-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IiRxS1wUWnqmlYBYuHUYtkxCEBnBaxZ+pbG/trTkd/F2iNSURMxpV6vMRG4Rd0+X 4Zg0O852wWNjkWmoQ6gbyQ== 0000928475-09-000025.txt : 20090129 0000928475-09-000025.hdr.sgml : 20090129 20090129151703 ACCESSION NUMBER: 0000928475-09-000025 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20090129 DATE AS OF CHANGE: 20090129 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENZON PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000727510 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 222372868 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-35587 FILM NUMBER: 09554333 BUSINESS ADDRESS: STREET 1: 685 ROUTE 202/206 CITY: BRIDGEWATER STATE: NJ ZIP: 08807 BUSINESS PHONE: 908 541 8671 MAIL ADDRESS: STREET 1: 685 ROUTE 202/206 STREET 2: ATT: GENERAL COUNSEL CITY: BRIDGEWATER STATE: NJ ZIP: 08807 FORMER COMPANY: FORMER CONFORMED NAME: ENZON PHARMACEUTICALS INC DATE OF NAME CHANGE: 20021211 FORMER COMPANY: FORMER CONFORMED NAME: ENZON PHARMACEUTICAL INC DATE OF NAME CHANGE: 20021210 FORMER COMPANY: FORMER CONFORMED NAME: ENZON INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 BUSINESS PHONE: 212-702-4300 MAIL ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 FORMER COMPANY: FORMER CONFORMED NAME: ICAHN CARL C ET AL DATE OF NAME CHANGE: 19950612 SC 13D/A 1 sch13damd1012909.txt 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 -----END PRIVACY-ENHANCED MESSAGE-----