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:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to 240.14a-12
OSHKOSH CORPORATION
(Name of Registrant as Specified In Its Charter)
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.
CARL C. ICAHN
A.B. KRONGARD
VINCENT J. INTRIERI
SAMUEL MERKSAMER
JOSE MARIA ALAPONT
DANIEL A. NINIVAGGI
MARC F. GUSTAFSON
(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:
[PRELIMINARY PROXY MATERIALS, SUBJECT TO COMPLETION]
2012 ANNUAL MEETING OF SHAREHOLDERS
OF
OSHKOSH CORPORATION
___________________
PROXY STATEMENT
DATED _________________
OF
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.
CARL C. ICAHN
A.B. KRONGARD
VINCENT J. INTRIERI
SAMUEL MERKSAMER
JOSE MARIA ALAPONT
DANIEL A. NINIVAGGI
MARC F. GUSTAFSON
__________________
To Our Fellow Oshkosh Shareholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to Shareholders ("Shareholders") of Oshkosh Corporation, 2307 Oregon
Street, P.O. Box 2566, Oshkosh, Wisconsin 54903 ("Oshkosh," the "Corporation" or
the "Company") in connection with the solicitation of proxies by Carl C. Icahn
and the Participants (as hereinafter defined), to be used at the 2012 Annual
Meeting (the "Annual Meeting") of Shareholders of Oshkosh which is scheduled to
be held at [ ], on [ ], at 10:00 a.m. (Central Standard Time), and at any
adjournments, postponements or continuations thereof. This Proxy Statement and
the GOLD proxy card are first being furnished to Shareholders on or about [ ].
At the Annual Meeting, the Participants will seek to elect to the Board of
Directors ("Board") of Oshkosh the following persons (each a "Nominee" and
collectively, the "Nominees"):
A.B. KRONGARD
VINCENT J. INTRIERI
SAMUEL MERKSAMER
JOSE MARIA ALAPONT
DANIEL A. NINIVAGGI
MARC F. GUSTAFSON
The Icahn Parties (as hereinafter defined) believe that the Nominees have
impressive qualifications and that their experience would be extremely
beneficial to Oshkosh and, therefore, its shareholders. Mr. Krongard has an
impressive background as a leader in both the private and public sectors, having
served as Chairman and Chief Executive Officer of Alex. Brown Incorporated, the
nation's oldest investment banking firm, and as Executive Director of the
Central Intelligence Agency. Mr. Intrieri has significant experience as a
director of various companies which enables him to understand the complex
business and financial issues that a company may face. Mr. Merksamer has a
strong record as a financial analyst and has served on a number of public and
private boards, which has provided him with a broad understanding of the
operational, financial and strategic issues facing public and private companies.
Mr. Alapont is a highly accomplished executive with more than 30 years of global
leadership experience at both vehicle manufacturers and suppliers, with business
and operations responsibilities in the Europe, Middle East and Africa, Asia
Pacific, and Americas regions. Mr. Ninivaggi has a strong background in
operations and management having served in various executive roles and having
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served on a number of public and private boards, including Motorola Mobility and
CIT Group. Mr. Gustafson has a long and successful career in the transportation
industry, particularly the heavy truck industry, having served as an executive
officer of various companies in that industry. The Icahn Parties believes that
these individuals' knowledge of operations, investments, corporate finance and
law will significantly improve the expertise and leadership of the Board.
Each of our Nominees has consented to being named in this Proxy Statement,
including as a nominee, and to serve as a director of the Corporation if so
elected.
Under the proxy rules we may only solicit proxies for our Nominees, which
would result in limiting the ability of Shareholders that would like to vote for
our Nominees to exercise their voting rights to vote for up to a full complement
of thirteen directors. Alternatively, we may solicit proxies in support of our
Nominees and also seek authority to vote for all of the Oshkosh nominees other
than those Oshkosh nominees we specify. This would enable a Shareholder who
desires to vote for up to a full complement of thirteen director nominees to use
the GOLD proxy card to vote for our Nominees as well as the Oshkosh nominees for
whom we are seeking authority to vote other than those nominees as to which the
Shareholder specifically withholds our authority to vote for. We have determined
to nominate a slate of six Nominees, A.B. Krongard, Vincent J. Intrieri, Samuel
Merksamer, Jose Maria Alapont, Daniel A. Ninivaggi and Marc F. Gustafson and are
seeking authority to vote for all of the Oshkosh nominees other than [ ]. As a
result, should a Shareholder so authorize us, on the GOLD proxy card, we would
cast votes for our six Nominees and seven Oshkosh nominees. None of the Oshkosh
nominees for whom we seek authority to vote have agreed to serve with any of our
Nominees, if elected.
THE PARTICIPANTS URGE YOU TO VOTE THE GOLD PROXY CARD FOR A.B. KRONGARD,
VINCENT J. INTRIERI, SAMUEL MERKSAMER, JOSE MARIA ALAPONT, DANIEL A. NINIVAGGI
AND MARC F. GUSTAFSON AS DIRECTORS.
The Nominees and each of the other Participants have no interest in Oshkosh
other than through the beneficial ownership (if any) of shares of Common Stock,
par value $0.01 per share, of Oshkosh (the "Common Stock") or other securities
(if any) of Oshkosh, except as disclosed herein, including the Annexes hereto,
and in the case of each of Messrs. Krongard, Alapont and Gustafson, pursuant to
an agreement in which certain affiliates of Carl C. Icahn have agreed to pay
each of Mr. Krongard and Mr. Gustafson $25,000 and to indemnify each of Messrs.
Krongard, Alapont and Gustafson with respect to certain costs incurred by each
such Nominee in connection with the proxy contest relating to the Annual Meeting
(the "Nominee Agreement") and (i) in the case of each of Mr. Intrieri and Mr.
Alapont, through his investment in Icahn Partners LP and (ii) in the case of Mr.
Ninivaggi, through certain options to purchase depositary units of Icahn
Enterprises L.P.
A.B. KRONGARD, VINCENT J. INTRIERI, SAMUEL MERKSAMER, JOSE MARIA ALAPONT,
DANIEL A. NINIVAGGI AND MARC F. GUSTAFSON ARE COMMITTED TO ACTING IN THE BEST
INTEREST OF ALL SHAREHOLDERS OF OSHKOSH. THE PARTICIPANTS URGE YOU TO VOTE YOUR
GOLD PROXY CARD FOR A.B. KRONGARD, VINCENT J. INTRIERI, SAMUEL MERKSAMER, JOSE
MARIA ALAPONT, DANIEL A. NINIVAGGI AND MARC F. GUSTAFSON.
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IMPORTANT
According to Oshkosh's Proxy Statement, the By-laws and applicable law, the
election of the Nominees requires the affirmative vote of a plurality of the
votes cast by the holders of Oshkosh's Common Stock at a meeting at which a
quorum is present in person or represented by proxy. As a result, your vote is
extremely important. We urge you to mark, sign, date, and return the enclosed
GOLD proxy card to vote FOR the election of each Nominee.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY OSHKOSH. IF YOU HAVE
ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED GOLD
PROXY CARD IN THE ENCLOSED POSTAGE-PAID ENVELOPE, EXECUTING A VOTE VIA INTERNET
OR TELEPHONE, OR BY VOTING IN PERSON AT THE ANNUAL MEETING. SEE "VOTING
PROCEDURES" AND "PROXY PROCEDURES" BELOW.
If you attend the Annual Meeting and you beneficially own shares of Common
Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT be sufficient to revoke your prior given proxy card. You must have
written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in
this Proxy Statement for assistance or if you have any questions.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 659-5550
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/OSK.
Only holders of record of Oshkosh's Common Stock as of the close of
business on [ ] (the "Record Date") are entitled to notice of, and to attend and
to vote at, the Annual Meeting and any adjournments or postponements thereof.
According to the proxy statement of Oshkosh filed with the Securities and
Exchange Commission ("Oshkosh's Proxy Statement") for the Annual Meeting, as of
the Record Date, there were outstanding [ ] shares of Common Stock. Shareholders
of record at the close of business on the Record Date will be entitled to one
vote at the Annual Meeting for each share of Common Stock of Oshkosh held on the
Record Date.
As of the Record Date, the Participants and their affiliates beneficially
owned an aggregate of [ ] shares of Common Stock, representing approximately [ ]
of the outstanding shares of Common Stock. The Participants and their affiliates
intend to vote such shares of Common Stock FOR the election of the Nominees.
VOTE FOR THE NOMINEES BY USING THE ENCLOSED GOLD PROXY. PLEASE VOTE TODAY -
BY TELEPHONE, BY INTERNET, OR BY MARKING, SIGNING, DATING AND RETURNING THE GOLD
PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are A.B. Krongard, Vincent J. Intrieri,
Samuel Merksamer, Jose Maria Alapont, Daniel A. Ninivaggi and Marc F.
Gustafson), the participants in the solicitation of proxies (the "Participants")
from Shareholders of Oshkosh include the following: Carl C. Icahn, a citizen of
the United States, High River Limited Partnership, a Delaware limited
partnership ("HighRiver"), Hopper Investments LLC, a Delaware limited liability
company ("Hopper"), Barberry Corp., a Delaware corporation ("Barberry"), Icahn
Partners LP, a Delaware limited partnership ("Icahn Partners"), Icahn Partners
Master Fund LP, a Cayman Islands limited partnership ("Icahn Master"), Icahn
Partners Master Fund II L.P., a Cayman Islands limited partnership ("Icahn
Master II"), Icahn Partners Master Fund III L.P., a Cayman Islands limited
partnership ("Icahn Master III"), Beckton Corp., a Delaware corporation
("Beckton"), Icahn Enterprises G.P. Inc., a Delaware corporation ("Icahn
Enterprises GP"), Icahn Enterprises Holdings L.P., a Delaware limited
partnership ("Icahn Enterprises Holdings"), IPH GP LLC, a Delaware limited
liability company ("IPH"), Icahn Capital LP, a Delaware limited partnership
("IcahnCapital"), Icahn Onshore LP, a Delaware limited partnership ("Icahn
Onshore") and Icahn Offshore LP, a Delaware limited partnership ("Icahn
Offshore").
