0000928464-12-000214.txt : 20120813 0000928464-12-000214.hdr.sgml : 20120813 20120813171829 ACCESSION NUMBER: 0000928464-12-000214 CONFORMED SUBMISSION TYPE: DFAN14A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20120813 DATE AS OF CHANGE: 20120813 EFFECTIVENESS DATE: 20120813 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOREST LABORATORIES INC CENTRAL INDEX KEY: 0000038074 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 111798614 STATE OF INCORPORATION: DE FISCAL YEAR END: 1202 FILING VALUES: FORM TYPE: DFAN14A SEC ACT: 1934 Act SEC FILE NUMBER: 001-05438 FILM NUMBER: 121028561 BUSINESS ADDRESS: STREET 1: 909 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: (212)421-7850 MAIL ADDRESS: STREET 1: 909 THIRD AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 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: DFAN14A 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 DFAN14A 1 frxdfan14a081312fda.htm frxdfan14a081312fda.htm
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. __)


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Soliciting Material Pursuant to § 240.14a-12

Forest Laboratories, Inc.
 (Name of Registrant as Specified In Its Charter)

Carl C. Icahn
Dr. Eric J. Ende
Daniel A. Ninivaggi
Pierre Legault
Andrew J. Fromkin
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II L.P.
Icahn Partners Master Fund III L.P.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital L.P.
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
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FOR IMMEDIATE RELEASE
 
 
ICAHN COMMENTS ON WARNING LETTER JUST SENT BY FDA TO FOREST
 
 
New York, New York, August 13, 2012, Carl Icahn made the following comments on Forest Labs (NYSE: FRX):

On August 1, 2012, Forest received a warning letter from the FDA, regarding a violation of Daliresp promotional practices by its sales reps.  This warning letter follows another warning letter from the FDA in April 2011 regarding unethical sales practices by a Forest sales rep concerning Savella.  Importantly, both of these letters were issued AFTER Forest’s settlement with the US Department of Justice in September 2010 regarding similar unethical sales practices pursuant to which Forest pled guilty to a felony charge, paid over $300 million in fines and signed a 5-year Corporate Integrity Agreement to resolve these matters.
 
It is obviously worrisome that these practices would be ongoing at Forest given its chequered history in similar matters.  In fact, Forest has received 2 of the last 43, or about 5%, of all warning letters of this type issued by the FDA in the last 18 months despite thousands of products being promoted by hundreds of companies.  And more importantly, Forest is one of the only companies lax enough to receive multiple warning letters while subject to a Corporate Integrity Agreement.  Moreover, it is alarming that the FDA specifically states in the warning letter that it is concerned given the pre-existing requirements under the Corporate Integrity Agreement.  It should be noted that Forest previously disclosed that “failure to comply with the terms of the Corporate Integrity Agreement could result in substantial penalties and potential exclusion from government health care programs” and this is a potential breach of Forest’s obligations under that agreement.

And why wouldn’t Forest disclose this to shareholders in the 10-Q it filed on Friday, August 10, 2012.  I am sure they will say that they were advised that they could get away without disclosure.  But that is neither the right answer for shareholders nor the right message to the management. In fact, I believe that Forest has been very aggressive in its lack of disclosure with the SEC – many of their major license agreements are not publicly filed with the SEC even though all material agreements are required to be filed with the SEC and they have been opaque on their succession plans, to name just a few deficiencies.

This is yet another example of the stark lack of corporate governance at Forest where an ineffective Board made up largely of non-independent directors is unwilling or unable to hold Howard Solomon and his management team accountable.  From personal experience I can tell you that Dan Ninivaggi has great experience in the area of corporate governance and management accountability and he would not be a wallflower on this Board.  Additionally, Pierre Legault has a strong operational background in employee supervision and human resources, an area that appears to be lacking at Forest.  We need to add strong independent directors, like Dan Ninivaggi and Pierre Legault, my two nominees recommended by ISS, as well as my other nominees, to instill much needed corporate governance and independence on the Board and bring this great company back to the shareholders.
 

 
 

 
 

 
 

 
 

 
 

 
 
Contact: Susan Gordon (212) 702-4309
 

 
 
 

 

 
 
ON JULY 23, 2012, THE PARTICIPANTS (AS DEFINED BELOW) FILED A DEFINITIVE PROXY STATEMENT WITH THE SECURITIES AND EXCHANGE COMMISSION. SECURITY HOLDERS ARE ADVISED TO READ THE DEFINITIVE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN, DR. ERIC J. ENDE, PIERRE LEGAULT, ANDREW J. FROMKIN, DANIEL A. NINIVAGGI, ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II L.P., ICAHN PARTNERS MASTER FUND III L.P., 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, AND BECKTON CORP. (COLLECTIVELY, THE “PARTICIPANTS”) FROM THE STOCKHOLDERS OF FOREST LABORATORIES, INC. FOR USE AT ITS 2012 ANNUAL MEETING OF STOCKHOLDERS, BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS. THE DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY IS AVAILABLE TO STOCKHOLDERS OF FOREST LABORATORIES, INC. FROM THE PARTICIPANTS AT NO CHARGE AND IS ALSO AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV OR BY CONTACTING D.F. KING & CO., INC. BY TELEPHONE AT THE FOLLOWING NUMBERS:  STOCKHOLDERS CALL TOLL−FREE: (800) 697−6975 AND BANKS AND BROKERAGE FIRMS CALL: (212) 269−5550.  CONSENT OF THE AUTHOR AND PUBLICATION NEITHER SOUGHT NOR OBTAINED TO USE THE MATERIAL REFERRED TO HEREIN AS PROXY SOLICITING MATERIAL.