8/27/2010 27,731.00
Icahn Master II 8/30/2010 14,379.00
Icahn Master II 8/31/2010 18,693.00
Icahn Master II 9/1/2010 1,938.00
Icahn Master II 9/2/2010 32.00
Icahn Master II 11/10/2010 12,754.00
Icahn Master II 11/11/2010 4,293.00
Icahn Master II 11/12/2010 58,790.00
Icahn Master II 11/15/2010 30,025.00
Icahn Master II 11/16/2010 30,024.00
Icahn Master II 11/17/2010 15,015.00
Icahn Master II 6/17/2011 26,993.00
Icahn Master II 7/15/2011 3,979.00
Icahn Master II 9/1/2011 817,470.00 (3)
Icahn Master III 8/12/2010 2,335.00
Icahn Master III 8/13/2010 43,985.00
Icahn Master III 8/16/2010 8,754.00
Icahn Master III 8/17/2010 21.00
Icahn Master III 8/18/2010 102.00
Icahn Master III 8/19/2010 572.00
Icahn Master III 8/20/2010 3,680.00
Icahn Master III 8/23/2010 9,774.00
Icahn Master III 8/24/2010 16,821.00
Icahn Master III 8/25/2010 12,223.00
Icahn Master III 8/26/2010 22,174.00
Icahn Master III 8/27/2010 13,449.00
Icahn Master III 8/30/2010 6,974.00
Icahn Master III 8/31/2010 9,065.00
Icahn Master III 10/29/2010 636.00
Icahn Master III 11/10/2010 7,092.00
Icahn Master III 11/11/2010 2,090.00
Icahn Master III 11/12/2010 28,619.00
Icahn Master III 11/15/2010 14,616.00
Icahn Master III 11/16/2010 14,617.00
Icahn Master III 11/17/2010 7,308.00
Icahn Master III 6/17/2011 11,744.00
Icahn Master III 7/15/2011 1,728.00
Icahn Master III 9/1/2011 330,866.00 (3)
_________________________
(3) The Direct Beneficial Owner acquired these Shares upon the exercise of
call options as described on Attachment I-A to this Annex A.
Shares purchased by each of the Direct Beneficial Owners are maintained in
margin accounts that include positions in securities in addition to the Shares.
As of October 17, 2011, the indebtedness of (i) High River's margin account was
approximately $649.7 million, (ii) Icahn Partners' margin account was
approximately $984.5 million, (iii) Icahn Master's margin account was
approximately $1,147.6 million, (iv) Icahn Master II's margin account was
approximately $336.4 million, and (v) Icahn Master III's margin account was
approximately $157.6 million.
ANNEX A
ATTACHMENT 1-A
The following are American call options to purchase one Share of underlying
common stock, purchased by the Direct Beneficial Owners, which were written by
UBS AG with a $9.10 strike price and an expiration date of November 16, 2012,
and which provided for physical settlement (unless the Direct Beneficial Owner
opted for a cash settlement). These call options are further described in the
chart set forth below.
On September 1, 2011, the Direct Beneficial Owners exercised all of their
respective call options.