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High
River (collectively, the "Icahn Parties"), are entities controlled by Mr. Carl
C. Icahn. Each of Vincent J. Intrieri, Samuel Merksamer and Daniel A. Ninivaggi
is employed by entities affiliated with Carl Icahn who will participate in
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soliciting proxies from Oshkosh's Shareholders. Mr. Jose Maria Alapont is the
president, chief executive officer and a director of Federal-Mogul Corporation,
a NASDAQ listed auto parts supplier ("Federal-Mogul"). Icahn Enterprises L.P.
("Icahn Enterprises") is the owner of approximately 77% of the outstanding
shares of common stock of Federal Mogul. Carl C. Icahn is the indirect owner of
the general partner of Icahn Enterprises and the indirect holder of
approximately 92.7% of the outstanding depositary units representing limited
partnership interests in Icahn Enterprises. Carl C. Icahn is also the chairman
of the board of directors of Federal Mogul. Except as described herein, none of
Messrs. Intrieri, Merksamer, Ninivaggi or Alapont beneficially owns any interest
in securities of Oshkosh and none of Messrs. Intrieri, Merksamer, Ninivaggi or
Alapont will receive any special compensation in connection with such
solicitation of proxies from Oshkosh's Shareholders.
Annex A attached hereto sets forth, as to the Nominees and the other
Participants, all transactions in securities of Oshkosh effected during the past
two years and their beneficial ownership of securities of Oshkosh.
With respect to each Participant (including the Nominees), except as set
forth herein or in any of the Annexes attached hereto, (i) such Participant is
not, nor was within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of Oshkosh,
including, but not limited to, joint ventures, loan or option arrangements, puts
or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies; and (ii) neither such
Participant nor any of such Participant's associates have any arrangement or
understanding with any person with respect to (A) any future employment by
Oshkosh or its affiliates or (B) any future transactions to which Oshkosh or any
of its affiliates will or may be a party.
PROPOSAL 1 -- ELECTION OF DIRECTORS
Article II, Section 2.11 of Oshkosh's By-laws provides that nominations of
persons for election to the Board of Directors of the Corporation may be made at
an Annual Meeting " by any shareholder of the corporation who (1) is a
shareholder of record at the time of giving of notice provided for in this
Section 2.11, (2) is entitled to vote with respect to such nomination or other
business at the meeting under the articles of incorporation and (3) complies
with the notice procedures set forth in this Section 2.11." On November 4, 2011,
High River, a record holder of Common Stock, delivered timely notice in
accordance with the foregoing, notifying Oshkosh that High River intends to
nominate and will seek to elect at the Annual Meeting - A.B. Krongard, Vincent
J. Intrieri, Samuel Merksamer, Jose Maria Alapont, Daniel A. Ninivaggi and Marc
F. Gustafson as members of the board of directors of Oshkosh. Each Nominee, if
elected, would serve a one-year term and hold office until the 2013 annual
meeting of Shareholders and until a successor has been duly elected. Background
information about each of the Nominees is set forth below and the Annexes
attached hereto.
According to Oshkosh's Proxy Statement, the Board of Oshkosh intends to
nominate thirteen candidates for election as directors at the Annual Meeting.
This Proxy Statement is soliciting proxies to elect A.B. Krongard, Vincent J.
Intrieri, Samuel Merksamer, Jose Maria Alapont, Daniel A. Ninivaggi and Marc F.
Gustafson, and to enable Shareholders to vote for the Oshkosh nominees other
than [ ]. Therefore, should a Shareholder so authorize us, we will cast votes
for our six Nominees and seven Oshkosh nominees. None of such Oshkosh nominees
for whom we seek authority to vote have agreed to serve with any of our
Nominees, if elected.
If elected, the Nominees will be a minority of the directors and will not
alone be able to adopt resolutions. However, the Nominees expect to be able to
actively engage other Board members in full discussion of the issues facing the
Company and resolve them together. By utilizing their respective experiences and
working constructively with Board members, the Nominees believe they can effect
positive change at the Company.
Mr. Icahn has an interest in the election of directors at the Annual
Meeting indirectly through the beneficial ownership of securities, as further
described in Annex A. Messrs. Krongard, Alapont and Gustafson are each party to
a Nominee Agreement, substantially in the form attached hereto as Annex B,
pursuant to which Icahn Capital has agreed to pay certain fees to each of
Messrs. Krongard and Gustafson and to indemnify each of Messrs. Krongard,
Alapont and Gustafson with respect to certain costs incurred by each such
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Nominee in connection with the proxy contest relating to the Annual Meeting.
Except as disclosed in this Proxy Statement, including the Annexes attached
hereto and as provided in the Nominee Agreement (which, among other things,
provides for a payment to each of Messrs. Krongard and Gustafson of $25,000),
none of the Nominees will receive any compensation from any of the Participants
or any of their affiliates in connection with this proxy solicitation. Each of
Messrs. Krongard, Alapont and Gustafson has an interest in the election of
directors at the Annual Meeting pursuant to the Nominee Agreement. Messrs.
Intrieri and Alapont has an interest in the election of directors at the Annual
Meeting indirectly through their respective ownership interest in Icahn Partners
and Mr. Ninivaggi has an interest in the election of directors at the Annual
Meeting indirectly through his ownership of certain options to purchase
depositary units of Icahn Enterprises L.P.
The Nominees would not be barred from being considered independent under
the independence requirements of the New York Stock Exchange and the
independence standards applicable to Oshkosh under paragraph (a)(1) of Item 407
of Regulation S-K under the Securities Exchange Act of 1934, as amended.
MR. A.B. KRONGARD, age 75
Mr. Krongard's principal occupation is serving as an outside director on
the Global Board of DLA Piper. DLA Piper is one of the world's largest law firms
with over 2,800 lawyers in 49 offices in 18 countries. In addition, he is the
Lead Director of Under Armour Inc. where he chairs the Audit Committee. He is
also a member of the Board of Iridium Communications Inc. and In-Q-Tel. He
serves as Vice Chairman of the Johns Hopkins Health System, Chairman of The
Baltimore Police Foundation and member of the audit committee of Apollo Global
Management, LLC. Mr. Krongard retired from the Central Intelligence Agency on
November 30, 2004 where he had been Executive Director since March, 2001. Prior
to this appointment, Mr. Krongard served as Counselor to the Director of Central
Intelligence from February 2, 1998, after a 29-year career in investment
banking. Mr. Krongard had previously worked in various capacities at Alex. Brown
Incorporated, the nation's oldest investment banking firm. In 1991, he was
elected as Chief Executive Officer and assumed the additional duties of Chairman
of the Board in 1994. Upon the merger of Alex Brown with Bankers Trust
Corporation in September 1997, Mr. Krongard became Vice Chairman of the Board of
Bankers Trust and served in such capacity until joining the Central Intelligence
Agency. Mr. Krongard served as Chairman of the Securities Industry Association
in 1996 and was named the Outstanding Executive in the financial services
industry in 1995 and 1996 by Financial World. In 1997, he received the Golden
Plate Award from the American Academy of Achievement. Mr. Krongard received an
A.B. Degree with honors from Princeton University in 1958 and a Juris Doctor
Degree with honors from the University of Maryland School of Law in 1975. Mr.
Krongard does not, and his associates do not, own, beneficially or of record,
any shares of capital stock of the Corporation. The business address of Mr.
Krongard is 1400 West Seminary Avenue, Lutherville, Maryland 21093.
Based upon Mr. Krongard's experience as a leader in both the private and
public sectors, having served as Chairman and Chief Executive Officer of Alex.
Brown Incorporated, the nation's oldest investment banking firm, and as
Executive Director of the Central Intelligence Agency, the Icahn Parties believe
that Mr. Krongard has the requisite set of skills to serve as a Board member of
Oshkosh.
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MR. VINCENT J. INTRIERI, age 56
Mr. Intrieri's principal occupation is serving as Senior Vice President of
Icahn Enterprises G.P. and Senior Managing Director of Icahn Capital L.P. Mr.
Intrieri served as a Senior Managing Director of Icahn Capital Management L.P.
from August 8, 2007 until December 31, 2007. From January 1, 2008 to September
30, 2011, Mr. Intrieri served as a Senior Managing Director of Icahn Capital
L.P., the entity through which Carl C. Icahn manages investment funds and since
October 1, 2011, Mr. Intrieri has served as Senior Vice President of Icahn
Enterprises G.P. and Senior Managing Director of Icahn Capital L.P. Since
November 2004, Mr. Intrieri has been a Senior Managing Director of Icahn Onshore
LP, the general partner of Icahn Partners, and Icahn Offshore, the general
partner of Icahn Master, Icahn Master II and Icahn Master III. Mr. Intrieri has
served as a director of Icahn Enterprises G.P. Inc., the general partner of
Icahn Enterprises L.P. since July 2006. Since November 2005, Mr. Intrieri has
been a director of WestPoint International, Inc., a manufacturer and distributor
of home fashion consumer products. Mr. Intrieri also serves on the board of
directors of FederalMogul Corporation, a supplier of automotive products. Since
December 2007, Mr. Intrieri has been chairman of the board and a director of PSC
Metals, Inc. and, since December 2006, he has been a director of National Energy
Group, Inc. Since January 1, 2005, Mr. Intrieri has been Senior Managing
Director of Icahn Associates Corp. and High River Limited Partnership, entities
primarily engaged in the business of holding and investing in securities. From
April 2005 through September 2008, Mr. Intrieri served as the President and
Chief Executive Officer of Philip Services Corporation, an industrial services
company. Since August 2005, Mr. Intrieri has served as a director of American
Railcar Industries, Inc., a company that is primarily engaged in the business of
manufacturing covered hopper and tank railcars. From March 2005 to December
2005, Mr. Intrieri was a Senior Vice President, the Treasurer and the Secretary
of American Railcar Industries. Since April 2003, Mr. Intrieri has been chairman
of the board of directors and a director of Viskase Companies, Inc., a producer
of cellulosic and plastic casings used in preparing and packaging processed meat
products. Since March 2011, Mr. Intrieri has served as a director of Dynegy
Inc., a company primarily engaged in the production and sale of electric energy,
capacity and ancillary services. From November 2006 to November 2008, Mr.
Intrieri served on the board of directors of Lear Corporation, a global supplier
of automotive seating and electrical power management systems and components.
From August 2008 through September 2009, Mr. Intrieri was a director of WCI
Communities, Inc., a homebuilding company. Mr. Intrieri also serves on the board
of directors of XO Holdings, LLC, a telecommunications company. Since January 4,
2011, Mr. Intrieri has been a director of Motorola Solutions, Inc., a provider
of communication products and services. With respect to each company mentioned
above, Mr. Carl Icahn, directly or indirectly, either (i) controls such company
or (ii) has an interest in such company through the ownership of securities. Mr.
