Securities Exchange Act of 1934
Application of Rule 14a-4(d)(4) to Solicitation for Proposed Minority Slate of Icahn
Dear Mr. Weitzen and Ms. Keating,
We are responding to your letter dated March 30, 2009 addressed to Michele M. Anderson and Nicholas P. Panos, as supplemented by telephone conversations with the staff of the Division of Corporation Finance, with regard to your request for relief. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed photocopy of your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your March 30, 2009 letter.
Based upon the representations and facts presented in your letter, the staff in the Division of Corporation Finance will not recommend that the Commission take enforcement action under Exchange Act Rule 14a-4(d)(4) and Exchange Act Section 14(a) as it pertains only to Rule 14a-4(d)(4) if, in connection with its solicitation of proxies to vote at the Registrant's 2009 Stockholder Meeting, Icahn solicits votes not only for its own nominees, but also seeks authority to vote for the ECM nominees as well as for the Registrant's nominees in the manner described in your letter.
We condition this relief on your representation that Icahn and ECM have not expressly or impliedly agreed to act as a group or otherwise engaged in any activities that would be deemed to cause the formation of a "group" as determined under Section 13(d)(3) and in Regulation 13D-G, and that Icahn has no present intention to form a group with ECM. The relief granted herein is unavailable if Icahn and ECM form a group or Icahn otherwise forms an intent to form a group as determined under Section 13(d)(3) and in Regulation 13D-G at any time before or during the Registrant's 2009 Annual Meeting of Stockholders.
In issuing this no-action position, we also considered the following facts, among others:
your representation that Icahn will not actively recommend, and will direct its proxy solicitors not to actively recommend, the election of Eastbourne's nominees but will only state its intention to vote for Eastbourne's expected nominees other than those nominees specifically named on the Icahn proxy card and the effect of such vote on the potential composition of the Board of Directors;
each of Icahn and ECM is soliciting in support of nominees who, if elected, would constitute a minority of the Board;
your representation that Icahn will comply with all requirements of Exchange Act Rule 14a-4(d)(4)(i)-(iv) in "rounding out" its slate with the Registrant's nominees;
your representation that Icahn will comply with all requirements of Exchange Act Rule 14a-4(d)(4)(ii)-(iv) in "rounding out" its slate with ECM's nominees by treating the ECM nominees as if they were Registrant nominees;
your representation that Icahn will otherwise comply with any other requirements of Rule 14a-4(d), to the extent applicable, in its solicitation of proxies to vote in the Registrant's 2009 Annual Meeting of Stockholders; and
in order to comply with Rule 14a-4(d)(4)(i), Icahn will need to use its proxy authority to vote for at least two of the Registrant's nominees.
The foregoing no-action position is based solely on your representations and the facts presented in your letter dated March 30, 2009, as supplemented by telephone conversations with the Commission staff. Any different facts or circumstances may require a different conclusion. This relief is strictly limited to the application of the rule listed above to Icahn's solicitation of proxies to vote in respect of the Registrant's 2009 Annual Meeting of Stockholders. Any changes in the facts described and representations made in your letter may change our conclusion. You should immediately notify the staff if there is a change in any of the facts or representations set forth in your letter.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal or state securities laws rests with Icahn. This letter expresses our position with respect to Enforcement action only and does not express any legal conclusion on the question presented. The Division of Corporation Finance expresses no view with respect to any other questions that may be raised by the solicitation of proxies in connection with the Registrant's 2009 Annual Meeting of Stockholders.
For the Division of Corporation Finance,
Michele M. Anderson
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
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