NAME DATE QUANTITY
---- ---- --------
High River 11/17/2010 11,240.00
High River 11/18/2010 8,260.00
High River 11/19/2010 5,784.00
High River 6/16/2011 86,289.00
High River 6/20/2011 8,537.00
High River 7/8/2011 45,044.00
High River 7/15/2011 11,000.00
High River 7/18/2011 105,062.00
High River 7/19/2011 107,394.00
High River 7/20/2011 80,000.00
High River 7/21/2011 160,000.00
High River 7/22/2011 186,003.00
High River 7/25/2011 91,962.00
High River 7/26/2011 170,335.00
High River 7/27/2011 133,288.00
High River 7/28/2011 116,962.00
Icahn Partners 11/17/2010 17,165.00
Icahn Partners 11/18/2010 12,615.00
Icahn Partners 11/19/2010 8,833.00
Icahn Partners 6/16/2011 136,543.00
Icahn Partners 6/20/2011 13,076.00
Icahn Partners 7/8/2011 69,597.00
Icahn Partners 7/15/2011 16,855.00
Icahn Partners 7/18/2011 160,988.00
Icahn Partners 7/19/2011 164,560.00
Icahn Partners 7/20/2011 122,584.00
Icahn Partners 7/21/2011 245,168.00
Icahn Partners 7/22/2011 285,013.00
Icahn Partners 7/25/2011 140,913.00
Icahn Partners 7/26/2011 261,005.00
Icahn Partners 7/27/2011 204,238.00
Icahn Partners 7/28/2011 179,220.00
Icahn Master 11/17/2010 19,432.00
Icahn Master 11/18/2010 14,280.00
Icahn Master 11/19/2010 10,000.00
Icahn Master 6/16/2011 72,083.00
Icahn Master 6/20/2011 14,123.00
Icahn Master 7/8/2011 72,134.00
Icahn Master 7/15/2011 18,174.00
Icahn Master 7/18/2011 173,586.00
Icahn Master 7/19/2011 177,437.00
Icahn Master 7/20/2011 132,179.00
Icahn Master 7/21/2011 264,354.00
Icahn Master 7/22/2011 307,317.00
Icahn Master 7/25/2011 151,941.00
Icahn Master 7/26/2011 281,430.00
Icahn Master 7/27/2011 220,219.00
Icahn Master 7/28/2011 193,246.00
Icahn Master II 11/17/2010 5,625.00
Icahn Master II 11/18/2010 4,133.00
Icahn Master II 11/19/2010 2,893.00
Icahn Master II 6/16/2011 112,238.00
Icahn Master II 6/20/2011 4,842.00
Icahn Master II 7/8/2011 27,111.00
Icahn Master II 7/15/2011 6,254.00
Icahn Master II 7/18/2011 59,730.00
Icahn Master II 7/19/2011 61,056.00
Icahn Master II 7/20/2011 45,481.00
Icahn Master II 7/21/2011 90,964.00
Icahn Master II 7/22/2011 105,748.00
Icahn Master II 7/25/2011 52,282.00
Icahn Master II 7/26/2011 96,841.00
Icahn Master II 7/27/2011 75,776.00
Icahn Master II 7/28/2011 66,496.00
Icahn Master III 11/17/2010 2,738.00
Icahn Master III 11/18/2010 2,012.00
Icahn Master III 11/19/2010 1,410.00
Icahn Master III 6/16/2011 24,293.00
Icahn Master III 6/20/2011 2,108.00
Icahn Master III 7/8/2011 11,334.00
Icahn Master III 7/15/2011 2,717.00
Icahn Master III 7/18/2011 25,946.00
Icahn Master III 7/19/2011 26,523.00
Icahn Master III 7/20/2011 19,756.00
Icahn Master III 7/21/2011 39,514.00
Icahn Master III 7/22/2011 45,935.00
Icahn Master III 7/25/2011 22,712.00
Icahn Master III 7/26/2011 42,066.00
Icahn Master III 7/27/2011 32,917.00
Icahn Master III 7/28/2011 28,885.00
ANNEX A
ATTACHMENT 1-B
The following are European put options to sell one Share of common stock,
which were written by the Direct Beneficial Owners to UBS AG and had a $9.10
strike price and an expiration date of November 16, 2012 or the date on which
the corresponding American-style call option described in Annex A, Attachment
1-A is exercised. These options provided that they settled in cash and are
further described in the chart set forth below.
On September 1, 2011, the Direct Beneficial Owners exercised all of the
call options described in Annex A, Attachment 1-A, and upon exercise of the call
options, all of the put options described below expired pursuant to their terms.
NAME DATE QUANTITY
---- ---- --------
High River 11/17/2010 11,240.00
High River 11/18/2010 8,260.00
High River 11/19/2010 5,784.00
High River 6/16/2011 86,289.00
High River 6/20/2011 8,537.00
High River 7/8/2011 45,044.00
High River 7/15/2011 11,000.00
High River 7/18/2011 105,062.00
High River 7/19/2011 107,394.00
High River 7/20/2011 80,000.00
High River 7/21/2011 160,000.00
High River 7/22/2011 186,003.00
High River 7/25/2011 91,962.00
High River 7/26/2011 170,335.00
High River 7/27/2011 133,288.00
High River 7/28/2011 116,962.00
Icahn Partners 11/17/2010 17,165.00
Icahn Partners 11/18/2010 12,615.00
Icahn Partners 11/19/2010 8,833.00
Icahn Partners 6/16/2011 136,543.00
Icahn Partners 6/20/2011 13,076.00
Icahn Partners 7/8/2011 69,597.00
Icahn Partners 7/15/2011 16,855.00
Icahn Partners 7/18/2011 160,988.00
Icahn Partners 7/19/2011 164,560.00
Icahn Partners 7/20/2011 122,584.00
Icahn Partners 7/21/2011 245,168.00
Icahn Partners 7/22/2011 285,013.00
Icahn Partners 7/25/2011 140,913.00
Icahn Partners 7/26/2011 261,005.00
Icahn Partners 7/27/2011 204,238.00
Icahn Partners 7/28/2011 179,220.00
Icahn Master 11/17/2010 19,432.00
Icahn Master 11/18/2010 14,280.00
Icahn Master 11/19/2010 10,000.00
Icahn Master 6/16/2011 72,083.00
Icahn Master 6/20/2011 14,123.00
Icahn Master 7/8/2011 72,134.00
Icahn Master 7/15/2011 18,174.00
Icahn Master 7/18/2011 173,586.00
Icahn Master 7/19/2011 177,437.00
Icahn Master 7/20/2011 132,179.00
Icahn Master 7/21/2011 264,354.00
Icahn Master 7/22/2011 307,317.00
Icahn Master 7/25/2011 151,941.00
Icahn Master 7/26/2011 281,430.00
Icahn Master 7/27/2011 220,219.00
Icahn Master 7/28/2011 193,246.00
Icahn Master II 11/17/2010 5,625.00
Icahn Master II 11/18/2010 4,133.00
Icahn Master II 11/19/2010 2,893.00
Icahn Master II 6/16/2011 112,238.00
Icahn Master II 6/20/2011 4,842.00
Icahn Master II 7/8/2011 27,111.00
Icahn Master II 7/15/2011 6,254.00
Icahn Master II 7/18/2011 59,730.00
Icahn Master II 7/19/2011 61,056.00
Icahn Master II 7/20/2011 45,481.00
Icahn Master II 7/21/2011 90,964.00
Icahn Master II 7/22/2011 105,748.00
Icahn Master II 7/25/2011 52,282.00
Icahn Master II 07/26/2011 96,841.00
Icahn Master II 07/27/2011 75,776.00
Icahn Master II 7/28/2011 66,496.00
Icahn Master III 11/17/2010 2,738.00
Icahn Master III 11/18/2010 2,012.00
Icahn Master III 11/19/2010 1,410.00
Icahn Master III 6/16/2011 24,293.00
Icahn Master III 6/20/2011 2,108.00
Icahn Master III 7/8/2011 11,334.00
Icahn Master III 7/15/2011 2,717.00
Icahn Master III 7/18/2011 25,946.00
Icahn Master III 7/19/2011 26,523.00
Icahn Master III 7/20/2011 19,756.00
Icahn Master III 7/21/2011 39,514.00
Icahn Master III 7/22/2011 45,935.00
Icahn Master III 7/25/2011 22,712.00
Icahn Master III 7/26/2011 42,066.00
Icahn Master III 7/27/2011 32,917.00
Icahn Master III 7/28/2011 28,885.00
ANNEX B
ATTACHMENT 1
INFORMATION ABOUT NOMINEES
----------------------------
NAME: James Unger
AGE: 63
BUSINESS 625 N. Main Center
ADDRESS: St. Charles, Missouri 63301
RESIDENCE {Address redacted]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Unger does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Unger has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
Mr. Unger has served as Vice Chairman of American Railcar Industries Inc.
