-----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, BSomdE9tay25dWYVcw5RK15tzqBFg1bfPVSzN+zXyUeNincneeZOX1MXFTJzdPIO DFP8ebyvR0ssqWvtwdUAPg== 0001341004-06-000040.txt : 20061003 0001341004-06-000040.hdr.sgml : 20061003 20060106172518 ACCESSION NUMBER: 0001341004-06-000040 CONFORMED SUBMISSION TYPE: CORRESP PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20060106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FAIRMONT HOTELS & RESORTS INC CENTRAL INDEX KEY: 0001030561 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 980161783 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: CORRESP BUSINESS ADDRESS: STREET 1: 100 WELLINGTON STREET W STREET 2: SUITE 1600 CP TOWER TD CTR CITY: TORONTO ONTARIO STATE: A6 ZIP: 00000 BUSINESS PHONE: 4168742847 MAIL ADDRESS: STREET 1: 100 WELLINGTON STREET W STREET 2: SUITE 1600 CP TOWER TD CTR CITY: TORONTO ONTARIO STATE: A6 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: CANADIAN PACIFIC LTD/ DATE OF NAME CHANGE: 19970113 CORRESP 1 filename1.txt [Skadden, Arps, Slate, Meagher & Flom LLP Letterhead] January 6, 2006 By FedEx and EDGAR - ------------------ Securities and Exchange Commission 100 F Street N.E. Washington, D.C. 20549 Attn: Abby Adams, Esq. Re: Fairmont Hotels & Resorts Inc. Schedule 14D-9 Filed on December 22, 2005 File No. 005-50486 Dear Ms. Adams: On behalf of Fairmont Hotels & Resorts Inc., a corporation organized under the laws of Canada (the "Company" or "Fairmont"), set forth below are the Company's responses to the comments of the staff (the "Staff") of the Securities and Exchange Commission (the "Commission") contained in your letter dated December 29, 2005 (the "Comment Letter") with respect to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on December 22, 2005 (the "Schedule 14D-9"). In connection with this response to the Comment Letter, the Company is filing electronically with the Commission today Amendment No. 2 (the "Amendment") to the Schedule 14D-9, as previously amended by Amendment No. 1 filed by the Company on December 23, 2005. The headings and numbered paragraphs of this letter correspond to the headings and paragraph numbers contained in the Comment Letter. Capitalized terms used but not defined in this letter shall have the meanings given to such terms in the Schedule 14D-9. SCHEDULE 14D-9 - -------------- 1. TELL US WHAT CONSIDERATION FAIRMONT GAVE TO DISCLOSING THE INFORMATION THAT FORMED THE BASIS FOR THE THREE FINANCIAL ADVISORS' OPINIONS. COMPANY RESPONSE: In deciding whether to disclose the information that formed the basis for the three financial advisors' opinions, the Company considered all applicable disclosure requirements under both Canadian and U.S. law. The Company noted that Schedule 14D-9 does not specifically require such disclosure and that such disclosure is generally not provided either in Canada or the U.S. in the context of tender offers such as Abby Adams, Esq. January 6, 2006 Page 2 the Icahn Offer. The Company does not believe that the nature of the Icahn Offer or the Company's recommendation with respect thereto would require disclosure of such information. The Company also considered the requirement of Schedule 14D-9 to provide the reasons for the Board of Directors' recommendation regarding the Icahn Offer, for which the opinions of financial advisors were one consideration. In that context, the Company considered it appropriate to refer to and provide the entire text of the three financial advisors' opinions in the Schedule 14D-9. While the Company believes that the conclusions reached by the financial advisors as set forth in their respective opinions are relevant to shareholders, the Company does not believe that the disclosure of such opinions, without more information, is misleading from the