Intrieri is a certified public accountant. Except as described herein, Mr.
Intrieri does not, and his associates do not, own, beneficially or of record,
any shares of capital stock of the Corporation. Mr. Intrieri's business address
is c/o Icahn Capital LP, 767 Fifth Avenue, 47th Floor, New York, New York 10153.
Based upon Mr. Intrieri's significant experience as a director of various
companies which enables him to understand the complex business and financial
issues that a company may face, the Icahn Parties believe that Mr. Intrieri has
the requisite set of skills to serve as a Board member of Oshkosh.
MR. SAMUEL MERKSAMER, age 31
Mr. Merksamer's principal occupation is serving as an investment analyst at
Icahn Capital LP, a subsidiary of Icahn Enterprises L.P., since May 2008. In
that capacity, Mr. Merksamer is responsible for identifying, analyzing and
monitoring investment opportunities and portfolio companies for Icahn Capital.
Mr. Merksamer also serves as a director of Dynegy Inc., Viskase Companies, Inc.,
American Railcar Industries Inc., PSC Metals Inc. and Federal-Mogul Corporation.
Viskase Companies, PSC Metals, American Railcar Industries Inc. and
Federal-Mogul are each, directly or indirectly, controlled by Carl C. Icahn. Mr.
Icahn also has an interest in Dynegy Inc. through the ownership of securities.
From 2003 until 2008, Mr. Merksamer was an analyst at Airlie Opportunity Capital
Management, a hedge fund management company, where he focused on high yield and
distressed investments. Mr. Merksamer received an A.B. in Economics from Cornell
University in 2002. Mr. Merksamer does not, and his associates do not, own,
beneficially or of record, any shares of capital stock of the Corporation. Mr.
Merksamer's business address is c/o Icahn Capital LP, 767 Fifth Avenue, 47th
Floor, New York, New York 10153.
Based upon Mr. Merksamer's strong record as a financial analyst and his
service on a number of public and private boards, which has provided him with a
broad understanding of the operational, financial and strategic issues facing
public and private companies, the Icahn Parties believe that Mr. Merksamer has
the requisite set of skills to serve as a Board member of Oshkosh.
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MR. JOSE MARIA ALAPONT, age 61
Mr. Alapont's principal occupation is serving as the president, chief
executive officer and a director of FederalMogul Corporation, a supplier of
automotive products, since March 2005. Mr. Alapont served as chairman of the
board of directors of FederalMogul from 2005 to 2007. He has more than 35 years
of global leadership experience in both vehicle manufacturers and suppliers with
business and operations responsibilities in the Americas, Asia Pacific, Europe,
Middle East and Africa regions. Mr. Alapont, between 2003 and 2005, was chief
executive officer and a member of the board of directors of IVECO, the
commercial trucks and vans, public and commercial buses, recreational, special
off-road, firefighting, defense and military vehicles company of the Fiat Group.
He also became a member of the Fiat Group Executive Committee, the company's
strategy and policymaking group. Mr. Alapont served in various key executive
positions at Delphi Corporation, a global automotive supplier from 1997 to 2003.
He began at Delphi as executive director of international operations. In 1999,
Mr. Alapont was named president of Delphi Europe, Middle East and Africa and a
vice president of Delphi Corporation and also became a member of the Delphi
Strategy Board, the company's top policymaking group. In 2003, Mr. Alapont was
named president of Delphi's international operations, and vice president of
sales and marketing.
Mr. Alapont, from 1990 to 1997, served in several executive roles and was a
member of the Strategy Board at Valeo, a global automotive supplier. He started
at Valeo as managing director of engine cooling systems, Spain. In 1991, Mr.
Alapont was named executive director of Valeo's worldwide heavy-duty engine
cooling operations. In 1992, he became group vice president of Valeo's worldwide
clutch and transmission components division. He was named group vice president
of the company's worldwide lighting systems division in 1996. Mr. Alapont began
and developed his automotive career from 1974 to 1989 at Ford Motor Company, and
over the course of 15 years, starting at Ford of Spain, progressed through
different management and executive positions in quality, testing and validation,
manufacturing and purchasing positions at Ford of Europe. Mr. Alapont earned
degrees in industrial engineering from the Technical School of Valencia in Spain
and in philology from the University of Valencia in Spain. Except as described
herein, Mr. Alapont does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. Mr. Alapont's business
address is c/o FederalMogul Corporation, 26555 Northwestern Highway, Southfield,
Michigan 48033.
Based upon Mr. Alapont's experience as a highly accomplished executive with
more than 30 years of global leadership experience at both vehicle manufacturers
and suppliers, the Icahn Parties believe that Mr. Alapont has the requisite set
of skills to serve as a Board member of Oshkosh.
MR. DANIEL A. NINIVAGGI, age 47
Mr. Ninivaggi's principal occupation is serving as the President of Icahn
Enterprises L.P. and its general partner, Icahn Enterprises G.P. Inc., since
April 5, 2010, and as its Principal Executive Officer, or chief executive, since
August 4, 2010. From 2003 until July 2009, Mr. Ninivaggi served in a variety of
executive positions at Lear Corporation, a global supplier of automotive seating
and electrical power management systems and components, including as General
Counsel from 2003 through 2007, as Senior Vice President from 2004 until 2006,
and most recently as Executive Vice President and Chief Administrative Officer
from 2006 to 2009. Lear Corporation filed for bankruptcy in July 2009. Prior to
joining Lear Corporation, from 1998 to 2003, Mr. Ninivaggi was a partner with
the law firm of Winston & Strawn LLP, specializing in corporate finance, mergers
and acquisitions, and corporate governance. Mr. Ninivaggi also served as Of
Counsel to Winston & Strawn LLP from July 2009 to March 2010. From December 2009
to May 2011, Mr. Ninivaggi has also served as a director of CIT Group Inc., a
bank holding company. Mr. Ninivaggi also serves as a director of FederalMogul
Corporation, a supplier of automotive products, and XO Holdings, LLC, a
telecommunications company. Since December 2010, Mr. Ninivaggi has served as a
director of Motorola Mobility Holdings, Inc., a provider of mobile communication
devices, video and data delivery solutions. Since January 6, 2011, Mr. Ninivaggi
has also served as the Interim President and Interim Chief Executive Officer and
a director of Tropicana Entertainment Inc., a company that is primarily engaged
in the business of owning and operating casinos and resorts. With respect to
Icahn Enterprises L.P., Icahn Enterprises G.P. Inc., FederalMogul Corporation,
XO Holdings, LLC, Motorola Mobility Holdings, Inc. and Tropicana Entertainment
Inc., Mr. Carl Icahn, directly or indirectly, either (i) controls such company
or (ii) has an interest in such company through the ownership of securities.
Except as described herein, Mr. Ninivaggi does not, and his associates do not,
own, beneficially or of record, any shares of capital stock of the Corporation.
Mr. Ninivaggi's business address is c/o Icahn Capital LP, 767 Fifth Avenue, 47th
Floor, New York, New York 10153.
7
Based upon Mr. Ninivaggi's strong background in operations and management
having served in various executive roles and having served on a number of public
and private boards, the Icahn Parties believe that Mr. Ninivaggi has the
requisite set of skills to serve as a Board member of Oshkosh.
MR. MARC F. GUSTAFSON, age 59
Mr. Gustafson's principal occupation is serving as the principal of
Gustafson Consulting Group which he founded in 2008. Gustafson Consulting Group
specializes in management consulting for companies in the transportation and
related industries. Mr. Gustafson also provides litigation support and expert
testimony in cases involving the transportation industry. Mr. Gustafson's
transportation industry expertise includes the heavy truck industry, which began
in 1975, as the owner of Mack dealerships in Florida. He owned and operated the
dealerships for seventeen years. In 1991, he joined Mack Trucks, Inc. as its
Executive Vice President of Sales and Marketing. In that position, he was
responsible for all North and Latin American commercial operations for Mack. In
1996, he joined Volvo Trucks North America as its President and Chief Executive
Officer. During his tenure at Volvo, he was appointed Chairman of Volvo's global
truck marketing and business development committee, and was involved in Volvo's
strategic efforts to acquire other companies in the heavy truck industry,
including his former employer Mack Trucks, Inc., as well as Arrow Truck Sales,
Inc. and Petro Truck Stops. In 2003, he ran Freightliner Corporation's American
LaFrance subsidiary, which builds fire emergency vehicles. Then in 2004, he
joined Federal Signal Corporation to run its fire emergency vehicle
subsidiaries, E-One and Bronto Skylift. He left Federal Signal in 2007 and, a
year later, founded Gustafson Consulting Group. Mr. Gustafson is also a former
board member of the American Trucking Association, Volvo Cars, NA and Habitat
for Humanity, Charleston. He graduated from Berry College with a BS degree in
1974. Mr. Gustafson does not, and his associates do not, own, beneficially or of
record, any shares of capital stock of the Corporation. The business address of
Mr. Gustafson is 754 Bear Left, Asheville, NC 28805.
Based upon Mr. Gustafson's long and successful career in the transportation
industry, particularly the heavy truck industry, having served as an executive
officer of various companies in that industry, the Icahn Parties believe that
Mr. Gustafson has the requisite set of skills to serve as a Board member of
Oshkosh.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF A.B. KRONGARD, VINCENT J.
INTRIERI, SAMUEL MERKSAMER, JOSE MARIA ALAPONT, DANIEL A. NINIVAGGI AND MARC F.
GUSTAFSON BY MARKING, SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY CARD
IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT OR BY
USING THE GOLD PROXY CARD TO VOTE BY TELEPHONE OR INTERNET. IF YOU HAVE SIGNED
THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A
DIRECTION TO VOTE ALL THE SHARES OF COMMON STOCK REPRESENTED BY THE GOLD PROXY
CARD FOR THE ELECTION OF A.B. KRONGARD, VINCENT J. INTRIERI, SAMUEL MERKSAMER,
JOSE MARIA ALAPONT, DANIEL A. NINIVAGGI AND MARC F. GUSTAFSON AND THE OSHKOSH
NOMINEES OTHER THAN [ ], [ ], [ ], [ ], [ ] and [ ].