since April 2009 and has served on the board of directors since 1995. From March
1995 to April 2009, Mr. Unger served as Chief Executive Officer and President of
American Railcar Industries Inc. Mr. Unger also served as a consultant to
American Railcar Industries Inc. from April 2009 to March 2010. Prior to joining
American Railcar Industries Inc., he served ACF Industries, Inc. as its
president from 1988 to 1995, as its senior vice president and chief financial
officer from 1984 to 1988 and on its board of directors from August 1993 to
March 2005. Since 2004, Mr. Unger has served as a director of American Railcar
Leasing LLC. Since June 2003, Mr. Unger has served as president of Ohio Castings
Company, LLC, a joint venture in which American Railcar Industries Inc. has an
interest. From July 2007 through August 2010, Mr. Unger served on the executive
committee of Axis, LLC (and its subsidiaries), an axle manufacturing joint
venture in which American Railcar Industries Inc. has an interest. From 2008
through August 2010, Mr. Unger served on the board of directors of Amtek Railcar
Industries Private Limited, an Indian joint venture in which American Railcar
Industries Inc. has an interest. Mr. Unger served on the board of directors of
Guaranty Financial Group and Guaranty Bank from August 2008 to August 2009. Mr.
Unger was on the board of directors of Aspen Resources Group, an oil and gas
exploration company from May 2002 until April 2007. Mr. Unger participates in
several industry organizations, including as an executive committee member for
the Railway Supply Institute, Inc. (RSI). He also is a board member of the
American Railway Car Institute, a member of the project review committee for the
RSI-AAR Railroad Tank Car Safety Research Test Project, a steering committee
member of RSI on tank railcars, and a member of the National Freight and
Transportation Association. Mr. Unger served as a member of the board of
directors of Ranken Technical College from 1990 to 2002. With respect to
American Railcar Industries Inc. and its various joint ventures mentioned above,
ACF Industries, Inc., American Railcar Leasing LLC, Guaranty Financial Group and
Guaranty Bank, Mr. Carl C. Icahn, directly or indirectly, either (i) controls or
at such time controlled such company, or (ii) at such time had or has an
interest in such company through the ownership of securities. Mr. Unger received
a B.S. in Accounting from the University of Missouri, Columbia and is a
Certified Public Accountant.
ANNEX B
ATTACHMENT 2
INFORMATION ABOUT NOMINEES
--------------------------
NAME: Steve Mongillo
AGE: 50
BUSINESS [Address redacted]
ADDRESS:
RESIDENCE [Address redacted]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Mongillo does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Mongillo has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
Mr. Mongillo is a private investor. From 2009 to 2011, Mr. Mongillo served
as a director of American Railcar Industries, Inc. From January 2008 to January
2011, Mr. Mongillo served as a managing director of Icahn Capital LP, the entity
through which Mr. Carl Icahn managed third party investment funds. From March
2009 to January 2011, Mr. Mongillo served as a director of WestPoint
International Inc. Prior to joining Icahn Capital, Mr. Mongillo worked at Bear
Stearns for 10 years, most recently as a senior managing director overseeing the
leveraged finance group's efforts in the healthcare, real estate, gaming,
lodging, leisure, restaurant and education sectors. With respect to each company
mentioned above, except Bear Stearns, Mr. Carl Icahn, directly or indirectly,
either (i) controls or at such time controlled such company or (ii) has or at
such time had an interest in such company through the ownership of securities.
Mr. Mongillo received a B.A. from Trinity College and an M.B.A from the Amos
Tuck School of Business Administration at Dartmouth College.
ANNEX B
ATTACHMENT 3
INFORMATION ABOUT NOMINEES
--------------------------
NAME: George Hebard
AGE: 38
BUSINESS 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
RESIDENCE [Address redacted]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Hebard does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Hebard has an
interest in the election of directors at the Annual Meeting pursuant to the
Nominee Agreement attached hereto as Annex D.