perspective of the Company's shareholders. Opinions of this type reflect the subjective judgment of a professional advisor and, as such, it is the bottom line conclusion that is most critical to shareholders. Furthermore, Fairmont believes that the disclosure of detailed information about any analysis undertaken by its financial advisors with respect to possible alternatives could be detrimental to the Company's ongoing efforts to explore alternatives to the Icahn Offer. In particular, the Board of Directors' and the Special Committee's negotiating leverage in exploring a transaction with a third party and maximizing shareholder value could be adversely affected if information about the financial advisors' analysis were to be made public. In addition, we note that the financial advisors did not identify any particular item as forming the basis of their opinions. In light of the foregoing, and after a review of the Schedule 14D-9 as a whole, including the opinions of UBS Securities LLC, Avington International and Scotia Capital Inc., which have been reprinted in their entirety in the Schedule 14D-9 and the Amendment, the Company believes that it has satisfied its Schedule 14D-9 obligation to describe the reasons for the Board's recommendation and does not believe that any additional disclosure is necessary. 2. PLEASE PROVIDE US ANNOTATED COPIES OF THE REPORTS CITED IN YOUR DOCUMENT, INCLUDING THE TABLES ON PAGES 8 AND 10. COMPANY RESPONSE: In response to the Staff's comment, we are supplementally providing to the Staff annotated copies of the tables on pages 8 and 10. The Company is not aware of any other similar items in the Schedule 14D-9 subject to annotation. In addition, upon further review of such information, we noted that in the table on page 8, the figure relating to Global Hotel and Casino Unsolicited Take-over Premiums, stated as 40%, should be revised to 39%. The Company has revised Item 4 of the Schedule 14D-9 to reflect this change. Abby Adams, Esq. January 6, 2006 Page 3 THE ICAHN OFFER IS STRUCTURALLY COERCIVE, PAGE 9 - ------------------------------------------------ 3. GIVEN THE DISCLOSURE HERE REGARDING THE CHOICES AVAILABLE TO SECURITY HOLDERS, IT IS UNCLEAR WHY YOU REFER TO THE OFFER AS "COERCIVE." ACCORDINGLY, PLEASE REVISE THE DOCUMENT TO REMOVE REFERENCES TO "COERCIVE." COMPANY RESPONSE: The Company believes that it is appropriate to describe an offer as structurally coercive if it may have the effect of pressuring shareholders into accepting the offer irrespective of whether they believe that the offer is fair or adequate. The Company further believes that the Icahn Offer fits that description because, as a partial offer, it is designed, if successful, to give the bidder a controlling stake in the Company, without any assurance as to the timing or nature of any second-step transaction for the remainder of the shares, or even if such transaction is to occur at all. This creates a risk for shareholders that they may be left holding shares as minority shareholders in a company controlled by a single entity, possibly with a reduced value for the reasons discussed in the Schedule 14D-9. In addition, even if a second-step transaction for the remaining shares does occur, there is no assurance as to the terms of any such transaction, including as to whether all shareholders will be treated fairly and equally. In light of the foregoing, shareholders, not knowing what others might be doing, may feel compelled, given the structure of the Icahn Offer, to tender their Shares to avoid being left as minority shareholders and out of fear that their Shares might have a reduced value if the Icahn Offer is successful for the reasons discussed in the Schedule 14D-9, and not because they think that the price for the Shares offered in