8
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Oshkosh's Proxy Statement, Oshkosh is soliciting proxies with
respect to four other proposals. Please refer to Oshkosh's Proxy Statement for
a detailed discussion of these proposals, including various arguments in favor
of and against such proposals. These proposals are outlined below. IF YOU HAVE
SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE
GIVEN A DIRECTION TO VOTE ALL OF THE SHARES OF COMMON STOCK REPRESENTED BY YOUR
GOLD PROXY CARD [ ] PROPOSAL 2 LISTED BELOW, [ ] PROPOSAL 3 LISTED BELOW, [ ]
PROPOSAL 4 LISTED BELOW, AND [ ] PROPOSAL 5 LISTED BELOW.
PROPOSAL 2 -- RATIFICATION OF THE APPOINTMENT OF DELOITTE & TOUCHE LLP, AN
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM, AS OSHKOSH'S
INDEPENDENT AUDITORS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2012
According to Oshkosh's Proxy Statement, the Company will also solicit
proxies with respect to a proposal for Shareholders to ratify the appointment of
Deloitte & Touche LLP, an independent registered public accounting firm, as
Oshkosh's independent auditors for the fiscal year ending September 30, 2012.
Please refer to Oshkosh's Proxy Statement for a discussion of Proposal 2. The
Participants intend to vote, and recommend that you vote, [ ] Proposal 2.
PROPOSAL 3 -- TO CONSIDER AN ADVISORY VOTE ON THE COMPENSATION OF OSHKOSH'S
NAMED EXECUTIVE OFFICERS
According to Oshkosh's Proxy Statement, the Company will also solicit
proxies with respect to a proposal for the Shareholders to approve, on an
advisory basis, the compensation of Oshkosh's Named Executive Officers, as
disclosed pursuant to Item 402 of Regulation SK promulgated under the Securities
Exchange Act of 1934, as amended, including in the Compensation Discussion and
Analysis section and compensation tables and narrative discussion contained in
Oshkosh's Proxy Statement. Please refer to Oshkosh's Proxy Statement for a
discussion of Proposal 3. The Participants intend to vote, and recommend that
you vote, [ ] Proposal 3.
PROPOSAL 4 -- APPROVAL OF AN AMENDMENT AND RESTATEMENT OF OSHKOSH'S 2009
INCENTIVE STOCK AND AWARDS PLAN
According to Oshkosh's Proxy Statement, the Company will also solicit
proxies with respect to a proposal for Shareholders to approve an amendment and
restatement of Oshkosh's 2009 Incentive Stock and Awards Plan. Please refer to
Oshkosh's Proxy Statement for a discussion of Proposal 4. The Participants
intend to vote, and recommend that you vote, [ ] Proposal 4.
PROPOSAL 5 -- SHAREHOLDER PROPOSAL
According to Oshkosh's Proxy Statement, the Company will submit to the
Shareholders for their approval a proposal submitted by an Oshkosh shareholder
that the Shareholders approve a resolution requesting that the Oshkosh Board
undertake such steps as may be necessary to permit written consent by
shareholders entitled to cast the minimum number of votes that would be
necessary to authorize the action at a meeting at which all shareholders
entitled to vote thereon were present and voting (to the fullest extent
permitted by law). Please refer to Oshkosh's Proxy Statement for a discussion of
Proposal 5. The Participants intend to vote, and recommend that you vote, [ ]
Proposal 5.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be
presented at the Annual Meeting. If any other matters should properly come
before the Annual Meeting, it is intended that the persons named on the enclosed
GOLD proxy card will vote that proxy on such other matters in accordance with
their judgment.
VOTING PROCEDURES
According to Oshkosh's Proxy Statement, the By-laws and applicable law,
holders of shares of Common Stock, at the close of business on the Record Date
are entitled to notice of, and to vote at, the Annual Meeting. Each share of
Common Stock outstanding on the Record Date is entitled to one vote on each
matter presented at the Annual Meeting.
9
According to Oshkosh's Proxy Statement, the By-laws and applicable law, in
a contested election of directors, plurality voting applies in the election of
directors. According to Oshkosh's Proxy Statement, the Chairman of the Oshkosh
Board has determined that the election at the Annual Meeting is a contested
election because nomination of the Nominees by the Icahn Parties would result in
more persons nominated to serve as a director than Board seats available.
Accordingly, pursuant to Oshkosh's ByLaws, plurality voting will apply at the
Annual Meeting. Plurality voting means that the individuals who receive the
largest number of votes cast are elected as directors, up to the maximum number
of directors to be chosen at the Annual Meeting. Consequently, any shares of
Common Stock not voted (whether by abstention, broker nonvote or otherwise) have
no impact in the election of directors.
A quorum must be present, in person or by proxy, in order for the Company
to hold the Annual Meeting. A quorum is the presence by person or by proxy of a
majority of the shares of Common Stock issued and outstanding and entitled to
vote at the Annual Meeting. The shares of Common Stock represented by a proxy
marked "withhold" or "abstain" and broker non-votes (as described below) will be
considered present at the Annual Meeting for purposes of determining a quorum.
BROKER NON-VOTES
If you hold your shares of Common Stock through a bank, broker or other
nominee and do not provide voting instructions to the record holder of the
shares of Common Stock, your shares of Common Stock will not be voted on any
proposal on which your broker or nominee does not have discretionary authority
to vote. In this case, a "broker non-vote" occurs. Shares of Common Stock
constituting broker non-votes are not counted or deemed to be present or
represented for the purpose of determining whether Shareholders have approved a
matter, but they are counted as present for the purpose of determining a quorum
at the Annual Meeting.
The election of directors at the Annual Meeting is a "non-routine matter"
and brokers do not have discretionary authority to vote your shares of Common
Stock on "non-routine matters." Therefore, unless you provide specific voting
instructions to your broker, your broker will not have discretionary authority
to vote your shares of Common Stock for the election of directors at the Annual
Meeting and your shares of Common Stock will not be voted for the election of
directors. If your shares of Common Stock are held in street name, your broker
or nominee has enclosed a voting instruction card with this Proxy Statement. We
strongly encourage you to vote your shares of Common Stock by following the
instructions provided on the voting instruction card.
According to Oshkosh's Proxy Statement, the By-laws and applicable law, in
order for the Shareholders to approve Proposal 2 - RATIFICATION OF THE
APPOINTMENT OF DELOITTE & TOUCHE LLP, AN INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM, AS OSHKOSH'S INDEPENDENT AUDITORS FOR THE FISCAL YEAR ENDING
SEPTEMBER 30, 2012 - the votes cast "FOR" Proposal 2 must exceed the votes cast
"AGAINST" Proposal 2. Abstentions and broker nonvotes do not constitute a vote
"FOR" or "AGAINST" Proposal 2 and will be disregarded in the calculation of
"votes cast." Brokers are not entitled to vote on Proposal 2 in the absence of
voting instructions from the beneficial owner.
According to Oshkosh's Proxy Statement, the By-laws and applicable law, the
Shareholder vote on Proposal 3 - TO CONSIDER AN ADVISORY VOTE ON THE
COMPENSATION OF OSHKOSH'S NAMED EXECUTIVE OFFICERS - is advisory and will not be
binding on the Oshkosh Board. However, in order to be approved by the
Shareholders on an advisory basis, the votes cast "FOR" Proposal 3 must exceed
the votes cast "AGAINST" Proposal 3. Abstentions and broker nonvotes do not
constitute a vote "FOR" or "AGAINST" Proposal 3 and will be disregarded in the
calculation of "votes cast." Brokers are not entitled to vote on Proposal 3 in
the absence of voting instructions from the beneficial owner.
According to Oshkosh's Proxy Statement, the By-laws and applicable law, in
order for the Shareholders to approve Proposal 4 - APPROVAL OF AN AMENDMENT AND
RESTATEMENT OF OSHKOSH'S 2009 INCENTIVE STOCK AND AWARDS PLAN - the votes cast
"FOR" Proposal 4 must exceed the votes cast "AGAINST" Proposal 4, provided that
a majority of the outstanding shares of Common Stock are voted on Proposal 4.
Abstentions and broker nonvotes do not constitute a vote "FOR" or "AGAINST"
Proposal 4 and will be disregarded in the calculation of "votes cast." Brokers
are not entitled to vote on Proposal 4 in the absence of voting instructions
from the beneficial owner.
10
According to Oshkosh's Proxy Statement, the By-laws and applicable law, in
order for the Shareholders to approve Proposal 5 - SHAREHOLDER PROPOSAL - the
votes cast "FOR" Proposal 5 must exceed the votes cast "AGAINST" Proposal 5.
Abstentions and broker nonvotes do not constitute a vote "FOR" or "AGAINST"
Proposal 5 and will be disregarded in the calculation of "votes cast." Brokers
are not entitled to vote on Proposal 5 in the absence of voting instructions
from the beneficial owner. Proposal 5 must be properly presented at the Annual
Meeting to be voted upon.
As explained in the detailed instructions on your GOLD proxy card, there
are four ways you may vote. You may:
1. Sign, date and return the enclosed GOLD proxy card in the enclosed
postage-paid envelope. We recommend that you vote on the GOLD proxy
card even if you plan to attend the Annual Meeting;
2. Vote via the Internet by following the voting instructions on the
GOLD proxy card or the voting instructions provided by your broker,
bank or other holder of record.
3. Vote by telephone by following the voting instructions on the GOLD
proxy card or the instructions provided by your broker, bank or other
holder of record; or
4. Vote in person by attending the Annual Meeting. Written ballots will
be distributed to Shareholders who wish to vote in person at the
Annual Meeting. If you hold your shares of Common Stock through a
bank, broker or other custodian, you must obtain a legal proxy from
such custodian in order to vote in person at the meeting.
To submit a proxy with voting instructions by telephone please call the
telephone number listed on the GOLD proxy card. Proxies may also be submitted
over the Internet. Please refer to the GOLD proxy card for the website
information. In each case Shareholders will be required to provide the unique
control number which has been printed on each Shareholder's GOLD proxy card. In
addition to the instructions that appear on the GOLD proxy card, step-by-step
instructions will be provided by a recorded telephone message for those
Shareholders submitting proxies by telephone or at the designated website for
those Shareholders submitting proxies over the Internet. Shareholders submitting
their proxies with voting instructions by telephone or over the Internet will
receive confirmation on the telephone that their vote by telephone was
successfully submitted, and may provide an email address for confirmation that
their vote by Internet was successfully submitted.