Since September 2011, George Hebard has been a Managing Director at Icahn
Capital LP, the entity through which Carl C. Icahn manages investment funds. He
provides investment management expertise on equity and debt investments across a
range of industries. Prior to joining Mr. Icahn, from 2005 to 2011, Mr. Hebard
served as a Managing Director at Blue Harbour Group, an investment firm in
Greenwich, Connecticut. Prior to Blue Harbour Group, Mr. Hebard served as
Managing Director at Ranger Partners from 2002 to 2003, and prior to Ranger
Partners, Mr. Hebard was an Associate at Icahn Associates Corp., from 1998 to
2002. Mr. Hebard has an MBA from INSEAD and an A.B. in Economics from Princeton
University.
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 Holder will provide them.
ANNEX C
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Commercial Metals Company (the "Company"), in the proxy statement
to be filed with the Securities and Exchange Commission and distributed to
Stockholders of the Company by High River Limited Partnership ("High River"),
Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn
Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and Icahn
Partners Master Fund III L.P. ("Icahn Master III", and collectively with High
River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and in
other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
Dated: October 17, 2011
/s/ James Unger
---------------
Name: James Unger
ANNEX C
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Commercial Metals Company (the "Company"), in the proxy statement
to be filed with the Securities and Exchange Commission and distributed to
Stockholders of the Company by High River Limited Partnership ("High River"),
Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn
Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and Icahn
Partners Master Fund III L.P. ("Icahn Master III", and collectively with High
River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and in
other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
Dated: October 17, 2011
/s/ Steve Mongillo
------------------
Name: Steve Mongillo
ANNEX C
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of Commercial Metals Company (the "Company"), in the proxy statement
to be filed with the Securities and Exchange Commission and distributed to
Stockholders of the Company by High River Limited Partnership ("High River"),
Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn
Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"), and Icahn
Partners Master Fund III L.P. ("Icahn Master III", and collectively with High
River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and in
other materials in connection with the solicitation of proxies by the Holders
from Stockholders of the Company to be voted at the 2012 annual meeting of
Stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if elected.
Dated: October 17, 2011
/s/ George Hebard
-----------------
Name: George Hebard
ANNEX D
Attached to this Annex D is the form of agreement to be entered into
between each of the Nominees and an affiliate of the Record Holder pursuant to
which such affiliate has agreed to pay certain fees to the Nominees (except in
the case of Mr. Hebard who is not receiving a fee) and to indemnify the Nominees
with respect to certain costs incurred by the Nominees in connection with the
proxy contest relating to the Annual Meeting.
ICAHN CAPITAL LP
October 17, 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 Commercial
Metals Company (the "Company") in connection with a proxy contest with
management of the Company in respect of the election of directors of the Company
at the 2012 Annual Meeting of Stockholders of Commercial Metals Company (the
"Annual Meeting"), expected to be held in early 2012, or a special meeting of
stockholders of the Company 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 the Company at the Annual
Meeting or a special meeting of stockholders of the Company called for a similar
purpose or in connection with a settlement of the Proxy Contest by Icahn and the
Company, 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 the Company, or (iii) the
withdrawal of the Proxy Contest by Icahn.(4)
You understand that it may be difficult, if not impossible, to replace
nominees who, such as yourself, have agreed to serve on the Slate and later
change their minds and determine not to seek election. Accordingly, the Slate is
relying upon your agreement to seek election. In that connection, you are being
supplied with a questionnaire in which you will provide Icahn with information
necessary for Icahn to make appropriate disclosure both to the Company and for
use in creating the proxy material to be sent to shareholders of the Company 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 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 the Company informing the Company
that you consent to being nominated by Icahn, or an affiliate thereof, for
election as a director of the Company and, if elected, consent to serving as a
director of the Company. Upon being notified that we have chosen you, we may
forward that instrument and your completed questionnaire (or summaries thereof)
to the Company.