the Icahn Offer is fair or adequate. Lastly, we note that the Schedule 14D-9 contains a description as to why Fairmont believes that the Icahn Offer is coercive, which makes clear to shareholders what is meant by the term and, as such, should serve to address any concerns that the Staff may otherwise have had with respect to the use of the term. ICAHN IS SEEKING SHORT TERM PROFIT, PAGE 12 - ------------------------------------------- 4. PLEASE PROVIDE US SUPPORT FOR THE STATEMENTS IN POINTS 11 AND 12 ON A SUPPLEMENTAL BASIS. COMPANY RESPONSE: In response to the Staff's comment, with respect to the statements in point 11, the Company supplementally advises the Staff that the disclosure made in the Schedule 13D filing by Icahn and related parties with the Commission on November 7, 2005, stated that Icahn and related parties acquired the Shares because "they believe that the Shares are undervalued in the market place" and that their intent is to "encourage [the Company] to pursue strategic alternatives. . . " In the Schedule 13D, Icahn and related parties further noted, that such alternatives could include a sale of the Company or a sale of certain assets of the Company with the return of the proceeds of such sale to the Company's shareholders through a dividend or a stock repurchase program. Icahn Abby Adams, Esq. January 6, 2006 Page 4 reiterated these statements in the subsequent Amendment to Schedule 13D and Schedule TO, filed with the Commission on December 9, 2005, and the Amendment to Schedule 13D and Amendment to the Schedule TO, filed with the Commission on December 27, 2005. In particular, we refer you to the section discussing the purpose of the offer on page 4 of the Offering Circular, where the Icahn entities make clear their intention to have a sale of the Company promptly effected, whether by the existing directors or persons designated by the offerors. To the Company's knowledge, Icahn has not been a shareholder of the Company prior to August 24, 2005, and, as stated in the above-referenced filings, Icahn acquired the Shares with a view of pursuing a sale process. In light of the foregoing, the Company believes it is reasonable in characterizing Icahn's actions as seeking "an immediate short-term profit on Icahn's recent investment in Fairmont." With respect to the statement in point 12 that "with respect to a number of other companies in which Icahn-affiliated entities have made investments, Mr. Icahn has urged the company either to split up or significantly increase its leverage, with the proceeds of such leverage being paid to shareholders," the Company advises the Staff on a supplemental basis, of the following prior situations. In the course of their involvement with Kerr-McGee Corporation ("Kerr-McGee") in 2005, Icahn and related parties urged Kerr-McGee to pursue a transaction in which Kerr-McGee would sell a portion of its business, monetize forward production and distribute a stock dividend to its shareholders, as disclosed in the Schedule 14A filed by Icahn and related parties on March 3, 2005. Icahn, in a letter, also urged Kerr-McGee to increase its share repurchase program. We also note that Kerr-McGee, apparently to address the concerns of the Icahn related entities, launched a self-tender offer for shares of its common stock, which was financed by incurring debt, as described in the Schedule TO-I filed by Kerr-McGee on April 18, 2005. It is our understanding that the Icahn entities sold substantially all of their shares pursuant to this offer. Similarly, the Company notes that when Icahn and his related entities recently surfaced with an investment in Time Warner Inc. they called upon Time Warner to increase significantly its share repurchase program and urged the company to spin off completely its