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
ImClone Systems Incorporated
(Name of Registrant as Specified In Its Charter)
Carl C. Icahn, Alexander J. Denner, Barberry Corp., and
High River Limited Partnership
(Name of Person(s) Filing Consent 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 October 4, 2006, Carl C. Icahn issued the following press release:
"FOR IMMEDIATE RELEASE
ICAHN RESPONDS TO IMCLONE AND SETS THE RECORD STRAIGHT
New York, New York, October 4, 2006
Contact: Susan Gordon (212) 702-4309
Carl Icahn issued the following statement today in response to a portion of
ImClone filing with the Securities and Exchange Commission:
1. ImClone filed a statement today with the Securities and Exchange Commission
intimating that it turned down a bid of $35.50 for the Company as a result of my
opposing it. This is in contradiction to the Company's statement of August 10,
2006, indicating that it turned down the bid because it was inadequate. It
should be noted that the bid was a conditional non-cash offer and made with the
bidder's stock, which I believed was overpriced. Either the ImClone Board is now
attempting to totally mislead you or they are admitting that they did not even
have the strength of conviction to support a sale they believed in when an 11%
stockholder was against it. Are they now saying that they wanted to sell the
Company (whose stock price had peaked at $86 per share in July 2004) for $35.50
in a non-cash transaction? While I admit I was opposed to the bid, if the Board
really wanted to sell the Company at $35.50, it should have done what any
self-respecting board would have done. They should have accepted the bid and
then tried to convince the stockholders that the transaction was in their best
interest and not let an 11% stockholder stand in their way.
This whole episode points out that the Board is either unable to make decisions
even if they believe them to be in the best interests of stockholders or is
currently misstating the facts solely to entrench themselves and keep themselves
from being removed.
2. I believe that ImClone is worth more than $36 a share if it is run by
competent people, including competent high-level management supervised by a
competent Board of Directors. I believe in its product and its pipeline, and I
believe its other stockholders share that belief. On September 14, 2006, the
Company's investment banker called and said that the same bidder was interested
in making the same all-stock bid at $36 with the same conditions, if I would
favor it. I felt then that I was being asked to comment on a non-bid but stated
that if the all-stock bid were made, I still thought that the consideration was
inadequate and would vote my shares against it. In fact, no one from the Company
even contacted me to tell me that they changed their mind on the basis that the
new suggested price was 50 cents higher, nor did anyone from ImClone urge me to
support the $36 possible bid. Had the Board really favored a sale at $36, the
Board could have pursued the matter and asked the bidder to make the bid.
However, I must admit I am very glad they did not.
SECURITY HOLDERS ARE ADVISED TO READ THE CONSENT STATEMENT AND OTHER DOCUMENTS
RELATED TO SOLICITATION OF CONSENTS BY MR. ICAHN AND HIS AFFILIATES FROM THE
STOCKHOLDERS OF IMCLONE SYSTEMS INCORPORATED WHEN AND IF THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. WHEN AND IF COMPLETED, A
DEFINITIVE CONSENT STATEMENT AND A FORM OF CONSENT WILL BE MAILED TO
STOCKHOLDERS OF IMCLONE SYSTEMS INCORPORATED AND WILL BE AVAILABLE AT NO CHARGE
AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV.
INFORMATION RELATING TO THE POTENTIAL PARTICIPANTS IN A POTENTIAL CONSENT
SOLICITATION IS CONTAINED IN THE SCHEDULE 14A FILED BY MR. ICAHN AND HIS
AFFILIATES WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 2006
WITH RESPECT TO IMCLONE SYSTEMS ICORPORATED. THAT SCHEDULE 14A IS STILL
PRELIMINARY AND IS SUBJECT TO CHANGE AND IT IS CURRENTLY AVAILABLE AT NO CHARGE
ON THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE."
SECURITY HOLDERS ARE ADVISED TO READ THE CONSENT STATEMENT AND OTHER DOCUMENTS
RELATED TO SOLICITATION OF CONSENTS BY MR. ICAHN AND HIS AFFILIATES FROM THE
STOCKHOLDERS OF IMCLONE SYSTEMS INCORPORATED WHEN AND IF THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. WHEN AND IF COMPLETED, A
DEFINITIVE CONSENT STATEMENT AND A FORM OF CONSENT WILL BE MAILED TO
STOCKHOLDERS OF IMCLONE SYSTEMS INCORPORATED AND WILL BE AVAILABLE AT NO CHARGE
AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV.
INFORMATION RELATING TO THE POTENTIAL PARTICIPANTS IN A POTENTIAL CONSENT
SOLICITATION IS CONTAINED IN THE SCHEDULE 14A FILED BY MR. ICAHN AND HIS
AFFILIATES WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 2006
WITH RESPECT TO IMCLONE SYSTEMS ICORPORATED. THAT SCHEDULE 14A IS STILL
PRELIMINARY AND IS SUBJECT TO CHANGE AND IT IS CURRENTLY AVAILABLE AT NO CHARGE
ON THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE.