SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Biogen Idec Inc.
(Name of Issuer)
Common Stock, Par Value $0.0005
(Title of Class of Securities)
09062X103
(CUSIP Number)
Marc Weitzen, Esq.
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4388
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 20, 2010
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
Item 1. Security and Issuer
The Schedule 13D, filed with the Securities and Exchange Commission on
August 11, 2008 by the Reporting Persons, as amended by Amendment No. 1, filed
on February 6, 2009 and Amendment No. 2 filed on January 28, 2010 (the "Schedule
13D") with respect to the shares of Common Stock, par value $0.0005 (the
"Shares"), issued by Biogen Idec Inc. (the "Issuer") is hereby amended to
furnish the additional information set forth herein. All capitalized terms
contained herein but not otherwise defined shall have the meanings ascribed to
such terms in the Schedule 13D.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended by the addition of the
following:
The Issuer and Reporting Persons entered into an agreement dated March 20,
2010 (the "Agreement"), a copy of which is attached hereto as Exhibit I and
incorporated herein by reference.
The Issuer announced on March 22, 2010 that it had appointed Dr. Eric K.
Rowinsky and Dr. Stephen A. Sherwin to its Board of Directors and would include
Dr. Eric K. Rowinsky and Dr. Stephen A. Sherwin on its slate of nominees for
director at the 2010 Annual Meeting. The Reporting Persons agreed, among other
things, that they would vote their Shares at that meeting for Dr. Eric K.
Rowinsky and Dr. Stephen A. Sherwin and up to two additional persons being
nominated by the Issuer, and would not otherwise solicit proxies in connection
with the 2010 Annual Meeting.
The Reporting Persons agreed to withdraw its letter, dated January 27,
2010, that provided notice to the Company of the nomination of certain
individuals and certain proposed business in connection with the 2010 Annual
Meeting.
In connection with the agreement, Mr. Icahn stated that "I am pleased we
were able to reach an agreement that is in stockholders' best interests. The
nominees who will replace Messrs. Mullen and Ross are extremely qualified and I
believe will add great value to Biogen. We look forward to continuing to work
together constructively to drive performance and increase shareholder value."
Item 7. Materials to Be Filed as Exhibits.
Item 7 is hereby amended by the addition of the following:
Exhibit 1. Settlement Agreement, dated March 20, 2010, among the Issuer
and the Reporting Persons.
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: March 22, 2010
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward E. Mattner
--------------------
Name: Edward Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/ Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/ Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
By: /s/ Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
ICAHN ENTERPRISES G.P. INC.
By: /s/ Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
/s/ Carl C. Icahn
--------------------
CARL C. ICAHN
[Signature Page of Schedule 13D, Amendment No. 3 - Biogen Idec Inc.]
EXHIBIT I
EXECUTION COPY
AGREEMENT
---------
This Agreement dated March 20, 2010 (this "Agreement"), is by and among the
persons and entities listed on Schedule A (collectively, the "Icahn Group", and
individually a "member" of the Icahn Group) and Biogen Idec Inc. (on behalf of
itself and its Board of Directors, as defined herein) (the "Company"). In
consideration of and reliance upon the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Board Appointment and Nomination.
(a) The Company agrees:
(i) to appoint Eric Rowinsky and Stephen A. Sherwin (the "New
Class 1 Directors") as Class 1 directors of Board of Directors of the
Company (the "Board of Directors"), in each case as soon as reasonably
practicable but in any event no later than March 31, 2010;
(ii) to include the New Class 1 Directors in its slate of
nominees for election as Class 1 directors of the Board of Directors
at the Company's 2010 annual meeting of stockholders (the "2010 Annual
Meeting"); and
(iii) to use commercially reasonable efforts to cause the
election of the New Class 1 Directors at the 2010 Annual Meeting
(including recommending that the Company's stockholders vote in favor
of the election of the New Class 1 Directors and otherwise supporting
them for election in a manner no less rigorous and favorable than the
manner in which the Company supports its other nominees in the
aggregate).
(b) Effective upon the public announcement of the appointment, no
later than March 31, 2010, of the New Class I Directors to the Board of
Directors as provided in Section 1(a)(i) of this agreement together with
the public announcement of the matters in Section 1(a)(ii) of this
Agreement, the Icahn Group's letter dated January 27, 2010 providing notice
to the Company of the nomination of certain individuals and certain
proposed business in connection with the 2010 Annual Meeting shall, without
further action on the part of the Icahn Group, be withdrawn and of no
further force and effect.