cable-TV division. In addition, in connection with their involvement with Mylan Laboratories Inc. ("Mylan"), Icahn and related parties pursued a sale of Mylan, as disclosed in the Schedule 14A filed by Icahn and related parties on November 19, 2004. We also note that Mylan, apparently in reaction to the actions of Icahn related entities, launched a tender offer for shares of its common stock, which was financed in part by incurring debt, as described in the Schedule TO-I filed by Mylan on June 16, 2005. It is our understanding that the Icahn entities sold substantially all of their shares pursuant to this offer. Abby Adams, Esq. January 6, 2006 Page 5 We also note that in connection with running a slate of directors for Blockbuster, Icahn suggested that Blockbuster consider issuing a one-time extraordinary dividend to shareholders. Lastly, we refer the Staff to USX and RJR Nabisco, where Icahn related entities urged the respective companies to split up. COMPLIANCE OF ICAHN OFFER WITH TAKE-OVER BID RULES, PAGE 13 - ----------------------------------------------------------- 5. ON A SUPPLEMENTAL BASIS, PLEASE PROVIDE US YOUR DETAILED ANALYSIS IN SUPPORT OF THE STATEMENT THAT, "IT WOULD APPEAR, BASED ON THE DISCLOSURE IN THE ICAHN OFFER AND THE 13D FILING, BY VIRTUE OF THEIR TERMS AND METHOD OF NEGOTIATION, THAT THE CALL OPTIONS MAY NOT FIT WITHIN THE NORMAL COURSE EXEMPTION FOR THE [CANADIAN] PRE-BID INTEGRATION RULES." COMPANY RESPONSE: As discussed in the Schedule 14D-9, the "pre-bid integration rules" contained in the Securities Act (Ontario) impose limits on pre-bid purchases to ensure the equal treatment of all shareholders where a take-over bid is made. The pre-bid integration rules require, in part, that Icahn must offer to acquire under the Icahn Offer the percentage of Shares that is at least equal to the highest percentage that the number of Shares acquired from a seller in a prior transaction (within 90 days of the Icahn Offer) was of the total number of Shares owned by the seller at the time of the prior transaction. In effect, the rule provides that, subject to limited exceptions, an offeror may not make a partial bid if the offeror voluntarily elected to accumulate shares prior to the bid and does so on what are deemed to be more favorable terms by buying the full position of any particular seller in the pre-bid market. The pre-bid integration rules do not apply to trades effected in the normal course on a published market so long as any broker acting for the purchaser or seller does not provide services beyond customary broker's functions and does not receive more than reasonable fees or commissions. Solicitation restrictions also apply. The Offering Circular indicates that Icahn used call options as well as direct share purchases as part of its pre-bid acquisition program, which occurred over the period between August 24, 2005 and November 29, 2005. Options were acquired over the period between October 19, 2005 and November 29, 2005. As best as the Company has been able to determine, the options were not exchange traded options for Shares but, in accordance with the disclosure in the Offering Circular, were negotiated options purchased by Icahn from a specific broker who acquired, or sold from his own account, the underlying Shares against each of the options written and sold to Icahn. All of the call options were then exercised on December 1, 2005. The structuring of the options is complex and is described in detail in Icahn's Schedule 13D filing. It would appear that the options were written on a basis where there was almost no circumstance under which the options would not be exercised due to the large upfront payments made in connection with the purchase of the options. These options Abby Adams, Esq. January 6, 2006 