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
[X] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss. 240.14a-12
Biogen Idec Inc.
(Name of Registrant as Specified In Its Charter)
Carl C. Icahn
Dr. Alexander J. Denner
Dr. Anne B. Young
Professor Richard C.
Mulligan
Vincent J. Intrieri
Keith A. Meister
David Schechter
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
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.
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
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pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
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On June 4, 2008, Carl C. Icahn distributed a memorandum concerning Biogen
Idec Inc. to a number of shareholders of Biogen Idec Inc. and other interested
parties. The memorandum is attached hereto as Exhibit I and is incorporated
herein by reference.
EXHIBIT I
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BIOGEN'S SALES PROCESS: WHEN WILL WE KNOW THE TRUTH?
BIOGEN'S OWN DOCUMENTS SHOW A NUMBER OF STATEMENTS THEY MADE IN
CONNECTION WITH THIS PROXY STATEMENT ARE UNTRUE.
In connection with our lawsuit against Biogen Idec Inc. to compel the
Company to provide us with certain books and records relating to the Company's
efforts to sell itself in the fall 2007, on May 29, 2008, in compliance with an
order of the Delaware Court of Chancery, the Company provided us with
approximately 215 pages of documents concerning the failed sales process.
On May 30, 2008, Biogen made all of those documents available to the public
through an SEC filing. In that filing, the Company asserted (among other things)
that: "[t]hese documents are consistent with Biogen Idec's prior public
statements about the [sale] Process and demonstrate that the [sale] Process was
comprehensive and fair." We disagree. The documents are not consistent with
their public statements.
The Company did not inform its stockholders that it had been compelled to
produce the documents by the Delaware Court of Chancery as a result of our
lawsuit.
Importantly, it is clear from the documents they produced that at least one
bidder asked to talk to Elan before they submitted a "firm and binding" offer.
The documents do not indicate whether the bidder was permitted to speak with
Elan, but do indicate that the bidder walked away from the process.
As we indicate below, these documents show that a number of the statements
made by Biogen during this proxy contest are untrue.
The following memorandum briefly sets forth our initial findings of the
many inconsistencies between the Company's public statements and the 215 pages
of documents recently provided to us.
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o POINT ONE: During Biogen's February 6, 2008 fourth-quarter 2007 earnings
call, Mullen stated:
"Our board, in consultation with management and advisors, developed
and executed a sale process that was professional, objective and
thorough and was designed to elicit the highest possible value for the
Company's shareholders."
In addition, in responding to the Icahn entities' books and records demand,
the Company stated:
"[T]he Board authorized, supervised and was fully informed of the
design and conduct of the Strategic Process."
o The documents that the Icahn parties compelled the Company to produce
through an action in the Delaware Court of Chancery (the "Compelled
Production") raise serious questions about the veracity of the Company's
above representations. For example:
o The minutes of the October 12, 2007 meeting of the Biogen Board of
Directors (the "Board") produced by the Company contain no mention of
the Board being advised of the design of the sale process and no
mention of the Board approving any specific sale-process procedures.
o The Compelled Production does not contain a single document pre-dating
October 12, 2007.(1) This strongly suggests that the Board had no
involvement in developing or designing the sale process.
o The first reference in any Board minutes to potential bidders being
precluded from talking to Elan appears in the December 9, 2007
minutes. At that meeting (which was held two days after binding offers
were due from bidders), Jim Mullen, chief executive officer of the
Company, informed the Board that a bidder (whose identity has been
redacted by the Company) "had been advised that they would be invited
to speak with Elan after the submission of their proposal and that
they could revise their proposal after speaking with Elan."(2)
_________________________
(1) The Order of Delaware Court of Chancery required the Company to produce
"all presentations, memoranda, reports or other such material that address
how [the sale process] was to be designed or conducted, or how the process
was in fact designed," which documents were provided to the Board or passed
between any corporate officer, senior manager or advisor of the Company.
(2) Mullen's statement to the Board here appears to conflict with a November
20, 2007 bid process letter sent by Merrill Lynch and Goldman Sachs, on the
Company's behalf, to a potential bidder (whose identity was also redacted
by the Company) explaining how "discussions" with Elan would take place.
See Point Two.
o After an inquiry by the Icahn entities about the propriety of certain
redactions in the Compelled Production, the Company removed some of
the redactions from the December 9, 2007 minutes. These unredacted
minutes reveal that, at the December 9, 2007 Board meeting, the Board
requested that "during such meeting, the Company's management and
advisors review with the Board the entire sale process in thorough
detail." It appears that the "such meeting" at which the Board
requested the review to take place was the December 12, 2007 Board
meeting (which is when the review did in fact take place).
o In addition, the unredacted December 9, 2007 Board minutes identify
"Neptune" as the previously unidentified bidder who had not submitted
a final bid.
o It appears that the Board received its first (and only) detailed
explanation of the "design" of the sale process at the December 12,
2007 board meeting. Thus, the Compelled Documents strongly suggest
that the Board was not made aware of the design and conduct of the
sale process until it had concluded on December 12, 2007.