2. Proxy Contest and Other Matters; Press Release.
(a) From and after the date hereof and provided that the Company has
complied and is complying with its obligations set forth in Section 1 of
this Agreement, no member of the Icahn Group shall, directly or indirectly,
and each member of the Icahn Group shall cause each Affiliate or Associate
(as such terms are hereinafter defined) of any such members (such
Affiliates and Associates, collectively and individually, the "Icahn
Affiliates") not to, directly or indirectly, (i) become a "participant" (as
such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated
under the Exchange Act) in or actively assist any third party in any
"solicitation" of any proxy, consent or other authority to vote any shares
of Common Stock (as such terms are defined under the Exchange Act) for use
at any time prior to or at the 2010 Annual Meeting, (ii) encourage, advise
or influence any other person or assist any third party in so encouraging,
assisting or influencing any person with respect to the giving or
withholding of any proxy, consent or other authority to vote at any time
prior to or at the 2010 Annual Meeting, (iii) present any proposal for
consideration for action by stockholders at any time prior to or at the
2010 Annual Meeting, (iv) grant any proxy, consent or other authority to
vote with respect to any matters at any time prior to or at the 2010 Annual
Meeting (other than to the named proxies included in the Company's proxy
card for the 2010 Annual Meeting, which shall include the New Class 1
Directors and no more than two other nominees) or deposit any of the Common
Stock held by the Icahn Group or the Icahn Affiliates in a voting trust or
subject them to a voting agreement or other arrangement of similar effect
with respect to the 2010 Annual Meeting or (v) make any request under
Section 220 of the Delaware General Corporation Law at any time prior to
the 2010 Annual Meeting. For purposes of this Agreement: the terms
"Affiliate" and "Associate" shall have the respective meanings set forth in
Rule 12b-2 promulgated by the SEC under the Exchange Act, provided that
neither the term Affiliate nor the term Associate shall include (i) any
person that is a publicly held company and is otherwise an Affiliate or
Associate by reason of the fact that a principal of any member of the Icahn
Group serves as a member of the board of directors or similar governing
body of such company or (ii) such member of the board of directors or
similar governing body of such publicly held company, to the extent acting
solely in his or her capacity as such or (iii) any entity which is an
Associate solely by reason of clause (1) of the definition of Associate in
such Rule 12b-2. As used in this Agreement, the terms "person" or "persons"
shall mean any individual, corporation (including not-for-profit), general
or limited partnership, limited liability or unlimited liability company,
joint venture, estate, trust, association, organization or other entity of
any kind or nature.
(b) So long as the Company has complied and is complying with its
obligations set forth in Section 1 of this Agreement, each member of the
Icahn Group shall cause all shares of Common Stock owned of record and
shall instruct the record owner, in case of all shares of Common Stock
beneficially owned (as defined in Rule 13d-3 promulgated by the SEC under
the Exchange Act) but not owned of record, directly or indirectly, by it,
or by any Icahn Affiliate, as of the record date for the 2010 Annual
Meeting, to be present for quorum purposes and to be voted, at the 2010
Annual Meeting or at any adjournments or postponements thereof, in favor of
the directors nominated by the Board for election at the 2010 Annual
Meeting which shall include the New Class 1 Directors and no more than two
other nominees.
(c) The Company and the Icahn Group shall announce this Agreement and
the material terms hereof by means of a press release in the form attached
hereto as Exhibit B (the "Press Release") as soon as practicable on or
after the date hereof.
3. Representations and Warranties. Each of the parties hereto
represents and warrants to the other party that:
(a) such party has all requisite company authority and power to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby;
(b) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all required company or other action on the part of such
party and no other proceedings on the part of such party are necessary to
authorize the execution and delivery of this Agreement or to consummate the
transactions contemplated hereby;
(c) this Agreement has been duly and validly executed and delivered by
such party and constitutes the valid and binding obligation of such party
enforceable against such party in accordance with its terms; and
(d) this Agreement will not result in a violation of any terms or
provisions of any agreements to which such person is a party or by which
such party may otherwise be bound or of any law, rule, license, regulation,
judgment, order or decree governing or affecting such party.