Page 6 appear to have been specifically designed at the request of Icahn. It is the Company's understanding, based on its review of publicly available options trading data for the Company's common shares for the period between October 19, 2005 and November 29, 2005, that the purchase of these options was not reported on any published market. We are advised by Canadian counsel to the Company that the pre-bid accumulation program does not appear to have involved the kind of normal course trading for which the limited exception was created in applicable Canadian securities laws. Areas of concern include not only the use of these specialized options but also the continuation of the program after the filing of Icahn's Schedule 13D which sets out a range of objectives of Icahn with respect to the Company. We are advised by Canadian counsel to the Company that this would seem to run counter to a staff notice of the Ontario Securities Commission in the sense that after the filing of Icahn's Schedule 13D sellers of Shares would have become aware of Icahn's intentions with respect to Fairmont. This was material new information and it would be difficult to argue that purchases of Shares by Icahn after the Schedule 13D filing constituted "normal course unsolicited transactions." In the interests of the shareholders of Fairmont and the fair and equal treatment of those shareholders, Fairmont's Canadian counsel has requested that the Ontario Securities Commission obtain further information from Icahn to establish whether there has been compliance with the pre-bid integration rules. TRADING IN SECURITIES OF FAIRMONT, PAGE 15 - ------------------------------------------ 6. WE NOTE THAT, "PURSUANT TO A NORMAL COURSE ISSUER BID, FAIRMONT PURCHASED AN AGGREGATE OF 2,526,700 SHARES BETWEEN JUNE 21, 2005 AND DECEMBER 21, 2005 ...." PLEASE REVISE TO PROVIDE THE INFORMATION REQUIRED BY ITEM 6 OF SCHEDULE 14D-9 WITH RESPECT TO THE COMPANY. COMPANY RESPONSE: In response to the Staff's comment, the Company has revised Item 6 of the Schedule 14D-9 to provide the requested information with respect to Shares purchased during the 60 days prior to the filing of the Schedule 14D-9. CONSENTS OF FINANCIAL ADVISORS, PAGE 20 - --------------------------------------- 7. WE NOTE THE DISCLAIMER IN THE LAST SENTENCE OF EACH CONSENT THAT THE "[FINANCIAL ADVISOR DOES] NOT INTEND THAT ANY PERSONS OTHER THAN THE SPECIAL COMMITTEE OR THE BOARD OF DIRECTORS RELY UPON SUCH OPINION." WE ALSO NOTE THE DISCLAIMER IN THE LAST PARAGRAPH OF EACH OPINION. AS THIS DISCLOSURE IS INCONSISTENT WITH THE DISCLOSURE OF THE OPINIONS IN THE DOCUMENT, PLEASE REVISE EACH PARAGRAPH ON THIS PAGE AND EACH OPINION INCLUDED WITH THE DOCUMENT TO ELIMINATE THESE DISCLAIMERS. COMPANY RESPONSE: In response to the Staff's comment, the Company is filing revised consents and opinions of each of UBS Securities LLC, Avington International and Scotia Capital Inc. Abby Adams, Esq. January 6, 2006 Page 7 8. REVISE TO DISCLOSE THE MATERIAL TERMS OF THE COMPENSATION AND OTHER ARRANGEMENTS WITH EACH FINANCIAL ADVISOR. SEE ITEM 1009(A) OF REGULATION M-A. COMPANY RESPONSE: In response to the Staff's comments, the Company has revised Item 5 of the Schedule 14D-9 to provide the requested information. * * * In addition, in response to the Staff's request, enclosed is an acknowledgment letter from Terence P. Badour, Executive Vice President, Law and Administration, of the Company. * * * Please feel free to telephone the undersigned at (212) 735-2218 or Morris J. Kramer or Thomas W. Greenberg of this firm at (212) 735-2700 or (212) 735-7886, respectively, if you have any questions or need any additional information. Sincerely, /s/ DAVID J. FRIEDMAN ------------------------ David J. Friedman cc: Morris J. Kramer, Esq. Thomas