UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
CONSENT STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
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))
|X| Definitive Proxy Statement
|_| Definitive Additional Materials
|_| Soliciting Material Pursuant to sec. 240.14a-12
IMCLONE SYSTEMS INCORPORATED
(Name of Registrant as Specified in Its Charter)
CARL C. ICAHN
ALEXANDER J. DENNER
PETER S. LIEBERT
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
AND
HOPPER INVESTMENTS LLC
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required.
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which the transaction applies:
(2) Aggregate number of securities to which the transaction applies:
(3) Per unit price or other underlying value of the 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 the 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:
CARL C. ICAHN
ALEXANDER J. DENNER
PETER S. LIEBERT
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
AND
HOPPER INVESTMENTS LLC
Dear Fellow Stockholders of ImClone Systems Incorporated:
Written consents are being solicited by Carl C. Icahn, Alexander J. Denner,
Peter S. Liebert, Barberry Corp., High River Limited Partnership and Hopper
Investments LLC, and not by ImClone Systems Incorporated ("ImClone" or the
"Company").
We originally determined to solicit written consents to remove the four
directors named below as well as Messrs. David M. Kies and William W. Crouse. On
October 10, 2006, ImClone announced that Messrs. Kies and Crouse resigned from
the Board of Directors (the "Resignations"). Therefore, we are now requesting
that you act by written consent (1) to remove the four directors named below
from the Company's twelve member board and (2) to fill one of the vacancies
resulting from the removal or from the Resignations with the person also named
below.
We are soliciting your written consent to approve the following:
o the removal without cause of Vincent T. DeVita, Jr., M.D., John A. Fazio,
Joseph L. Fischer and William R. Miller from the Company's Board of
Directors and any other person or persons (other than the persons elected
pursuant to this proposed action by written consent) elected or appointed
to the Board of the Company prior to the effective date of these Proposals
to fill any newly-created directorship or vacancy on the Board;
o the appointment of Peter S. Liebert, M.D, to serve as a member of the Board
to fill one of the newly-created vacancies or one of the vacancies created
by the Resignation (the "Nominee");
Our Nominee, together with Carl C. Icahn, Andrew G. Bodnar M.D., J.D, Alexander
J. Denner Ph.D, Richard C. Mulligan, Ph.D., David Sidransky, M.D, Charles Woler,
M.D., Ph.D., M.B.A. (Mr. Icahn and Drs. Bodnar, Denner, Mulligan, Sidransky,
Woler, collectively, the "Remaining Directors"), will actively work to improve
the Company's long-term viability and stock price. Neither Mr. Icahn nor Dr.
Denner have any agreements or understandings with the other Remaining Directors
or Dr. Liebert as to any particular course of action which the Board may
undertake in the future.
In the event that the stockholders approve the removal of the four directors we
are proposing to remove but fail to appoint Dr. Liebert as a member of the
Board, the Remaining Directors will constitute less than the quorum required for
Board action in accordance with the Company's by-laws. However, in accordance
with Delaware law, without a requirement of any stockholder action, the
Remaining Directors will be able to fill one or more of the then existing
vacancies on the Board. We expect that if the Remaining Directors constitute
less than the required quorum, they will seek to fill one or more of the
vacancies so that the Board will be able to comply with the quorum requirement.
Although no determination was made as any particular individuals to be so
appointed, who could be Dr. Liebert among others, such decision if made by the
Remaining Directors, will be made by them as fiduciaries for all of the
stockholders.
Three of the Remaining Directors, which include Mr. Icahn, Dr. Denner and Dr.
Sidransky, are currently serving
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on the Chief Executive Officer Search Committee of the Company together with two
other directors we are seeking to remove from the Board. Mr. Icahn and Dr.
Denner as members of such committee currently have a role in the Company's
search for a new Chief Executive Officer. Mr. Icahn and Dr. Denner will continue
in such search for a permanent Chief Executive Officer and we expect the
reconstituted Board will also proceed rapidly to find such permanent Chief
Executive Officer.