4. Miscellaneous. The parties hereto shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement exclusively
in the Court of Chancery or other federal or state courts of the State of
Delaware, in addition to any other remedy to which they are entitled at law
or in equity. Furthermore, each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of the Court of Chancery or
other federal or state courts of the State of Delaware in the event any
dispute arises out of this Agreement or the transactions contemplated by
this Agreement, (b) agrees that it shall not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such
court, (c) agrees that it shall not bring any action relating to this
Agreement or the transactions contemplated by this Agreement in any court
other than the Court of Chancery or other federal or state courts of the
State of Delaware, and each of the parties irrevocably waives the right to
trial by jury, (d) agrees to waive any bonding requirement under any
applicable law, in the case any other party seeks to enforce the terms by
way of equitable relief and (e) each of the parties irrevocably consents to
service of process by a reputable overnight mail delivery service,
signature requested, to the address of such parties' principal place of
business or as otherwise provided by applicable law. THIS AGREEMENT SHALL
BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION VALIDITY,
INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE THAT WOULD
COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
5. Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and may be amended
only by an agreement in writing executed by the parties hereto.
6. Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal process in
regard hereto shall be in writing and shall be deemed validly given, made
or served, if (a) given by telecopy, when such telecopy is transmitted to
the telecopy number set forth below and the appropriate confirmation is
received or (b) if given by any other means, when actually received during
normal business hours at the address specified in this subsection:
if to the Company: Biogen Idec Inc.
14 Cambridge Center
Cambridge, MA 02142
Attention: General Counsel
Facsimile: (617) 679-2617
with a copy to: Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Patricia A. Vlahakis
Facsimile: (212) 403-2000
if to the Icahn Group: Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, NY 10153
Attention: Marc Weitzen
Facsimile: (212) 688-1158
7. Severability. If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be
of no force and effect, but the illegality or unenforceability of such
provision shall have no effect upon the legality or enforceability of any
other provision of this Agreement.
8. Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile or PDF) which together shall
constitute a single agreement.
9. Successors and Assigns. This Agreement shall not be assignable by
any of the parties to this Agreement but shall be binding on successors of
the parties hereto.
10. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and is not enforceable by any other persons.
11. Fees and Expenses. Neither the Company, on the one hand, nor the
Icahn Group, on the other hand, will be responsible for any fees or
expenses of the other in connection with this Agreement.
12. Interpretation and Construction. Each of the parties hereto
acknowledges that it has been represented by counsel of its choice
throughout all negotiations that have preceded the execution of this
Agreement, and that it has executed the same with the advice of said
independent counsel. Each party and its counsel cooperated and participated
in the drafting and preparation of this Agreement and the documents
referred to herein, and any and all drafts relating thereto exchanged among
the parties shall be deemed the work product of all of the parties and may
not be construed against any party by reason of its drafting or
preparation. Accordingly, any rule of law or any legal decision that would
require interpretation of any ambiguities in this Agreement against any
party that drafted or prepared it is of no application and is hereby
expressly waived by each of the parties hereto, and any controversy over
interpretations of this Agreement shall be decided without regards to
events of drafting or preparation.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused the same to be executed by its duly authorized representative as of
the date first above written.
BIOGEN IDEC INC.
By: ________________________________________
Name:
Title:
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
ICAHN CAPITAL LP
IPH GP LLC
ICAHN ENTERPRISES G.P. INC.
ICAHN ENTERPRISES HOLDINGS L.P.
BECKTON CORP.
HOPPER INVESTMENTS LLC
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES G.P. INC.
By: /s/ Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer
CARL C. ICAHN
/s/ Carl C. Icahn
-----------------
SCHEDULE A
----------
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
Icahn Offshore LP
Icahn Partners LP
Ichan Onshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
EXHIBIT B
---------
[BIOGEN LETTERHEAD]
BIOGEN IDEC APPOINTS ERIC ROWINSKY AND STEPHEN SHERWIN TO
BOARD OF DIRECTORS PURSUANT TO AGREEMENT WITH ICAHN PARTNERS
ICAHN AGREES TO SUPPORT COMPANY NOMINEES
AT 2010 ANNUAL MEETING
CAMBRIDGE, MASS., MARCH [], 2010 -- Biogen Idec (NASDAQ: BIIB) today announced
that Dr. Eric K. Rowinsky and Dr. Stephen A. Sherwin have been appointed to its
Board of Directors pursuant to an agreement with Icahn Partners. Dr. Rowinsky
was proposed as a nominee to the Board by Icahn Partners and Dr. Sherwin was
selected by the Company as part of its process to identify new directors.
Under the terms of the agreement, Icahn Partners has agreed to vote its shares
at the 2010 Annual Meeting for Biogen Idec's nominees, who will include current
directors Nancy L. Leaming and Brian S. Posner as well as Drs. Rowinsky and
Sherwin. In addition, under the terms of the agreement, Icahn Partners will
withdraw its notice of nomination of persons for election as directors and its
proposal to amend Biogen Idec's Bylaws to limit the size of the Board. Biogen
Idec has temporarily increased the number of seats on the Board from 12 to 13.