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 Commercial Metals
Company 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 the Company's Board of Directors
or for any actions taken by you as a director of the Company, 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
_________________________
(4) This paragraph does not appear in the Nominee Agreement signed by Mr.
Hebard.
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 the Company 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 the Company 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 the Company.
Should the foregoing agree with your understanding, please so indicate in
the space provided below, whereupon this letter will become a binding agreement
between us.
Very truly yours,
ICAHN CAPITAL LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as of
the date first above written:
__________________________
Name:
EXHIBIT 2
The Participants
----------------
The participants in the potential solicitation of proxies (the
"Participants") from stockholders of Commercial Metals Company ("Commercial
Metals" or the "Corporation") may include the following: 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 LP, a Cayman Islands limited partnership ("Icahn Master II"), Icahn
Partners Master Fund III LP, a Cayman Islands limited partnership ("Icahn Master
III"), High River Limited Partnership, a Delaware limited partnership ("High
River"), Barberry Corp., a Delaware corporation ("Barberry"), Hopper Investments
LLC, a Delaware limited liability company ("Hopper"), 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 Holdings"), IPH GP LLC, a Delaware limited liability company
("IPH"), Icahn Capital L.P., a Delaware limited partnership ("Icahn Capital"),
Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore"), Icahn
Offshore LP, a Delaware limited partnership ("Icahn Offshore"), Mr. Carl C.
Icahn, James Unger, Steve Mongillo and George Hebard.
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) Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue, 47th Floor,
New York, NY 10153. The business address of Mr. Icahn and Mr. Hebard is c/o
Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, NY 10153. The
business address of Mr. Unger is 625 N. Main Center, St. Charles, Missouri
63301. The business address of Mr. Mongillo is 105 Grandview Avenue, Rye, New
York 10580.
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High
River (collectively, the "Icahn Parties") are entities controlled by Carl C.
Icahn. Mr. Hebard is an employee and/or officer and director of the Icahn
Parties and various other entities controlled by Mr. Icahn who may also
participate in soliciting proxies from Commercial Metal's stockholders. Mr.
Unger is a director of an entity affiliated with Mr. Icahn. Mr. Hebard does not
own beneficially any interest in securities of Commercial Metals, and will not
receive any special compensation in connection with such solicitation. Neither
Mr. Unger nor Mr. Mongillo own beneficially any interest in the securities of
Commercial Metals. Each of Mr. Unger and Mr. Mongillo have an interest in the
election of directors at the Commercial Metals 2012 Annual Meeting of
Stockholders pursuant to a Nominee Agreement between each of Mr. Unger and Mr.
Mongillo and an affiliate of the Icahn Parties, pursuant to which an affiliate
of the Icahn Parties has agreed to pay each of Mr. Unger and Mr. Mongillo a fee
of $25,000 under certain circumstances. In addition, an affiliate of the Icahn
Parties has agreed to indemnify each of Mr. Unger, Mr. Mongillo and Mr. Hebard
with respect to certain costs incurred by each of Mr. Unger, Mr. Mongillo and
Mr. Hebard in connection with the solicitation of proxies.
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 L.P. 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 L.P., 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, casino gaming, railcar, food packaging, metals, real estate and home
fashion, and (iii) Chairman of the Board and a director of Starfire Holding
Corporation ("Starfire"), a holding company engaged in the business of investing
in and/or holding securities of various entities, and as Chairman of the Board
and a director of various of Starfire's subsidiaries.
The Icahn Parties may be deemed to beneficially own, in the aggregate,
11,525,000 Shares, representing approximately 9.98% of the Corporation's
outstanding shares of common stock (the "Shares") (based upon the 115,533,540
Shares stated to be outstanding as of July 1, 2011 by the Corporation in the
Corporation's Form 10-Q filed for the quarterly period ended May 31, 2011).
High River has sole voting power and sole dispositive power with regard to
2,304,999 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 3,531,955 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 3,808,353 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 1,310,448
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 569,245 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 2,304,999 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 3,531,955 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 5,688,046 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.