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
[ ] Definitive Additional Materials
[X] Soliciting Material Pursuant to ss. 240.14a-12
Time Warner Inc.
(Name of Registrant as Specified In Its Charter)
Icahn Partners LP
Icahn Partners Master Fund LP
American Real Estate Partners, L.P.
Carl C. Icahn
Franklin Mutual Advisers, LLC
JANA Partners LLC
JANA Master Fund, Ltd.
S.A.C. Capital Advisors, LLC
S.A.C. Capital Associates, LLC
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
On December 19, 2005, the Carl Icahn issued a press release relating to Time
Warner Inc. A copy of the press release is filed herewith as Exhibit 2.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY ICAHN PARTNERS LP, ICAHN PARTNERS
MASTER FUND LP, AMERICAN REAL ESTATE PARTNERS, L.P., FRANKLIN MUTUAL ADVISERS,
LLC, JANA PARTNERS LLC, JANA MASTER FUND, LTD., S.A.C. CAPITAL ADVISORS, LLC,
S.A.C. CAPITAL ASSOCIATES, LLC AND CERTAIN OF THEIR RESPECTIVE AFFILIATES FROM
THE STOCKHOLDERS OF TIME WARNER INC. FOR USE AT ITS ANNUAL MEETING WHEN THEY
BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING
INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. WHEN
COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO
STOCKHOLDERS OF TIME WARNER INC. AND WILL BE AVAILABLE AT NO CHARGE AT THE
SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV. INFORMATION
RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION IS CONTAINED IN EXHIBIT
1 HERETO. INFORMATION INDICATED HEREIN AS HAVING BEEN OBTAINED FROM THIRD
PARTIES IS USED WITHOUT ANY EXPRESS CONSENT OF SUCH THIRD PARTIES AND SHOULD NOT
BE VIEWED AS INDICATING THE SUPPORT OF SUCH PERSONS FOR THE VIEWS EXPRESSED
HEREIN.
EXHIBIT 1
PARTICIPANTS
The participants in the solicitation of proxies (the "Participants")
include the following: Icahn Partners LP ("Icahn Partners"), Icahn Partners
Master Fund LP ("Icahn Master"), American Real Estate Partners, L.P. ("AREP"),
Mr. Carl C. Icahn, Mr. Vincent J. Intrieri, Mr. Keith A. Meister, Mr. Nick
Graziano, Franklin Mutual Advisers, LLC ("FMA"), Mr. Michael Embler, Ms. Mandana
Hormozi, Mr. Peter Langerman, JANA Partners LLC ("JANA Partners"), JANA Master
Fund, Ltd. ("JANA Master"), Mr. Barry Rosenstein, S.A.C. Capital Advisors, LLC
("SAC Advisors"), S.A.C. Capital Associates, LLC ("SAC Associates"), Mr. Steven
A. Cohen, Mr. David L. Older and Mr. Drew E. Gillanders.
Icahn Partners, Icahn Master and AREP (collectively, the "Icahn Parties")
are entities controlled by Carl C. Icahn. Carl C. Icahn is a principal of each
of the Icahn Parties. Keith A. Meister, Nick Graziano and Vincent J. Intrieri
are employees and/or officers or directors of one or more of the Icahn Parties.
Each of Messrs. Icahn, Meister, Graziano and Intrieri may participate in
soliciting proxies from Time Warner stockholders. Messrs. Meister, Graziano and
Intrieri do not own beneficially any interest in securities of Time Warner, and
will not receive any special compensation in connection with such solicitation.
Franklin Mutual Advisers, LLC ("FMA") is an investment adviser to a number
of investment companies which beneficially own common stock of Time Warner. Mr.
Embler, Mr. Langerman and Ms. Hormozi are employees and/or officers of FMA who
may also participate in soliciting proxies from Time Warner stockholders.
Messrs. Embler and Langerman and Ms. Hormozi do not own beneficially any
interest in securities of Time Warner, and will not receive any special
compensation in connection with such solicitation.
JANA Partners and JANA Master (collectively, the "JANA Parties") are
entities controlled by Mr. Rosenstein and Gary Claar. Mr. Rosenstein may
participate in soliciting proxies from Time Warner stockholders.
SAC Advisors is controlled by Mr. Cohen. Pursuant to an investment
agreement, SAC Advisors has investment and voting power with respect to the
securities held by SAC Associates (together with SAC Advisors, the "SAC
Parties"). Mr. Older is an employee of CR Intrinsic Investors, LLC, an affiliate
of SAC Advisors, and Mr. Gillanders is an employee of SAC Advisors. Each of
Messrs. Cohen, Older and Gillanders may participate in soliciting proxies from
Time Warner stockholders. Messrs. Older and Gillanders do not own beneficially
any interest in securities of Time Warner, and will not receive any special
compensation in connection with such solicitation.
The Icahn Parties
Icahn Partners is a Delaware limited partnership principally engaged in the
business of investing in securities. Icahn Onshore LP ("Icahn Onshore") is a
Delaware limited partnership primarily engaged in the business of acting as the
general partner of Icahn Partners. CCI Onshore Corp. ("CCI Onshore") is a
Delaware corporation primarily engaged in the business of acting as the general
partner of Icahn Onshore. CCI Onshore is wholly owned by Mr. Icahn.