Whether or not you are able to attend the Annual Meeting, you are urged to
complete the enclosed GOLD proxy and return it in the enclosed self-addressed,
postage-paid envelope. All valid proxies received prior to the meeting will be
voted. If you specify a choice with respect to any item by marking the
appropriate box on the proxy, the shares of Common Stock will be voted in
accordance with that specification. IF NO SPECIFICATION IS MADE, THE SHARES OF
COMMON STOCK WILL BE VOTED (I) FOR A.B. KRONGARD FOR DIRECTOR; (II) FOR VINCENT
J. INTRIERI FOR DIRECTOR; (III) FOR SAMUEL MERKSAMER FOR DIRECTOR; (IV) FOR JOSE
MARIA ALAPONT FOR DIRECTOR; (V) FOR DANIEL A. NINIVAGGI FOR DIRECTOR; (VI) FOR
MARC F. GUSTAFSON FOR DIRECTOR; (VII) FOR THE PERSONS WHO HAVE BEEN NOMINATED BY
OSHKOSH TO SERVE AS DIRECTORS, OTHER THAN [ ], [ ], [ ], [ ], [ ] AND [ ];
(VIII) [ ] THE APPROVAL OF THE RATIFICATION OF THE APPOINTMENT OF DELOITTE &
TOUCHE LLP, AN INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM, AS OSHKOSH'S
INDEPENDENT AUDITORS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2012; (IX) [ ] THE
APPROVAL OF THE ADVISORY VOTE ON THE COMPENSATION OF OSHKOSH'S NAMED EXECUTIVE
OFFICERS; (X) [ ] THE APPROVAL OF AN AMENDMENT AND RESTATEMENT OF OSHKOSH'S 2009
INCENTIVE STOCK AND AWARDS PLAN; (XI) [] THE APPROVAL OF THE SHAREHOLDER
PROPOSAL REGARDING SHAREHOLDER ACTION BY WRITTEN CONSENT; AND (XII) IN THE PROXY
HOLDERS' DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL
MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 659-5550
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550
11
PROXY PROCEDURES
IN ORDER TO SUPPORT THE NOMINEES AND VOTE AS RECOMMENDED BY THE
PARTICIPANTS AT THE ANNUAL MEETING, PLEASE MARK, SIGN, DATE AND RETURN THE
ENCLOSED GOLD PROXY CARD IN THE ENCLOSED POSTAGE-PAID ENVELOPE OR USE THE GOLD
PROXY CARD TO VOTE BY TELEPHONE OR INTERNET.
The accompanying GOLD proxy card will be voted at the Annual Meeting in
accordance with your instructions on such card.
Only holders of record as of the close of business on the Record Date will
be entitled to vote. If you were a Shareholder of record on the Record Date, you
will retain your voting rights at the Annual Meeting even if you sell such
shares of Common Stock after the Record Date. Accordingly, it is important that
you vote the shares of Common Stock held by you on the Record Date, or grant a
proxy to vote such shares of Common Stock on the GOLD proxy card, even if you
sell such shares of Common Stock after the Record Date.
IF YOUR SHARES OF COMMON STOCK ARE HELD IN THE NAME OF A BROKERAGE FIRM,
BANK, BANK NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE
SUCH SHARES OF COMMON STOCK AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS.
ACCORDINGLY, IF YOU WISH TO SUPPORT THE NOMINEES AND VOTE AS RECOMMENDED BY THE
PARTICIPANTS AT THE ANNUAL MEETING PLEASE CONTACT THE PERSON RESPONSIBLE FOR
YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR BEHALF THE GOLD PROXY
CARD AS SOON AS POSSIBLE.
REVOCATION OF PROXIES
Any Shareholder of record may revoke or change his or her proxy
instructions at any time prior to the vote at the Annual Meeting by:
- submitting a properly executed, subsequently dated GOLD proxy card
that will revoke all prior proxy cards, including any white proxy
cards which you may have submitted to Oshkosh;
- submitting a properly executed, subsequently dated WHITE proxy card
that will revoke all prior proxy cards, including any gold proxy cards
which you may have submitted to Oshkosh;
- instructing the Icahn Parties by telephone or via the Internet as to
how you would like your shares of Common Stock voted (instructions are
on your GOLD proxy card);
- attending the Annual Meeting and withdrawing his or her proxy by
voting in person (although attendance at the Annual Meeting will not
in and of itself constitute revocation of a proxy); or
- delivering written notice of revocation either to the Icahn Parties
c/o D.F. King & Co., Inc., 48 Wall Street, New York, NY 10005, or the
Corporate Secretary of Oshkosh.
IF YOU PREVIOUSLY SIGNED AND RETURNED A WHITE PROXY CARD TO OSHKOSH, WE
URGE YOU TO REVOKE IT BY (1) MARKING, SIGNING, DATING AND RETURNING THE GOLD
PROXY CARD, (2) INSTRUCTING US BY TELEPHONE OR VIA THE INTERNET AS TO HOW YOU
WOULD LIKE YOUR SHARES OF COMMON STOCK VOTED WITH RESPECT TO THE GOLD PROXY
CARD, (3) ATTENDING THE ANNUAL MEETING AND VOTING IN PERSON OR (4) DELIVERING A
WRITTEN NOTICE OF REVOCATION TO THE ICAHN PARTIES OR TO THE CORPORATE SECRETARY
OF THE COMPANY.
If you attend the Annual Meeting and you beneficially own shares of Common
Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT be sufficient to revoke your prior given proxy card. You must have
written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in
this Proxy Statement for assistance or if you have any questions.
Although a revocation is effective if delivered to Oshkosh, the Icahn
Parties request that either the original or a copy of any revocation be mailed
to the Icahn Parties c/o D.F. King & Co., Inc., 48 Wall Street, New York, NY
10005, so that the Icahn Parties will be aware of all revocations.
12
COST AND METHOD OF SOLICITATION
Solicitation of proxies will be made by Messrs. Icahn, Krongard, Intrieri,
Merksamer, Alapont, Ninivaggi and Gustafson.
Icahn Capital has retained D.F. King & Co., Inc. ("D.F. King") to conduct
the solicitation, for which D.F. King is to receive a fee of up to [ ]. Icahn
Capital has agreed to indemnify D.F. King against certain liabilities and
expenses, including certain liabilities under the federal securities laws.
Insofar as indemnification for liabilities arising under the federal securities
laws may be permitted to D.F. King pursuant to the foregoing provisions, we have
been informed that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy and is therefore unenforceable.
Proxies may be solicited by mail, courier services, Internet, advertising,
telephone or telecopier or in person. It is anticipated that D.F. King will
employ up to 100 persons to solicit proxies from Oshkosh's Shareholders for the
Annual Meeting. The total expenditures in furtherance of, or in connection with,
the solicitation of proxies is approximately to date, and is estimated to be [ ]
in total.
The Icahn Parties will pay all costs associated with this solicitation. The
Icahn Parties do not intend to seek reimbursement for the costs and expenses
associated with the proxy solicitation in the event that any of the Nominees are
elected to the Board of Directors of Oshkosh.
ADDITIONAL INFORMATION
Certain information regarding the securities of Oshkosh held by Oshkosh's
directors, management and 5% Shareholders is contained in Oshkosh's Proxy
Statement. Information concerning the date by which proposals of security
holders intended to be presented at the next annual meeting of Shareholders of
Oshkosh must be received by Oshkosh for inclusion in the Oshkosh' Proxy
Statement and form of proxy for that meeting is also contained in Oshkosh's
Proxy Statement. This information is expected to be contained in Oshkosh's
public filings. The Participants take no responsibility for the accuracy or
completeness of such information contained in Oshkosh's public filings.
Date: [ ]
CARL C. ICAHN
A.B. KRONGARD
VINCENT J. INTRIERI
SAMUEL MERKSAMER
JOSE MARIA ALAPONT
DANIEL A. NINIVAGGI
MARC F. GUSTAFSON
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.
13
ANNEX A
SECURITY OWNERSHIP OF THE PARTICIPANTS
(1) TITLE OF (2) NAME OF (3) AMOUNT OF (4) PERCENT OF
CLASS BENEFICIAL BENEFICIAL CLASS (2)
OWNER (1) OWNERSHIP
-------- ---------- ---------- ----------
Common Stock, par High River 1,733,054 1.90%
value $0.01 per
share ("Shares")
Shares Icahn Partners 2,654,644 2.90%
Shares Icahn Master 2,867,004 3.14%
Shares Icahn Master II 982,896 1.08%
Shares Icahn Master III 427,662 0.47%
_________________________
(1) Please note that each shareholder listed in this table is, as of November
23, 2011, the direct beneficial owner of the Shares set forth under the
heading "(3) Amount of Beneficial Ownership" and that indirect beneficial
ownership of Shares is described below in the text of this Annex A under
the heading "Description of Beneficial Ownership and Beneficial Owners."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the 91,421,701 Shares stated to be outstanding as of
November 11, 2011 by the Corporation in the Corporation's Form 10K filed
for the fiscal year ended September 30, 2011.
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River. Beckton Corp., a Delaware corporation
("Beckton") is the sole shareholder of Icahn Enterprises G.P. Inc., a Delaware
corporation ("Icahn Enterprises GP"), which is the general partner of Icahn
Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Holdings").
Icahn Holdings is the sole member of IPH GP LLC, a Delaware limited liability
company ("IPH"), which is the general partner of Icahn Capital L.P., a Delaware
limited partnership ("Icahn Capital"). Icahn Capital is the general partner of
each of Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore") and
Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"). Icahn
Onshore is the general partner of Icahn Partners. Icahn Offshore is the general
partner of each of Icahn Master, Icahn Master II and Icahn Master III. Each of
Barberry and Beckton is 100 percent owned by Carl C. Icahn ("Mr. Icahn," and
collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn
Holdings, IPH, Icahn Capital, Icahn Onshore, Icahn Offshore and the Icahn
Parties, the "Beneficial Owners" and each of them a "Beneficial Owner." As
such, Mr. Icahn is in a position indirectly to determine the investment and
voting decisions made by each of the Beneficial Owners.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is
White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and
(ii) Mr. Icahn, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue,
47th Floor, New York, NY 10153. The principal business address of Icahn
Partners is 767 Fifth Avenue, 47th Floor, New York, NY 10153. The principal
business address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT, 87
Mary Street, George Town, Grand Cayman, Cayman Islands. The principal business
address of Icahn Master II is c/o Walkers SPV Limited, Walker House, 87 Mary
Street, George Town, Grand Cayman KY1-9002, Cayman Islands. The principal
business address of Icahn Master III is c/o Walkers SPV Limited, Walker House,
87 Mary Street, George Town, Grand Cayman KY1-9002, Cayman Islands. The
principal business address of High River is 767 Fifth Avenue, 47th Floor, New
York, NY 10153.