James C. Mullen and Bruce R. Ross will complete their current terms and, as
previously announced, will not stand for reelection at the 2010 Annual Meeting.
Following the 2010 Annual Meeting, there will be 12 seats on the Board.
William D. Young, Chairman of the Board of Directors, said, "We believe that
adding Drs. Sherwin and Rowinsky, both of whom bring relevant skills and
significant industry experience to the Board, is a positive outcome for Biogen
Idec and its stockholders and we look forward to working with them."
Carl Icahn, founder and CEO of Icahn Partners, said, "I am pleased we were able
to reach an agreement that is in stockholders' best interests. The nominees who
will replace Messrs. Mullen and Ross are extremely qualified and I believe will
add great value to Biogen. We look forward to continuing to work together
constructively to drive performance and increase shareholder value."
The agreement between Biogen Idec and Icahn Partners LP will be filed in a Form
8-K with the Securities and Exchange Commission. The Company expects to file its
proxy materials for the 2010 Annual Meeting in the near future.
BIOGRAPHY OF DR. ERIC K. ROWINSKY
Dr. Rowinsky, 53, has served as a director at Adventrx Pharmaceuticals (AMEX:
ANX) since February 2008. Dr. Rowinsky recently served as Executive Vice
President Clinical Development and Regulatory at ImClone Systems Incorporated, a
wholly-owned subsidiary of Eli Lilly and Company. Prior to joining ImClone
Systems in 2005, Dr. Rowinsky focused his academic efforts in cancer drug
development as the Director of Clinical Research and later Director of the
Institute for Drug Development of the Cancer Therapy and Research Center in San
Antonio and the SBC Endowed Chair for Early Drug Development from 1996 to 2005.
He was also Clinical Professor of Medicine in the Division of Medical Oncology
at the University of Texas Health Science Center at San Antonio from 1996 to
2006. From 1987 to 1996, Dr. Rowinsky served as an Associate Professor of
Oncology at the Johns Hopkins University School of Medicine. He was a
longstanding NCI principal investigator on U01 anticancer drug development
grants and integrally involved in pivotal clinical and preclinical
investigations which led to the development of paclitaxel, docetaxel, topotecan,
irinotecan, erlotinib and gefitinib, among others. Dr. Rowinsky's honors include
receipt of the career development award of the American Cancer Society and the
6th Annual Emil J. Freireich Award for outstanding achievement of a young
researcher in clinical cancer therapeutics.
Dr. Rowinsky received his B.A. degree from New York University and his M.D. from
the Vanderbilt University School of Medicine. Following his residency in
internal medicine at the University of California, he completed fellowship
training in medical oncology at the Johns Hopkins University School of Medicine.
BIOGRAPHY OF DR. STEPHEN A. SHERWIN
Dr. Sherwin, 61, has more than 30 years of experience in senior leadership
positions at large and small publicly traded biotechnology companies. He
co-founded and is Chairman of Ceregene, Inc., a biotechnology company focused on
the treatment of major neurodegenerative disorders, and Abgenix, Inc., which
specialized in the discovery, development and manufacture of human therapeutic
antibodies (Abgenix was acquired by Amgen in 2006). He also served as Chairman
and CEO of Cell Genesys until its acquisition by BioSante Pharmaceuticals, Inc.
(NASDAQ: BPAX) in July 2009, and he worked at Genentech for seven years
including as Vice President of Clinical Research. Dr. Sherwin is currently
Chairman of the Biotechnology Industry Organization and is a director of
BioSante, Neurocrine BioSciences (NASDAQ: NBIX) and Rigel Pharmaceuticals
(NASDAQ: RIGL).
Dr. Sherwin received his B.A. in biology from Yale University and his M.D. from
Harvard Medical School. He is board certified in internal medicine and medical
oncology.
ABOUT BIOGEN IDEC
Biogen Idec creates new standards of care in therapeutic areas with high unmet
medical needs. Founded in 1978, Biogen Idec is a global leader in the discovery,
development, manufacturing and commercialization of innovative therapies.
Patients worldwide benefit from Biogen Idec's significant products that address
diseases such as lymphoma, multiple sclerosis and rheumatoid arthritis. For
product labeling, press releases and additional information about the company,
please visit www.biogenidec.com.
BIOGEN IDEC MEDIA CONTACT:
Amy Reilly, 617-914-6524
Associate Director, Public Affairs
or
BIOGEN IDEC INVESTOR RELATIONS CONTACT:
Eric Hoffman, 617-679-2812
Director, Investor Relations
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