W. Greenberg, Esq. Terence P. Badour, Esq. G. Blair Cowper-Smith, Esq. Phillip C. Moore, Esq. [FAIRMONT HOTELS & RESORTS INC. LETTERHEAD] January 6, 2006 BY EDGAR - -------- Abby Adams, Esq. Securities and Exchange Commission 100 F Street, N.E. Washington, DC 20549 Re: Fairmont Hotels & Resorts Inc. Schedule 14D-9 Filed on December 22, 2005 File No. 005-50486 -------------------------------- Dear Ms. Adams: In response to the request of the staff (the "Staff") of the Securities and Exchange Commission (the "Commission") set forth in the Staff's letter sent December 29, 2005, Fairmont Hotels & Resorts Inc. (the "Company") hereby acknowledges that: (a) the Company is responsible for the adequacy and accuracy of the disclosure in its filings with the Commission; (b) Staff comments, or changes to disclosure in response to Staff comments do not foreclose the Commission from taking any action with respect to such filings; and (c) the Company may not assert Staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. [Signature Page Follows] Ms. Abby Adams, Esq. January 6, 2006 Page 2 of 2 Fairmont Hotels & Resorts Inc. By: /s/ Terence P. Badour ----------------------------------- Name: Terence P. Badour Title: Executive Vice President, Law and Administration cc: Morris J. Kramer, Esq. David J. Friedman, Esq. Thomas W. Greenberg, Esq. G. Blair Cowper-Smith, Esq. Phillip C. Moore, Esq. Global Hostile Transactions ( > US$1 Billion) - January 1, 2000 to December 16, 2005(1)
- ------------------------------------------------------------------------------------------------------------------------------- Premium Value of 20 trading days Date Transaction prior to Announced Target Name Acquiror Name (US$ mm) ann. date - ------------------------------------------------------------------------------------------------------------------------------- 12/5/2005 Guidant Corp Boston Scientific Corp $24,916 25.17% 12/2/2005 Fairmont Hotels & Resorts Inc Icahn Partners LP $1,186 14.03% 11/30/2005 General Maritime Corp FrontLine Ltd $1,364 5.51% 11/23/2005 Dofasco Inc Arcelor SA $4,219 50.15% 11/21/2005 NorthWestern Corp Black Hills Power Inc $1,280 17.49% 11/20/2005 Medicis Pharmaceutical Corp Mentor Corp $2,011 16.41% 11/14/2005 Inamed Corp Allergan Inc $2,995 15.84% 10/31/2005 Placer Dome Inc Barrick Gold Corp $9,348 19.80% 9/9/2005 Vincor International Inc Constellation Brands Inc $1,210 41.32% 9/5/2005 Endesa SA Gas Natural SDG SA $28,288 16.00% 8/22/2005 Patrick Corp Ltd Toll Holdings Ltd $3,098 10.39% 8/16/2005 Carter Holt Harvey Ltd Rank Group Ltd $1,142 3.73% 8/15/2005 London Stock Exchange PLC Macquarie Bank Ltd $2,586 15.99% 8/1/2005 Shurgard Storage Centers Inc Public Storage Inc $2,546 16.47% 7/17/2005 Maytag Corp Whirlpool Corp $2,654 38.52% 6/30/2005 NorthWestern Corp Montana Public Power Inc $2,001 12.26% 6/22/2005 Unocal Corp CNOOC $18,472 57.75% 6/20/2005 Maytag Corp Investor Group $1,275 3.96% 6/13/2005 Leica Geosystems AG Hexagon AB $1,075 62.22% 6/12/2005 HeidelbergCement AG Spohn Cement GmbH $3,341 25.00% 6/3/2005 Acxiom Corp ValueAct Capital Partners LP $2,274 28.27% 2/15/2005 Circuit City Stores Inc Highfields Capital Mgmt LP $3,119 19.55% 2/11/2005 MCI Inc Qwest Commun Intl Inc $9,743 54.56% 2/9/2005 Somerfield PLC Violet Acquisitions Ltd $1,792 26.68% 1/25/2005 Beverly Enterprises Inc Investor Group $1,512 41.13% 1/17/2005 Southcorp Ltd Fosters Group Ltd $2,025 15.32% 12/16/2004 Goldcorp Inc Glamis Gold Ltd $2,865 2.77% 12/13/2004 London Stock Exchange PLC Deutsche Boerse AG $2,625 33.83% 11/18/2004 Mylan Laboratories Inc Carl Icahn $4,990 17.65% 11/8/2004 General Property Trust Stockland $5,647 -0.18% 10/28/2004 WMC Resources Ltd Xstrata PLC $6,523 34.32% 10/21/2004 Kidde PLC United Technologies Corp $2,476 31.21% 10/18/2004 Gold