o POINT TWO: At the January 7, 2008 break-out session of the JPMorgan
Healthcare Conference, Mullen stated:
"And at the end we asked parties to submit a binding offer and a
marked up contract contingent only on the resolution of change and
[sic] control agreements. And then the acquirer or if there were
several very close companies would have had direct negotiations with
Genentech and Elan before executing a definitive agreement. So this
last part I think sounds a lot different from what I've heard and have
seen written out there."
o Among the Compelled Production is a redacted November 20, 2007 letter
that invited an unidentified bidder "to submit a firm and binding
proposal . . . for the acquisition of Biogen Idec . . . in conformity
with the guidelines set forth below" by "Friday, December 7, 2007 (the
`Submission Time')."
o The guidelines in the letter require the proposal to (i) "include
the specific price per share (in U.S. Dollars) that you are
prepared to pay for all of the outstanding shares of common
stock" and "all outstanding options or rights to acquire common
stock", (ii) "indicate the best and final financial terms under
which you are willing to enter into the Agreement," (iii) "state
that you will execute the Agreement in the form attached hereto"
or include a mark-up of the Agreement that you would sign, (iv)
include "details of any required sources of financing" and "firm
commitment letters from your financing sources, if any," and (v)
not be subject to "the completion of additional business, legal
or other due diligence" or "financing contingencies."
o The letter goes on to state:
"After the Submission Time, Biogen Idec will select a prevailing
prospective purchaser. The selected prevailing prospective purchaser
will be given the exclusive opportunity to engage in discussions with
representatives of Elan Pharma International Limited regarding the
Tysabri collaboration. Any such discussions would take place prior to
entering into the Agreement and would be limited to a defined time
period" (emphasis added). In fact, the way that letter is written a
bidder could conclude that no matter what they discussed with Elan,
the bidder would have to thereafter execute the merger agreement.
o Comparing Mullen's above comments to the November 20, 2007 bid
process letter reveals the following inconsistencies:
o The November 20, 2007 letter calls into question the
accuracy of Mr. Mullen's representation that "the acquirer
or if there were several very close companies would have had
direct negotiations with Elan and Genentech before executing
a definitive agreement." The November 20, 2007 bid process
letter gave the prevailing bidder the right to "engage in
discussions" with Elan about the "Tysabri collaborations,"
but the letter says nothing about bidders being able to
further negotiate price or other terms with Biogen following
those discussions.
o The bid process letter clearly states that "Biogen Idec will
select a prevailing prospective purchaser" who would then
have the opportunity to engage in "exclusive" discussions
with Elan. Thus, it appears that only one bidder would be
permitted to have exclusive discussions with Elan, not
"several very close companies" as Mullen asserted.
o The November 20, 2007 letter also says nothing about bidders
being permitted to talk to Genentech.
o POINT THREE: At the January 7, 2008 break-out session of the JPMorgan
Healthcare Conference, Mullen stated:
"And from our perspective we don't believe that that CDA created any
impediments to the sale process, and that is something we specifically
reviewed with the Board of Directors to ensure that we were satisfied
with that."
At the same session, Mullen further stated:
"I don't believe the CDA in any way gotten [sic] in the way of people
entering the process or continuing the process."
Also, in the Company's response to the Icahn entities' books and records
demand, the Company asserted that:
"[The CDAs] requirements did not dissuade potential bidders from fully
participating in the Strategic Process at any stage . . ."
o The following documents in the Compelled Production suggest that
managements' above statements are not accurate:
o The December 12, 2007 Board minutes also reflect that at least
one potential bidder "had requested a meeting with
representatives of Elan Corporation prior to submitting a
proposal." A reader could conclude from the same minutes that the
Company did not allow such a meeting to occur because of the
sale-process procedures. Finally, the December 12, 2007 minutes
reflect that the bidder "declined to submit a final proposal by
the due date" established by the Company.
o A reader could conclude from the December 9 and 12, 2007 Board
minutes (and other public statements by the Company) that the
restriction against bidders talking to Elan and Genentech did in
fact dissuade potential bidders from "entering the process or
continuing the process."
o Finally, the above-quoted minutes also call into question
Mullen's conflicting public explanations for the failure of the
sale process. At one point, Mullen claimed that the failure was
caused by "market conditions" and, at another, he said it was
because "the perceived risk profile of TYSABRI at this time is
simply too great." As stated above, a reader of the December 12,
2007 minutes could conclude that, with regards to at least one
bidder, the sale process failed because the Company refused that
bidder's request to talk to Elan.
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In conclusion, Biogen's books and records show that:
o the Board had very little input in designing and supervising the sales
process,
o it appears at least one potential bidder was denied its request to
talk to Elan before submitting a binding offer, which may have caused
that bidder to walk away from the process, and
o a number of Biogen's assertions regarding the process are not
consistent with their own documents.