Icahn Master is a Cayman Islands exempted limited partnership principally
engaged in the business of investing in securities. Icahn Offshore LP ("Icahn
Offshore") is a Delaware limited partnership primarily engaged in the business
of acting as the general partner of Icahn Master. CCI Offshore Corp. ("CCI
Offshore") is a Delaware corporation primarily engaged in the business of acting
as the general partner of Icahn Offshore. CCI Offshore is wholly owned by Mr.
Icahn.
AREP is a publicly-traded Delaware master limited partnership engaged in a
variety of businesses, including rental real estate, real estate development,
hotel and resort operations, hotel and casino operations, oil and gas
exploration and production, home fashions and investments in equity and debt
securities. American Property Investors, Inc. ("API") is a Delaware corporation
primarily engaged in the business of acting as the general partner of AREP.
Beckton Corp. ("Beckton") is a Delaware corporation primarily engaged in the
business of holding the stock of API. Beckton is wholly owned by Mr. Icahn.
Carl C. Icahn is a principal of the Icahn Parties. Through his ownership of
CCI Onshore, CCI Offshore and Beckton, Mr. Icahn indirectly controls the Icahn
Parties. Vincent J. Intrieri, Nick Graziano and Keith A. Meister are employees
and/or officers or directors of one or more of the Icahn Parties and various
other entities controlled by Mr. Icahn.
Mr. Icahn, through his control of the Icahn Parties, may be deemed to be
the indirect beneficial owner of 55,424,900 shares (including shares underlying
call options) of common stock ("Common Stock") of Time Warner, which represents
approximately 1.21% of outstanding shares of Common Stock as of the date hereof.
Icahn Master is the direct beneficial owner of 24,844,096 shares (including
shares underlying call options) of the Common Stock, Icahn Partners is the
direct beneficial owner of 19,580,804 shares (including shares underlying call
options) of the Common Stock and AREP is the direct beneficial owner of
11,000,000 shares of the Common Stock. Icahn Offshore, as the general partner of
Icahn Master, and CCI Offshore, as the general partner of Icahn Offshore, may
each be deemed to be the indirect beneficial owner of the shares of Common Stock
directly owned by Icahn Master. Icahn Onshore, as the general partner of Icahn
Partners, and CCI Onshore, as the general partner of Icahn Onshore, may each be
deemed to be the indirect beneficial owner of the shares of Common Stock
directly owned by Icahn Partners. API, as the general partner of AREP, and
Beckton, as the sole stockholder of API, may each be deemed to be the indirect
beneficial owner of the shares of Common Stock directly owned by AREP. Carl C.
Icahn, as the sole stockholder of each of CCI Offshore, CCI Onshore and Beckton,
may be deemed to be the indirect beneficial owner of the shares of Common Stock
directly owned by Icahn Master, Icahn Partners and AREP.
The Franklin Parties
FMA is a Delaware limited liability company registered as an investment
advisor with the U.S. Securities and Exchange Commission. Pursuant to advisory
contracts with each of its investment company clients, FMA has sole investment
and voting discretion over the shares of the Common Stock of Time Warner
beneficially owned by its advisory funds. FMA is a subsidiary of Franklin
Resources, Inc., a publicly-listed global investment organization operating as
Franklin Templeton Investments.
Michael Embler is Chief Investment Officer and Senior Vice President of
FMA. Mandana Hormozi is a research analyst for FMA. Peter Langerman is president
and CEO of FMA and chairman of Franklin Mutual Series Funds Inc., whose funds
comprise the majority of assets managed by FMA.
FMA, through its control of the shares owned by its advisory funds, may be
deemed to be the beneficial owner of 27,960,670 shares (including shares
underlying call options) of Time Warner, which represents approximately 0.61% of
outstanding shares of Common Stock as of the date hereof.
The JANA Parties
JANA Partners is a Delaware limited liability company principally engaged
in the business of making investments. JANA Master is a Cayman Islands exempted
company principally engaged in the business of making investments. JANA Partners
serves as the investment manager to JANA Master and a separate managed account.
Barry Rosenstein is the founder and managing partner of JANA Partners.
JANA Master is the direct beneficial owner of 28,450,012 shares (including
shares underlying call options) of Common Stock, which represents approximately
0.62% of outstanding shares of Common Stock as of the date hereof. In addition,
a separate account managed by JANA Partners is the direct beneficial owner of
1,553,188 shares (including shares underlying call options) of Common Stock,
which represents approximately 0.034% of outstanding shares of Common Stock as
of the date hereof. As the investment manager of JANA Master and the managed
account, JANA Partners may be deemed to be an indirect beneficial owner of the
30,003,200 shares of Common Stock directly beneficially owned by JANA Master and
the managed account. As the managing partner of JANA Partners, Mr. Rosenstein
may be deemed to be an indirect beneficial owner of such shares.