Fields Ltd Harmony Gold Mining Co Ltd $8,238 32.03% 8/24/2004 UFJ Holdings Inc Sumitomo Mitsui Finl Grp Inc $29,261 42.85% 7/1/2004 DRS Technologies Inc L-3 Communications Hldg Inc $1,155 50.27% 5/27/2004 Wheaton River Minerals Ltd Coeur d'Alene Mines Corp $2,308 56.24% 5/27/2004 Marks & Spencer Group PLC Revival Acquisitions Ltd $16,699 44.40% 5/24/2004 NeighborCare Inc Omnicare Inc $1,821 44.19% 2/11/2004 Walt Disney Co Comcast Corp $66,755 6.29% 1/26/2004 Aventis SA Sanofi-Synthelabo SA $60,243 27.51% 11/7/2003 Canary Wharf Group PLC CWG Acquisition Ltd $3,047 4.96% 10/6/2003 UGC Europe Inc UnitedGlobalCom Inc $1,352 32.85% 7/8/2003 Dana Corp ArvinMeritor Inc $2,668 65.44% 7/7/2003 Pechiney SA Alcan Inc $5,302 73.02% 6/6/2003 PeopleSoft Inc Oracle Corp $10,467 64.49% 5/20/2003 Centerpulse AG Zimmer Holdings Inc $3,265 30.31% 5/12/2003 Debenhams PLC Laragrove Ltd $2,493 52.87% 3/10/2003 Iberdrola SA Gas Natural SDG SA $16,962 21.52% 3/3/2003 Six Continents PLC Cap Management & Investment $9,090 36.42% 1/22/2003 Metrovacesa SA Investor Group $1,900 33.33% 1/15/2003 Taubman Centers Inc Investor Group $1,714 23.07% 12/13/2002 Goodman Fielder Ltd Burns Philp & Co Ltd $1,178 13.54% 11/13/2002 Taubman Centers Inc Simon Property Group Inc $1,536 35.14% 10/23/2002 GB-Inno-BM SA Investor Group $1,183 9.38% 10/21/2002 Fording Inc Sherritt Coal Partnership II $1,156 58.01% 9/23/2002 Dole Food Co Inc David H Murdock $1,464 18.00% 5/31/2002 Hotels.com USA Interactive $1,015 -18.20% 5/27/2002 AurionGold Ltd Placer Dome Asia Pacific Ltd $1,190 62.71% 5/20/2002 Partek AB Oy Kone Corp $1,135 20.94% 5/15/2002 Castorama Dubois Kingfisher PLC $4,362 7.63% 3/21/2002 Haslemere NV Investor Group $1,404 32.93% 2/22/2002 TRW Inc Northrop Grumman Corp $6,678 32.82% 12/17/2001 P&O Princess Cruises PLC Carnival Corp $5,538 161.06% 9/5/2001 Normandy Mining Ltd Anglogold Ltd $2,164 72.34% 8/14/2001 CenturyTel Inc ALLTEL Corp $9,403 32.92% 8/6/2001 US Airways Group Inc Global Airlines Corp $10,060 81.82% 8/1/2001 Cooper Industries Inc Danaher Corp $6,965 41.78% 7/2/2001 Edison SpA Italenergia Bis SpA $2,139 8.71% 6/23/2001 Overseas Union Bank Ltd DBS Group Holdings Ltd $5,182 32.82% 6/12/2001 Howard Smith Ltd Wesfarmers Ltd $1,355 43.51% 6/12/2001 Keppel Capital Holdings Ltd Oversea-Chinese Bkg Corp Ltd $3,754 32.72% 5/31/2001 FH Faulding & Co Ltd Mayne Nickless Ltd $1,218 39.09% 5/20/2001 Storebrand ASA Den Norske Bank Holding ASA $1,913 10.60% 5/14/2001 Wachovia Corp,Winston-Salem,NC SunTrust Banks Inc,Atlanta,GA $14,443 14.85% 5/8/2001 Newport News Shipbuilding Inc Northrop Grumman Corp $3,057 30.56% 3/31/2001 HIDROCANTABRICO Ferroatlantica SL $2,381 33.22% 3/7/2001 Barrett Resources Corp Shell Oil Co $2,438 21.33% 2/27/2001 Fletcher Challenge Energy Peak Petroleum Co $1,327 -1.77% 2/19/2001 Sulzer AG Incentive Capital AG $2,658 12.95% 1/31/2001 Abbey National PLC Lloyds TSB Group PLC $28,949 27.72% 11/13/2000 Willamette Industries Inc Weyerhaeuser Co $7,857 106.03% 6/23/2000 North Ltd Rio Tinto Ltd $2,091 74.63% 5/31/2000 Hyder PLC WPD Holdings UK $3,403 81.36% 5/18/2000 Woodside Petroleum Ltd Shell Australia Ltd $3,397 45.95% 5/2/2000 Bestfoods Unilever PLC $25,065 53.28% 3/30/2000 Nabisco Group Holdings Corp Carl Icahn $1,300 54.07% 3/8/2000 Pinnacle Entertainment Inc Harveys Casino Resorts $1,353 29.45% 3/6/2000 Dime Bancorp Inc,New York,NY North Fork Bancorp,Melville,NY $1,908 -12.83% 3/2/2000 Shared Medical Systems Corp Eclipsys Corp $1,869 36.73% 2/24/2000 Aetna Inc Investor Group $10,031 30.68% 2/22/2000 Mirage Resorts Inc MGM Grand Inc $6,483 66.34% 2/1/2000 Blue Circle Industries PLC Lafarge SA $5,758 25.08% 1/27/2000 NCL Holding ASA Carnival Corp $1,301 82.64% Average: 33.95% (1) Source: Thomson Financial, Bloomberg, Press Releases, Public Filings.