Barberry is primarily engaged in the business of serving as the sole member
of Hopper and investing in securities. Hopper is primarily engaged in the
business of serving as the general partner of High River and investing in
securities. Icahn Offshore is primarily engaged in the business of serving as
the general partner of each of Icahn Master, Icahn Master II and Icahn Master
III. Icahn Onshore is primarily engaged in the business of serving as the
general partner of Icahn Partners. Icahn Capital is primarily engaged in the
business of serving as the general partner of each of Icahn Offshore and Icahn
Onshore. IPH is primarily engaged in the business of serving as the general
partner of Icahn Capital. Icahn Holdings is primarily engaged in the business of
holding direct or indirect interests in various operating businesses. Icahn
Enterprises GP is primarily engaged in the business of serving as the general
partner of each of Icahn Enterprises and Icahn Holdings. Beckton is primarily
engaged in the business of holding the capital stock of Icahn Enterprises GP.
Mr. Carl C. Icahn is primarily engaged in serving as (i) Chief Executive Officer
of Icahn Capital LP, a wholly owned subsidiary of Icahn Enterprises, through
which Mr. Icahn manages various private investment funds, including Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III, (ii) Chairman of
the Board of Icahn Enterprises GP, the general partner of Icahn Enterprises
L.P., a New York Stock Exchange listed diversified holding company engaged in a
variety of businesses, including investment management, automotive, gaming,
railcar, food packaging, metals, real estate and home fashion, and (iii)
Chairman of the Board and a director of Starfire Holding Corporation
("Starfire"), a holding company engaged in the business of investing in and/or
holding securities of various entities, and as Chairman of the Board and a
director of various of Starfire's subsidiaries. Each of High River, Icahn
Master, Icahn Master II, Icahn Master III, Icahn Partners and High River are
primarily engaged in the business of investing in securities.
The Beneficial Owners may be deemed to beneficially own, in the aggregate,
8,665,260 Shares, representing approximately 9.48% of the Corporation's
outstanding Shares (based upon the 91,421,701 Shares stated to be outstanding as
of November 11, 2011 by the Corporation in the Corporation's Form 10-K filed for
the fiscal year ended September 30, 2011).
High River has sole voting power and/or sole dispositive power with regard
to 1,733,054 Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting
power and/or shared dispositive power with regard to such Shares. Icahn Partners
has sole voting power and/or sole dispositive power with regard to 2,654,644
Shares. Each of Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and/or shared
dispositive power with regard to such Shares. Icahn Master has sole voting power
and/or sole dispositive power with regard to 2,867,004 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn has shared voting power and/or shared dispositive power with regard to
such Shares. Icahn Master II has sole voting power and/or sole dispositive power
with regard to 982,896 Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn
Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting power
and/or shared dispositive power with regard to such Shares. Icahn Master III has
sole voting power and/or sole dispositive power with regard to 427,662 Shares.
Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises
GP, Beckton and Mr. Icahn has shared voting power and/or shared dispositive
power with regard to such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 1,733,054 Shares
which High River directly beneficially owns. Each of Icahn Onshore, Icahn
Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn, by
virtue of their relationships to Icahn Partners, may be deemed to indirectly
beneficially own the 2,654,644 Shares which Icahn Partners directly beneficially
owns. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Master, Icahn Master II and Icahn Master III, may be deemed to indirectly
beneficially own the 4,277,562 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares, as
well as the exercise of call options, by the Participants and by Mr. Icahn and
his affiliates within the past two years, and the number of shares in each such
purchase and sale.
NAME DATE SHARES PURCHASED/CALL OPTIONS EXERCISED
---- ---- ---------------------------------------
High River 4/29/2011 20,640
High River 4/29/2011 114,440
High River 5/02/2011 108,012
High River 5/02/2011 6,520
High River 5/03/2011 120,001
High River 5/03/2011 980
High River 5/04/2011 55,000
High River 6/28/2011 12,824
High River 6/29/2011 1,460
High River 6/30/2011 60,000
High River 8/31/2011 1,233,177 (3)
Icahn Partners 4/29/2011 31,710
Icahn Partners 4/29/2011 175,821
Icahn Partners 5/02/2011 164,869
Icahn Partners 5/02/2011 9,989
Icahn Partners 5/03/2011 183,831
Icahn Partners 5/03/2011 1,503
Icahn Partners 5/04/2011 84,255
Icahn Partners 6/28/2011 19,643
Icahn Partners 6/29/2011 2,236
Icahn Partners 6/30/2011 91,906
Icahn Partners 8/31/2011 1,888,8813 (3)
Icahn Master 4/29/2011 33,915
Icahn Master 4/29/2011 188,043
Icahn Master 5/02/2011 180,077
Icahn Master 5/02/2011 10,783
Icahn Master 5/03/2011 198,462
Icahn Master 5/03/2011 1,621
Icahn Master 5/04/2011 90,961
Icahn Master 6/28/2011 21,215
Icahn Master 6/29/2011 2,415
Icahn Master 6/30/2011 99,258
Icahn Master 8/31/2011 2,040,2543 (3)
Icahn Master II 4/29/2011 11,810
Icahn Master II 4/29/2011 65,483
Icahn Master II 5/02/2011 60,685
Icahn Master II 5/02/2011 3,701
Icahn Master II 5/03/2011 68,112
Icahn Master II 5/03/2011 556
Icahn Master II 5/04/2011 31,218
Icahn Master II 6/28/2011 7,273
Icahn Master II 6/29/2011 828
Icahn Master II 6/30/2011 34,029
Icahn Master II 8/31/2011 699,2013 (3)
Icahn Master III 4/29/2011 5,125
Icahn Master III 4/29/2011 28,413
Icahn Master III 5/02/2011 26,416
Icahn Master III 5/02/2011 1,607
Icahn Master III 5/03/2011 29,597
Icahn Master III 5/03/2011 240
Icahn Master III 5/04/2011 13,566
Icahn Master III 6/28/2011 3,164
Icahn Master III 6/29/2011 361
Icahn Master III 6/30/2011 14,807
Icahn Master III 8/31/2011 304,3663 (3)
_________________________
(3) The Icahn Parties acquired these Shares upon the exercise of call options
as described on Attachment I-A to this Annex A.
Shares of Common Stock purchased by each of the Icahn Parties are maintained in
margin accounts that include positions in securities in addition to the shares.
As of November 22, 2011, the indebtedness of (i) High River's margin account was
approximately $468 million, (ii) Icahn Partners' margin account was
approximately $771 million, (iii) Icahn Master's margin account was
approximately $790 million, (iv) Icahn Master II's margin account was
approximately $242 million, and (v) Icahn Master III's margin account was
approximately $111 million.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Icahn Parties, which
were written by UBS AG with a $19.84 strike price and an expiration date of May
3, 2013, and which provided for physical settlement. These are further described
in the chart set forth below. On August 31, 2011, the Icahn Parties exercised
all of their respective call options.
OPTION PREMIUM
NAME DATE QUANTITY PAID ($)
---- ---- --------- --------------
High River 5/05/2011 100,000 1,068,350.00
High River 5/06/2011 140,000 1,498,350.00
High River 5/09/2011 77,160 822,371.28
High River 5/10/2011 55,000 590,386.50
High River 5/11/2011 112,164 1,164,419.35
High River 6/20/2011 145,000 895,723.00
High River 6/21/2011 170,338 1,215,157.22
High River 6/22/2011 146,643 1,126,907.46
High River 6/23/2011 75,870 545,573.58
High River 6/24/2011 106,002 840,988.07
High River 6/27/2011 100,000 800,810.00
High River 6/30/2011 5,000 45,665.50
Icahn Partners 5/05/2011 153,195 1,636,658.78
Icahn Partners 5/06/2011 214,470 2,295,365.18
Icahn Partners 5/09/2011 118,204 1,259,818.23
Icahn Partners 5/10/2011 84,256 904,429.18
Icahn Partners 5/11/2011 171,827 1,783,804.82
Icahn Partners 6/20/2011 221,962 1,371,148.06
Icahn Partners 6/21/2011 260,919 1,861,343.96
Icahn Partners 6/22/2011 224,623 1,726,160.37
Icahn Partners 6/23/2011 116,217 835,704.83
Icahn Partners 6/24/2011 162,371 1,288,202.80
Icahn Partners 6/27/2011 153,177 1,226,656.73
Icahn Partners 6/30/2011 7,660 69,959.55
Icahn Master 05/05/2011 165,384 1,766,879.96
Icahn Master 05/06/2011 231,538 2,478,035.45
Icahn Master 05/09/2011 127,610 1,360,067.38
Icahn Master 05/10/2011 90,962 976,413.40
Icahn Master 05/11/2011 185,500 1,925,749.70
Icahn Master 06/20/2011 240,302 1,484,441.57
Icahn Master 06/21/2011 281,792 2,010,247.77
Icahn Master 06/22/2011 242,592 1,864,246.74
Icahn Master 06/23/2011 125,512 902,544.24
Icahn Master 06/24/2011 175,359 1,391,245.70
Icahn Master 06/27/2011 165,431 1,324,787.99
Icahn Master 06/30/2011 8,272 75,549.00
Icahn Master II 05/05/2011 56,760 606,395.46
Icahn Master II 05/06/2011 79,462 850,442.06
Icahn Master II 05/09/2011 43,797 466,788.43
Icahn Master II 05/10/2011 31,216 335,081.91
Icahn Master II 05/11/2011 63,666 660,942.21
Icahn Master II 06/20/2011 81,827 505,478.11
Icahn Master II 06/21/2011 96,607 689,175.02
Icahn Master II 06/22/2011 83,168 639,121.13
Icahn Master II 06/23/2011 43,029 309,417.24
Icahn Master II 06/24/2011 60,119 476,966.11
Icahn Master II 06/27/2011 56,715 454,179.39
Icahn Master II 06/30/2011 2,835 25,892.34
Icahn Master III 05/05/2011 24,661 263,465.79
Icahn Master III 05/06/2011 34,530 369,557.33
Icahn Master III 05/09/2011 19,029 202,811.08
Icahn Master III 05/10/2011 13,566 145,621.51
Icahn Master III 05/11/2011 27,661 287,159.91
Icahn Master III 06/20/2011 35,909 221,824.26
Icahn Master III 06/21/2011 42,033 299,855.02
Icahn Master III 06/22/2011 36,187 278,086.24
Icahn Master III 06/23/2011 18,722 134,628.03
Icahn Master III 06/24/2011 26,158 207,529.72
Icahn Master III 06/27/2011 24,677 197,615.88
Icahn Master III 06/30/2011 1,233 11,261.11
ANNEX A
ATTACHMENT 1-B
The following are European put options which were written by the Icahn Parties
to UBS AG and had a $19.84 strike price and an expiration date of the earlier of
May 3, 2013 or the date on which the corresponding American-style call option
described in Annex A, Attachment 1-A is exercised, and provided for cash
settlement only and are further described in the chart set forth below. On
August 31, 2011, the Icahn Parties exercised all of the call options described
in Annex A, Attachment 1-A, and upon exercise of the call options, all of the
put options described below expired pursuant to their terms.
