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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Enzon Pharmaceuticals, Inc.
(Name of Issuer)
Common Stock, Par Value $0.01
(Title of Class of Securities)
293904108
(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 28, 2009
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
High River Limited Partnership
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
704,214
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
704,214
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
704,214
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.57%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Hopper Investments LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
704,214
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
704,214
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
704,214
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.57%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Barberry Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
704,214
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
704,214
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
704,214
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.57%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
1,300,547
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,300,547
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,300,547
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.89%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund II LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
421,337
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
421,337
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
421,337
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.94%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Partners Master Fund III LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
160,828
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
160,828
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
160,828
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.36%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Offshore LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,882,712
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,882,712
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,882,712
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.19%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Partners LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
934,149
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
934,149
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
934,149
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.08%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Onshore LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
934,149
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
934,149
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
934,149
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.08%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Capital LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,816,861
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,816,861
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,861
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.27%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
IPH GP LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,816,861
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,816,861
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,861
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.27%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Enterprises Holdings L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,816,861
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,816,861
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,861
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.27%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Icahn Enterprises G.P. Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,816,861
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,816,861
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,861
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.27%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Beckton Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,816,861
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,816,861
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,816,861
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.27%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 293904108
1 NAME OF REPORTING PERSON
Carl C. Icahn
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
3,521,075
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
3,521,075
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,521,075
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.83%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
Item 1. Security and Issuer
This statement constitutes Amendment No. 1 to the Schedule 13D relating to
the shares of Common Stock, par value $0.01 per share (the "Shares"), issued by
Enzon Pharmaceuticals, Inc., a Delaware corporation (the "Issuer"), and amends
the Schedule 13D relating to the Shares filed on March 14, 2008 (the "Original
13D"), on behalf of the Reporting Persons (as defined in the Original 13D).
Capitalized terms used herein and not otherwise defined have the respective
meanings ascribed thereto in the Original 13D.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of the 3,521,075 Shares purchased by the
Reporting Persons collectively was $28,739,971 (including commissions). The
source of funding for the purchase of these Shares was the general working
capital of the respective purchasers. The Shares are held by the Reporting
Persons in margin accounts together with other securities. Such margin accounts
may from time to time have debit balances. Part of the purchase price of Shares
purchased by the Reporting Persons was obtained through margin borrowing. Shares
purchased by the Reporting Persons are maintained in a margin account that
includes positions in securities in addition to Shares. As of January 27, 2009,
the indebtedness of the margin account of each of High River, Icahn Partners,
Icahn Master, Icahn Master II and Icahn Master III was approximately
$289,051,918, $94,110,074, $190,262,973, $57,816,679 and $17,009,458,
respectively.
Item 4. Purpose of Transaction
On January 28, 2009, the Issuer informed the Reporting Persons that the
Issuer's Board of Directors (the "Board") had resolved to nominate Dr. Alexander
J. Denner and Professor Richard C. Mulligan for election as the two Class I
directors of the Board at the Issuer's 2009 annual meeting of stockholders (the
"2009 Annual Meeting") and that no other persons would be nominated by the
Issuer for election to the Board at the 2009 Annual Meeting. In addition, the
Issuer informed the Reporting Persons that if, for any reason, the Board
determines not to nominate both Dr. Denner and Professor Mulligan, or to
nominate any persons in addition to Dr. Denner and Professor Mulligan, for
election as Class I directors of the Board at the 2009 Annual Meeting, the
Issuer would give the Reporting Persons prompt written notice therof and the
Issuer would take all necessary action to permit the Reporting Persons to
nominate persons named in a notice of nomination for election to the Board which
the Reporting Persons deliver to the Issuer on or before the close of business
on the tenth (10th) day following the date on which the Reporting Persons
receive such written notice from the Issuer. Dr. Denner serves as Managing
Director of entities affiliated with Carl Icahn, including the Reporting
Persons.
Item 5. Interest in Securities of the Issuer
(a) The Reporting Persons may be deemed to beneficially own, in the
aggregate, 3,521,075 Shares, representing approximately 7.83% of the Issuer's
outstanding Shares (based upon the 44,953,665 Shares stated to be outstanding as
of November 3, 2008 by the Issuer in the Issuer's Form 10-Q filed with the
Securities and Exchange Commission on November 6, 2008 for the quarterly period
ended September 30, 2008).
(b) High River has sole voting power and sole dispositive power with regard
to 704,214 Shares. Each of Hopper, Barberry and Carl C. 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 1,300,547 Shares.
Each of Icahn Offshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and shared
dispositive power with regard to such Shares. Icahn Master II has sole voting
power and sole dispositive power with regard to 421,337 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn Enterprises GP,
Beckton and Mr. Icahn has shared voting power and shared dispositive power with
regard to such Shares. Icahn Master III has sole voting power and sole
dispositive power with regard to 160,828 Shares. Each of Icahn Offshore, Icahn
Capital, IPH, Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr.
