Icahn's proposals take advantage of new North Dakota law that removes anti-takeover provisions

By Cristal Cody

Tupelo, Miss., Feb. 9 - Carl Icahn's proposal to move the Delaware incorporation of Biogen Idec Inc. to North Dakota would take advantage of a new state law that removes most takeover obstacles, the law's creator told Prospect News on Monday.

About 15 shareholder proposals to move companies to the state are expected this year, said William H. Clark Jr., who drafted the 2007 law after he was hired by a group of activist investors.

The North Dakota Publicly Traded Corporations Act gives shareholders rights that include a majority vote for directors and restrictions on poison pills and other anti-takeover measures.

The state also has fees that are half the cost of fees in Delaware, the country's leader in business incorporations, Clark said.

Icahn Partners LP on Friday proposed the incorporation move and made four nominations for directors to Biogen's board.

Icahn also plans a proposal to move the incorporation of Amylin Pharmaceuticals Inc. to North Dakota, said Clark, who is a partner in the national law firm of Drinker Biddler & Reath LLP and a director of the North Dakota Corporate Governance Council in Bismarck.

Icahn said in a regulatory filing in January that he planned to nominate five directors to Amylin's board but did not mention any proposals to move the incorporation.

Icahn did not return calls for comment.

No companies have yet moved to North Dakota because of the law.

If a company's shareholders did approve an incorporation move, Clark said it would not be an immediate process because the board would have to make a formal transition.

Icahn's first proposal to nominate directors to Biogen's board did not gain shareholder support in June 2008.

Analysts told Prospect News that Icahn is looking toward a sale of Biogen by pushing out current management, but they don't expect a buyout of Amylin. The obvious acquirer, Eli Lilly & Co., is underway in the integration of its $6.5 billion acquisition of ImClone Systems Inc.

Icahn took over ImClone's board in 2006 and pressed the sale of the company to Eli Lilly last year.

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