OPTION PREMIUM
NAME DATE QUANTITY RECEIVED ($)
---- ---- --------- --------------
High River 5/05/2011 100,000 1,000.00
High River 5/06/2011 140,000 1,400.00
High River 5/09/2011 77,160 771.60
High River 5/10/2011 55,000 550.00
High River 5/11/2011 112,164 1,121.64
High River 6/20/2011 145,000 1,450.00
High River 6/21/2011 170,338 1,703.38
High River 6/22/2011 146,643 1,466.43
High River 6/23/2011 75,870 758.70
High River 6/24/2011 106,002 1,060.02
High River 6/27/2011 100,000 1,000.00
High River 6/30/2011 5,000 50.00
Icahn Partners 5/05/2011 153,195 1,531.95
Icahn Partners 5/06/2011 214,470 2,144.70
Icahn Partners 5/09/2011 118,204 1,182.04
Icahn Partners 5/10/2011 84,256 842.56
Icahn Partners 5/11/2011 171,827 1,718.27
Icahn Partners 6/20/2011 221,962 2,219.62
Icahn Partners 6/21/2011 260,919 2,609.19
Icahn Partners 6/22/2011 224,623 2,246.23
Icahn Partners 6/23/2011 116,217 1,162.17
Icahn Partners 6/24/2011 162,371 1,623.71
Icahn Partners 6/27/2011 153,177 1,531.77
Icahn Partners 6/30/2011 7,660 76.60
Icahn Master 5/05/2011 165,384 1,653.84
Icahn Master 5/06/2011 231,538 2,315.38
Icahn Master 5/09/2011 127,610 1,276.10
Icahn Master 5/10/2011 90,962 909.62
Icahn Master 5/11/2011 185,500 1,855.00
Icahn Master 6/20/2011 240,302 2,403.02
Icahn Master 6/21/2011 281,792 2,817.92
Icahn Master 6/22/2011 242,592 2,425.92
Icahn Master 6/23/2011 125,512 1,255.12
Icahn Master 6/24/2011 175,359 1,753.59
Icahn Master 6/27/2011 165,431 1,654.31
Icahn Master 6/30/2011 8,272 82.72
Icahn Master II 5/05/2011 56,760 567.60
Icahn Master II 5/06/2011 79,462 794.62
Icahn Master II 5/09/2011 43,797 437.97
Icahn Master II 5/10/2011 31,216 312.16
Icahn Master II 5/11/2011 63,666 636.66
Icahn Master II 6/20/2011 81,827 818.27
Icahn Master II 6/21/2011 96,607 966.07
Icahn Master II 6/22/2011 83,168 831.68
Icahn Master II 6/23/2011 43,029 430.29
Icahn Master II 6/24/2011 60,119 601.19
Icahn Master II 6/27/2011 56,715 567.15
Icahn Master II 6/30/2011 2,835 28.35
Icahn Master III 5/05/2011 24,661 246.61
Icahn Master III 5/06/2011 34,530 345.30
Icahn Master III 5/09/2011 19,029 190.29
Icahn Master III 5/10/2011 13,566 135.66
Icahn Master III 5/11/2011 27,661 276.61
Icahn Master III 6/20/2011 35,909 359.09
Icahn Master III 6/21/2011 42,033 420.33
Icahn Master III 6/22/2011 36,187 361.87
Icahn Master III 6/23/2011 18,722 187.22
Icahn Master III 6/24/2011 26,158 261.58
Icahn Master III 6/27/2011 24,677 246.77
Icahn Master III 6/30/2011 1,233 12.33
ANNEX B
[FORM OF NOMINEE AGREEMENT]
ICAHN CAPITAL LP
November 3, 2011
To the undersigned potential nominee:
This will confirm our understanding as follows:
You agree that you are willing, should we so elect, to become a member of a
slate of nominees (the "Slate") to stand for election as directors of Oshkosh
Corporation ("Oshkosh") in connection with a proxy contest with management of
Oshkosh in respect of the election of directors of Oshkosh at the 2012 Annual
Meeting of Stockholders of Oshkosh (the "Annual Meeting"), expected to be held
on or about February 2012, or a special meeting of stockholders of Oshkosh
called for a similar purpose (the "Proxy Contest").
Icahn Capital LP ("Icahn") agrees to pay the costs of the Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the SEC,
which indicates that Icahn, or an affiliate thereof, intends to nominate you for
election at the Annual Meeting, you will be entitled to be paid $25,000 by Icahn
unless you are elected to serve as a director of Oshkosh at the Annual Meeting
or a special meeting of stockholders of Oshkosh called for a similar purpose or
in connection with a settlement of the Proxy Contest by Icahn and Oshkosh, in
which case you will not receive any payment from Icahn in connection with the
Proxy Contest. Payment to you pursuant to this paragraph, if any, will be made
by Icahn, subject to the terms hereof, upon the earliest of (i) the
certification of the results of the election in respect of the Proxy Contest,
(ii) the settlement of the Proxy Contest by Icahn and Oshkosh, or (iii) the
withdrawal of the Proxy Contest by Icahn (4).
You understand that it may be difficult, if not impossible, to replace
nominees who, such as yourself, have agreed to serve on the Slate and later
change their minds and determine not to seek election. Accordingly, the Slate is
relying upon your agreement to seek election. In that connection, you are being
supplied with a questionnaire in which you will provide Icahn with information
necessary for Icahn to make appropriate disclosure both to Oshkosh and for use
in creating the proxy material to be sent to shareholders of Oshkosh and to be
filed with the Securities and Exchange Commission. You have agreed that (i) you
will immediately complete and sign the questionnaire and return it to Mark
DiPaolo, Assistant General Counsel, Icahn Enterprises LP, 767 Fifth Avenue,
Suite 4700, New York, NY 10153, Tel: (212) 702-4361, Fax: (212) 688-1158, Email:
mdipaolo@sfire.com and (ii) your responses to the questions contained therein
will be true and correct in all respects. In addition, you have agreed that,
concurrently with your execution of this letter, you will execute the attached
instrument directed to Oshkosh informing Oshkosh that you consent to being
nominated by Icahn, or an affiliate thereof, for election as a director of
Oshkosh and, if elected, consent to serving as a director of Oshkosh. You also
will make a statement in the attached instrument that if elected, you intend to
tender a resignation effective upon your failure to receive the required vote
for re-election at the next meeting at which you would face re-election and upon
acceptance of such resignation by the Board of Directors of the Company, in
accordance with the Company's Amended and Restated Bylaws. Upon being notified
that we have chosen you, we may forward that instrument and your completed
questionnaire (or summaries thereof) to Oshkosh. Upon being notified that we
have chosen you, we may forward that instrument and your completed questionnaire
(or summaries thereof) to Oshkosh.
Icahn hereby agrees that, so long as you actually serve on the Slate, Icahn
will defend, indemnify and hold you harmless from and against any and all
losses, damages, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (including, without limitation, reasonable attorneys' fees, costs,
expenses and disbursements) incurred by you in the event that (i) you become a
party, or are threatened to be made a party, to any civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal thereof
relating solely to your role as a nominee for director of Oshkosh on the Slate
(a "Proceeding") or (ii) you are called to testify or give a deposition in any
Proceeding (whether or not you are a party or are threatened to be made a party
to such Proceeding), including, in each case, the advancement to you of all
reasonable attorneys' costs and expenses incurred by you in connection with any
Proceeding. Your right of indemnification hereunder shall continue (i) in the
event that Icahn determines to withdraw the Slate or remove you from the Slate
and (ii) after the election has taken place but only for events which occur
prior to such election and subsequent to the date hereof. Anything to the
contrary herein notwithstanding, Icahn is not indemnifying you for any action
taken by you or on your behalf which occurs prior to the date hereof or
_________________________
(4) This paragraph is not contained in Mr. Alapont's agreement.
subsequent to the Annual Meeting or such earlier time as you are no longer a
nominee of the Slate for election to Oshkosh' Board of Directors or for any
actions taken by you as a director of Oshkosh, if you are elected. Nothing
herein shall be construed to provide you an indemnity: (i) in the event you are
found to have engaged in a violation of any provision of state or federal law in
connection with the Proxy Contest unless you demonstrate that your action was
taken in good faith and in a manner you reasonably believed to be in or not
opposed to the best interests of electing the Slate; or (ii) if you acted in a
manner which constitutes gross negligence or willful misconduct. In the event
that you shall make any claim for indemnification hereunder, you shall promptly
notify Icahn in the event of any third-party claims actually made against you or
known by you to be threatened. In addition, with respect to any such claim,
Icahn shall be entitled to control your defense with counsel chosen by Icahn.
Icahn shall not be responsible for any settlement of any claim against you
covered by this indemnity without its prior written consent. However, Icahn may
not enter into any settlement of any such claim without your consent unless such
settlement includes a release of you from any and all liability in respect of
such claim.
Each of us recognizes that should you be elected to the Board of Directors
of Oshkosh all of your activities and decisions as a director will be governed
by applicable law and subject to your fiduciary duty to the stockholders of
Oshkosh and, as a result, that there is, and can be, no agreement between you
and Icahn which governs the decisions which you will make as a director of
Oshkosh.