Global Hotel and Casino Hostile Transactions ( > US$1 Billion) - January 1, 2000 to December 16, 2005(1)
- ------------------------------------------------------------------------------------------------------------------------------- Premium Value of 20 trading days Date Transaction prior to Announced Target Name Acquiror Name (US$ mm) ann. date - ------------------------------------------------------------------------------------------------------------------------------- 12/2/2005 Fairmont Hotels & Resorts Inc Icahn Partners LP $1,186 14.03% 3/3/2003 Six Continents PLC Cap Management & Investment $9,090 36.42% 2/22/2000 Mirage Resorts Inc MGM Grand Inc $6,483 66.34% Average: 38.93% (1) Source: Thomson Financial, Bloomberg, Press Releases, Public Filings.
Canadian Hostile Transactions ( > US$500 million) - January 1, 2000 to December 16, 2005(1)
- ------------------------------------------------------------------------------------------------------------------------------- Premium Value of 20 trading days Date Transaction prior to Announced Target Name Acquiror Name (US$ mm) ann. date(2) - ------------------------------------------------------------------------------------------------------------------------------- 12/2/2005 Fairmont H&R Inc. (51%) Icahn Partners LP $1,186 14.03% 11/23/2005 Dofasco Inc. Arcelor SA $4,219 50.15% 11/8/2005 Royster-Clark Agrium Inc. $535 28.21% 10/31/2005 Placer Dome Inc. Barrick Gold Corp. $9,348 19.81% 10/28/2005 Hudson's Bay Co. Maple Leaf Heritage Investments C$1,032 8.86% 9/15/2005 Canico Resource Corp. CVRD $646 56.39% 5/14/2004 Microcell Telecommunic-Cl A Rogers Wireless Communications $688 47.74% Inc. 12/9/2002 Canada Life Financial Corp Great-West Lifeco Inc. $3,735 51.62% 10/21/2002 Fording Inc Fording Canadian Coal Trust $1,149 54.73% 2/20/2001 Luscar Coal Income Fund Sherritt International/OTPP $622 76.21% 12/27/2000 Berkley Petroleum Corp Anadarko Petroleum Corp. $904 68.89% 11/11/2000 Mackenzie Financial Corp IGM Financial Inc. $2,305 57.89% 8/22/2000 Rio Algom Ltd BHP Biliton PLC $1,692 52.11% 4/6/2000 Ranger Oil Ltd Canadian Natural Resources $1,028 57.14% 4/5/2000 Ulster Petroleums Anderson Exploration $584 60.62% Average: 46.96% (1) Source: Thomson Financial, Bloomberg, Press Releases, Public Filings. (2) Premium for pending transactions based on latest highest offer.
Analysis of Float - ---------------------------------------------------------------------------------------------------------------------------------- Shares Value of Price Out Float Float Float Company ($US) (1) (mm) (2) (mm) (3) (%) ($mm) Icahn Pro Forma Holdings Calculation (mm) ------------------------------------------------------------------------- -------------------------------------------------- Starwood 63.43 217.7 216.7 99.5 13,743 Icahn Current FHR Shares (as of 12/2/05) 7.1 Marriott Int'l 66.96 208.4 171.7 82.4 11,498 Icahn Bid to Acquire Additional Shares 29.6 Hilton Corp 22.58 381.5 351.8 92.2 7,943 ------- Host Marriott 18.39 353.5 335.4 94.9 6,167 Total Pro Forma Icahn Shares 36.8 FHR Pre-Icahn 40.18 72.3 72.1 99.7 2,897 FHR Post-Icahn(4) 40.18 72.3 35.3 48.9 1,420 Four Seasons 48.21 32.9 25.3 77.0 1,220 - ---------------------------------------------------------------------------------------------------------------------------------- Notes: 1 As of December 20, 2005; Source: Bloomberg 2 Based on basic (undiluted) numbers of shares outstanding; Source: Bloomberg 3 Source: Bloomberg 4 FHR Post-Icahn Float calculated as current float (72.1mm shares) less Pro Forma shares owned by Icahn (36.8mm)
-----END PRIVACY-ENHANCED MESSAGE-----