The SAC Parties
SAC Advisors is a Delaware limited liability company principally engaged in
the business of serving as investment manager to private investment funds,
including SAC Associates. SAC Associates is a private investment fund that is an
Anguillan limited liability company. Steven A. Cohen is a principal of SAC
Advisors. David L. Older is an employee of CR Intrinsic Investors, LLC, an
affiliate of SAC Advisors, and Drew E. Gillanders is an employee of SAC
Advisors.
SAC Associates is the direct beneficial owner of 29,000,000 shares of
Common Stock, which represents approximately 0.63% of outstanding shares of
Common Stock as of the date hereof. SAC Advisors, as investment manager to SAC
Associates, may be deemed to be the indirect beneficial owner of such shares.
Mr. Cohen, through his control of SAC Advisors, may also be deemed to be an
indirect beneficial owner of such shares.
In addition, the Icahn Parties, FMA, the JANA Parties, the SAC Parties and
certain of their respective affiliates may each be deemed to be a member of a
"group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), which group beneficially owns 142,388,770 shares
(including shares underlying call options) of Common Stock, representing
approximately 3.11% of outstanding shares of Common Stock as of the date hereof.
However, neither the fact of this filing nor anything contained herein shall be
deemed to be an admission by any of such parties that it is the beneficial owner
of any shares of Common Stock beneficially owned by any of the other parties,
except as otherwise disclosed herein.
EXHIBIT 2
FOR IMMEDIATE RELEASE
ICAHN ISSUES OPEN LETTER TO TIME WARNER'S BOARD OF DIRECTORS
New York, New York, December 19, 2005
Contact: Susan Gordon (212) 702-4309
New York, New York -- December 19, 2005 -- Carl Icahn today announced that he
has written an open letter to the board of directors of Time Warner Inc. (NYSE:
TWX). The text of the letter appears below.
To the Board of Directors of Time Warner:
Like all shareholders, I am not opposed to Time Warner entering into an AOL
transaction that creates long-term value. However, I am deeply concerned that
the Time Warner Board may be on the verge of making a disastrous decision
concerning an agreement with Google if this agreement would make it more
difficult in any way or effectively preclude a merger or other type of
transaction with companies such as IAC/InterActive, eBay, Yahoo!, or Microsoft
etc. etc...I believe there are and will be major opportunities to enhance Time
Warner's value in future combinations. However these transactions might not be
achievable if Time Warner enters into long-term arrangements that preclude
future flexibility such as an agreement regarding search functionality. I also
question whether Google is the best partner for unlocking the value of the AOL
asset. Indeed, a recent Goldman Sachs report concludes, "In contrast to the
conventional perspective, we believe that eBay, followed by InterActive Corp,
would provide greater incremental benefits to AOL's option value with fewer
conflicts of interest than Yahoo! while MSN and Google would provide the least
incremental benefits."
On the eve of a proxy contest, I believe it would be a blatant breach of
fiduciary duty to enter into an agreement with Google that would either
foreclose the possibility of entering into a transaction that would be more
beneficial for Time Warner shareholders or make such a transaction more
difficult to achieve. If, as is my belief other suitors interested in
transactions predicated on receipt of control of AOL have been foreclosed from
entering into negotiations, the Board's actions would be even more questionable.
The real risk for Time Warner shareholders is that a Google joint venture may be
short sighted in nature and may preclude any consideration of a broader set of
alternatives that would better maximize value and ensure a bright future for
AOL.
Once again, I am not opposed to the Board using its business judgment to enter
into a transaction with Google or another suitor so long as the transaction does
not destroy or impede Time Warner's flexibility to unlock shareholder value in
the near and long term. However, I want this letter to serve as notice to Time
Warner's directors that if they enter into a transaction that has that effect,
shareholders will seek to hold directors responsible.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY ICAHN PARTNERS LP, ICAHN PARTNERS
MASTER FUND LP, AMERICAN REAL ESTATE PARTNERS, L.P., FRANKLIN MUTUAL ADVISERS,
LLC, JANA PARTNERS LLC, JANA MASTER FUND, LTD., S.A.C. CAPITAL ADVISORS, LLC,
S.A.C. CAPITAL ASSOCIATES, LLC, AND CERTAIN OF THEIR RESPECTIVE AFFILIATES FROM
THE STOCKHOLDERS OF TIME WARNER INC. FOR USE AT ITS ANNUAL MEETING WHEN THEY
BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING
INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. WHEN
COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO
STOCKHOLDERS OF TIME WARNER INC. AND WILL BE AVAILABLE AT NO CHARGE AT THE
SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV. INFORMATION
RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION IS CONTAINED IN EXHIBIT
1 TO THE SCHEDULE 14A FILED WITH THE SECURITIES AND EXCHANGE COMMISSION BY ICAHN
PARTNERS LP ON DECEMBER 19, 2005. INFORMATION INDICATED HEREIN AS HAVING BEEN
OBTAINED FROM THIRD PARTIES IS USED WITHOUT ANY EXPRESS CONSENT OF SUCH THIRD
PARTIES AND SHOULD NOT BE VIEWED AS INDICATING THE SUPPORT OF SUCH PERSONS FOR
THE VIEWS EXPRESSED HEREIN.