Icahn has shared voting power and shared dispositive power with regard to such
Shares. Icahn Partners has sole voting power and sole dispositive power with
regard to 934,149 Shares. Each of Icahn Onshore, Icahn Capital, IPH, Icahn
Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared
voting power and shared dispositive power with regard to such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River (as disclosed in Item 2), may be deemed to indirectly beneficially
own (as that term is defined in Rule 13d-3 under the Act) the Shares which High
River directly beneficially owns. Each of Hopper, Barberry and Mr. Icahn
disclaims beneficial ownership of such Shares for all other purposes. Each of
Icahn Offshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to each
of Icahn Master, Icahn Master II and Icahn Master III (as disclosed in Item 2),
may be deemed to indirectly beneficially own (as that term is defined in Rule
13d-3 under the Act) the Shares which each of Icahn Master, Icahn Master II and
Icahn Master III directly beneficially owns. Each of Icahn Offshore, Icahn
Capital, IPH, Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr.
Icahn disclaims beneficial ownership of such Shares for all other purposes. Each
of Icahn Onshore, Icahn Capital, IPH, Icahn Enterprises Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Partners (as disclosed in Item 2), may be deemed to indirectly beneficially own
(as that term is defined in Rule 13d-3 under the Act) the Shares which Icahn
Partners directly beneficially owns. Each of Icahn Onshore, Icahn Capital, IPH,
Icahn Enterprises Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn
disclaims beneficial ownership of such Shares for all other purposes.
(c) The following table sets forth all transactions with respect to Shares
effected during the past sixty (60) days by any of the Reporting Persons. All
such transactions were purchases of Shares effected in the open market, and the
table includes commissions paid in per share prices.
Name of Date of No. of Shares Purchase Price
Reporting Transaction Purchased Per Share (U.S.$)
Person
- ------------------ ------------------ ----------------------- ------------------
High River 1/12/2009 15,000 5.8299
- ------------------ ------------------ ----------------------- ------------------
High River 1/13/2009 25,000 5.8600
- ------------------ ------------------ ----------------------- ------------------
High River 1/14/2009 25,000 6.0258
- ------------------ ------------------ ----------------------- ------------------
High River 1/15/2009 20,000 6.0725
- ------------------ ------------------ ----------------------- ------------------
High River 1/21/2009 4,794 6.0967
- ------------------ ------------------ ----------------------- ------------------
Icahn Master 1/12/2009 60,000 5.8299
- ------------------ ------------------ ----------------------- ------------------
Icahn Master 1/13/2009 81,274 5.8600
- ------------------ ------------------ ----------------------- ------------------
Icahn Master 1/14/2009 43,127 6.0258
- ------------------ ------------------ ----------------------- ------------------
Icahn Master 1/15/2009 34,502 6.0725
- ------------------ ------------------ ----------------------- ------------------
Icahn Master 1/21/2009 8,271 6.0967
- ------------------ ------------------ ----------------------- ------------------
Icahn Master II 1/13/2009 9,525 5.8600
- ------------------ ------------------ ----------------------- ------------------
Icahn Master II 1/14/2009 15,952 6.0258
- ------------------ ------------------ ----------------------- ------------------
Icahn Master II 1/15/2009 12,761 6.0725
- ------------------ ------------------ ------------------- ----------------------
Icahn Master II 1/21/2009 3,059 6.0967
- ------------------ ------------------ ----------------------- ------------------
Icahn Master III 1/13/2009 3,039 5.8600
- ------------------ ------------------ ----------------------- ------------------
Icahn Master III 1/14/2009 6,093 6.0258
- ------------------ ------------------ ----------------------- ------------------
Icahn Master III 1/15/2009 4,874 6.0725
- ------------------ ------------------ ----------------------- ------------------
Icahn Master III 1/21/2009 1,169 6.0967
- ------------------ ------------------ ----------------------- ------------------
Icahn Partners 1/13/2009 6,162 5.8600
- ------------------ ------------------ ----------------------- ------------------
Icahn Partners 1/14/2009 34,828 6.0258
- ------------------ ------------------ ----------------------- ------------------
Icahn Partners 1/15/2009 27,863 6.0725
- ------------------ ------------------ ----------------------- ------------------
Icahn Partners 1/21/2009 6,679 6.0967
- ------------------ ------------------ ----------------------- ------------------
Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to
Securities of the Issuer
The Reporting Persons have entered into a number of derivative agreements,
commonly known as Total Return Swaps, with counterparties, in which the Shares
are the reference securities. These agreements provide that the profit or loss,
as applicable, to the Reporting Persons shall be based upon the difference
between the initial price set forth in such agreements and the final price of
the reference securities determined in accordance with the terms of such
agreements. The agreements provide that they settle in cash. In addition to the
Shares which they beneficially own as shown in Item 5 above, the Reporting
Persons currently have long economic exposure to an aggregate of 3,093,032
Shares through such agreements. These agreements do not give the Reporting
Persons direct or indirect voting, investment or dispositive control over the
Shares to which these agreements relate and, accordingly, the Reporting Persons
disclaim any beneficial ownership in the Shares to which these agreements
relate.
Except as otherwise described herein, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named in
Item 2 and between such persons and any person with respect to any securities of
the Issuer, including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
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 29, 2009
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward Mattner
------------------
Name: Edward Mattner
Title: Authorized Signatory
HOPPER INVESTMENTS LLC
By: /s/ Edward Mattner
------------------
Name: Edward Mattner
Title: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward Mattner
------------------
Name: Edward Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN OFFSHORE LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN ONSHORE LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
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
BECKTON CORP.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
/s/ Carl C. Icahn
- -----------------
CARL C. ICAHN