Should the foregoing agree with your understanding, please so indicate in
the space provided below, whereupon this letter will become a binding agreement
between us.
Very truly yours,
ICAHN CAPITAL LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as
of the date first above written:
________________________________
Name:
IMPORTANT
---------
1. If your shares of Common Stock are held in your own name, please
mark, date and mail the enclosed GOLD proxy card to our Proxy Solicitor, D.F.
King & Co., Inc., in the postage-paid envelope provided.
2. If your shares of Common Stock are held in the name of a brokerage
firm, bank nominee or other institution, only it can vote such shares of Common
Stock and only upon receipt of your specific instructions. Accordingly, you
should contact the person responsible for your account and give instructions for
a GOLD proxy card to be signed representing your shares of Common Stock.
3. If you have already submitted a white proxy card to Oshkosh for the
Annual Meeting, you may change your vote to a vote FOR the election of the
Nominee by marking, signing, dating and returning the enclosed GOLD proxy card
for the Annual Meeting, which must be dated after any proxy you may have
submitted to Oshkosh. You may also submit your later-dated proxy by using the
enclosed GOLD proxy card to vote by telephone or by Internet. ONLY YOUR LATEST
DATED PROXY FOR THE ANNUAL MEETING WILL COUNT AT THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 659-5550
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
OSHKOSH CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
_____________, 2012
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY: CARL C. ICAHN, A.B. KRONGARD, VINCENT J. INTRIERI,
SAMUEL MERKSAMER, JOSE MARIA ALAPONT, DANIEL A. NINIVAGGI, MARC F. GUSTAFSON,
HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY CORP., ICAHN
PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II L.P.,
ICAHN PARTNERS MASTER FUND III L.P., 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. (THE "PARTICIPANTS")
VOTING CONTROL NUMBER: ________________
THERE ARE THREE WAYS TO AUTHORIZE THE PROXIES TO CAST YOUR VOTES.
YOUR TELEPHONE OR INTERNET VOTE AUTHORIZES THE NAMED PROXIES TO VOTE
YOUR SHARES IN THE SAME MANNER AS IF YOU HAD RETURNED YOUR PROXY CARD.
WE ENCOURAGE YOU TO USE THESE COST EFFECTIVE AND CONVENIENT WAYS OF
VOTING, 24 HOURS A DAY, 7 DAYS A WEEK.
TELEPHONE VOTING INTERNET VOTING VOTING BY MAIL
This method of voting is Visit the Internet voting Simply sign and date
available for residents website at http://www. your proxy card and
of the US and Canada. On firstcoastresults.com/osk. return it in the post-
a touch-tone telephone, Have this proxy card ready age-paid envelope to
call TOLL FREE [ ], 24 and follow the instructions D.F. King & Co., Inc.,
hours a day, 7 days a on your screen. You will c/o _____. If you are
week. Have this proxy incur only your usual Inter- voting by telephone or
card ready, then follow net charges. Available 24 the Internet, please
the prerecorded instruc- hours a day, 7 days a week do not mail your proxy
tions. Your vote will be until 10:00 a.m. (Central card.
confirmed and cast as Standard Time) on [ ], 2011.
you have directed. Avail-
able 24 hours a day, 7
days a week until 10:00
a.m. (Central Standard
Time) on [ ], 2011.
DETACH BELOW AND RETURN USING THE ENVELOPE PROVIDED ONLY IF YOU ARE VOTING BY
MAIL
YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL, MUST BE RECEIVED NO LATER
THAN [ ] TO BE INCLUDED IN THE VOTING RESULTS.
DETACH HERE
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
OSHKOSH CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
_____________, 2012
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY: CARL C. ICAHN, A.B. KRONGARD, VINCENT J.
INTRIERI, SAMUEL MERKSAMER, JOSE MARIA ALAPONT, DANIEL A. NINIVAGGI, MARC F.
GUSTAFSON, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY
CORP., ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER
FUND II L.P., ICAHN PARTNERS MASTER FUND III L.P., 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. (THE "PARTICIPANTS")
The undersigned hereby appoints and constitutes each of Vincent J. Intrieri and
Samuel Merksamer (acting alone or together) as proxies, with full power of
substitution in each, to represent the undersigned at the Annual Meeting of
Shareholders of Oshkosh Corporation ("Oshkosh") to be held on ____________, 2012
at 10:00 a.m. (Central Standard Time) at _______________, and at any adjournment
or postponement or continuations thereof (the "Annual Meeting"), hereby revoking
any proxies previously given, to vote all shares of Common Stock of Oshkosh held
or owned by the undersigned as directed below, and in their discretion upon such
other matters as may come before the meeting (provided, however, that the
persons named above will be permitted to use such discretionary authority only
for matters which they do not know, a reasonable time before the solicitation,
are to be presented at the meeting).
IF NO DIRECTION IS MADE, THE PERSONS NAMED IN THIS GOLD PROXY CARD WILL VOTE
YOUR SHARES: (I) FOR A.B. KRONGARD FOR DIRECTOR; (II) FOR VINCENT J. INTRIERI
FOR DIRECTOR; (III) FOR SAMUEL MERKSAMER FOR DIRECTOR; (IV) FOR JOSE MARIA
ALAPONT FOR DIRECTOR; (V) FOR DANIEL A. NINIVAGGI FOR DIRECTOR; (VI) FOR MARC F.
GUSTAFSON FOR DIRECTOR; (VII) FOR THE PERSONS WHO HAVE BEEN NOMINATED BY OSHKOSH
TO SERVE AS DIRECTORS, OTHER THAN [ ], [ ], [ ], [ ], [ ] AND [ ]; (VIII) [ ]
THE APPROVAL OF THE RATIFICATION OF THE APPOINTMENT OF DELOITTE & TOUCHE LLP, AN
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM, AS OSHKOSH'S INDEPENDENT AUDITORS
FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2012; (IX) [ ] THE APPROVAL OF THE
ADVISORY VOTE ON THE COMPENSATION OF OSHKOSH'S NAMED EXECUTIVE OFFICERS; (X) [ ]
THE APPROVAL OF AN AMENDMENT AND RESTATEMENT OF OSHKOSH'S 2009 INCENTIVE STOCK
AND AWARDS PLAN; (XI) [] THE APPROVAL OF THE SHAREHOLDER PROPOSAL REGARDING
SHAREHOLDER ACTION BY WRITTEN CONSENT; AND (XII) IN THE PROXY HOLDERS'
DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/OSK.
SIGN, DATE AND MAIL YOUR PROXY TODAY
UNLESS YOU HAVE VOTED BY TELEPHONE OR BY INTERNET,
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
IF YOU HAVE NOT VOTED BY INTERNET OR TELEPHONE, PLEASE DATE, MARK, SIGN AND
RETURN THIS PROXY PROMPTLY. YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL,
MUST BE RECEIVED NO LATER THAN 10:00 AM, CENTRAL STANDARD TIME, ON ______, 2012,
TO BE INCLUDED IN THE VOTING RESULTS.
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
THE PARTICIPANTS RECOMMEND A VOTE "FOR" THE ELECTION OF THE NOMINEES LISTED IN
PROPOSAL 1 BELOW.
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) A.B. Krongard FOR ALL WITHHELD FROM FOR ALL
(02) Vincent J. Intrieri NOMINEES ALL NOMINEES EXCEPT
(03) Samuel Merksamer
(04) Jose Maria Alapont
(05) Daniel A. Ninivaggi
(06) Marc F. Gustafson
PLUS the persons who have been nominated by Oshkosh to serve as directors,
other than [ ], [ ], [ ], [ ], [ ] and [ ]. The Participants are NOT
seeking authority to vote for and WILL NOT exercise any authority to vote
for [ ], [ ], [ ], [ ], [ ] and [ ]. There is no assurance that any of the
Oshkosh nominees, will serve as directors if any or all of the Nominees are
elected to the Board. You should refer to the proxy statement and form of
proxy distributed by Oshkosh for the names, background, qualifications and
other information concerning the Oshkosh nominees.
NOTE: IF YOU DO NOT WISH YOUR SHARES VOTED "FOR" A PARTICULAR NOMINEE, MARK
THE "FOR ALL EXCEPT" BOX AND WRITE THE NAME(S) OF THE NOMINEE(S) YOU DO NOT
SUPPORT ON THE LINE BELOW. YOU MAY ALSO WITHHOLD AUTHORITY TO VOTE FOR THE
PERSONS WHO HAVE BEEN NOMINATED BY OSHKOSH TO SERVE AS DIRECTORS OTHER THAN
[ ], [ ], [ ], [ ], [ ] and [ ] BY WRITING THE NAMES OF SUCH NOMINEES FOR
WHOM YOU WISH TO WITHHOLD AUTHORITY BELOW. YOUR SHARES WILL BE THEN VOTED
FOR THE REMAINING NOMINEE(S).
_______________________________________________________________________________
THE PARTICIPANTS RECOMMEND A VOTE "___" IN PROPOSAL 2 BELOW; "___" IN PROPOSAL 3
BELOW; "___" IN PROPOSAL 4 BELOW; AND "___" IN PROPOSAL 5 BELOW.
2. Ratification of the appointment of Deloitte [ ] [ ] [ ]
& Touche LLP, an independent registered FOR AGAINST ABSTAIN
public accounting firm, as Oshkosh's
independent auditors for the fiscal year
2012.
3. Approval, by advisory vote, of Oshkosh's [ ] [ ] [ ]
executive compensation. FOR AGAINST ABSTAIN
4. Approval of amendment and restatement of [ ] [ ] [ ]
2009 Incentive Stock and Awards Plan. FOR AGAINST ABSTAIN
5. Consideration of a shareholder proposal, if [ ] [ ] [ ]
properly presented, to permit shareholder FOR AGAINST ABSTAIN
action by less than unanimous written consent.
Please be sure to sign and date this Proxy.
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SIGNATURE(S) OF SHAREHOLDER(S) DATE
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SIGNATURE(S) IF HELD JOINTLY DATE
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TITLE, IF ANY
Please sign exactly as your name(s) appear on this proxy. When Shares are
held jointly, each holder should sign. When signing as Executor,
administrator, attorney, trustee or guardian, please give full title as
such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a
partnership, please sign in partnership name by authorized person.