We decided to proceed with this consent solicitation, notwithstanding our prior
statements in Item 4 on Schedule 13D on August 23, 2006 (in which it was stated
that "Mr. Icahn has agreed to accept management's offer in order to avoid a
possible proxy contest which he agrees with Issuer would be disruptive to Issuer
and therefore very damaging to it") because:
o We had assumed from statements made by Mr. David M. Kies that he would give
up his chairmanship position with the Board of ImClone following his
reelection to the Board by the stockholders on September 20, 2006, but,
instead, Mr. Kies actively sought reelection and was reelected chair by the
majority of the Board on September 20, 2006.
o Mr. Icahn indicated to ImClone his strong belief that ImClone should not
enter into a long-term agreement with Mr. Joseph L. Fischer, its current
temporary Chief Executive Officer, but instead ImClone apparently
determined to enter into an agreement with Mr. Fischer as disclosed in its
Form 8-K filed with the Securities and Exchange Commission on August 24,
2006.
THE NOMINEE, IF APPOINTED, AND THE REMAINING DIRECTORS ARE REQUIRED TO ACT IN
THE BEST INTEREST OF THE COMPANY'S STOCKHOLDERS.
WE BELIEVE THAT YOUR VOICE IN THE FUTURE OF IMCLONE CAN BEST BE EXPRESSED
THROUGH YOUR CONSENT TO THE TWO PROPOSALS OUTLINED ABOVE.
The enclosed consent solicitation statement contains important information
concerning our solicitation and our Nominee--please read it carefully.
WE URGE YOU TO PROTECT YOUR INVESTMENT IN IMCLONE NOW BY SIGNING, DATING AND
RETURNING THE ENCLOSED WHITE CONSENT CARD TODAY.
The results of our consent solicitation will be communicated to you by the
issuance of a press release. Additionally, in accordance with applicable law,
prompt notice of the action taken by consent will be provided to stockholders
who have not executed consents.
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Please consent with respect to all shares for which you are entitled to give
consent, as set forth on your WHITE consent card, in favor of each Proposal as
described in the accompanying consent statement.
Thank you for your support,
Carl C. Icahn
Alexander J. Denner
Peter S. Liebert
Barberry Corp.
High River Limited Partnership
Hopper Investments LLC
New York, New York
October 17, 2006
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IMPORTANT
PLEASE READ THIS CAREFULLY
1. If you hold your shares in your own name, please sign, date and mail the
enclosed WHITE consent card to D.F. King & Co., Inc in the postage-paid envelope
provided.
2. If your shares are held in the name of a brokerage firm, bank nominees or
other institution, only it can execute a consent representing your shares and
only on receipt of your specific instructions. Accordingly, you should contact
the person responsible for your account and give instructions for a WHITE
consent card to be signed representing your shares. We urge you to confirm in
writing your instructions to the person responsible for your account and provide
a copy of those instructions to us in care of D.F. King & Co., Inc so that we
will be aware of all instructions given and can attempt to ensure that those
instructions are followed.
If you have any questions or require any assistance in executing your consent,
please call:
D. F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Stockholders call toll-free: (800) 714-3313
Banks and Brokers call collect: (212) 269-5550
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OCTOBER 17, 2006
CONSENT SOLICITATION STATEMENT
OF
CARL C. ICAHN
ALEXANDER DENNER
PETER S. LIEBERT
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
AND
HOPPER INVESTMENTS LLC
Carl C. Icahn, Alexander J. Denner, Peter S. Liebert, Barberry Corp., High River
Limited Partnership and Hopper Investments LLC are furnishing this Consent
Solicitation Statement in connection with their solicitation of written consents
from the holders of common stock, par value $.001 per share (the "Shares"), of
ImClone Systems Incorporated, a Delaware corporation ("ImClone" or the
"Company"), to take the following actions without a stockholders' meeting in
accordance with Delaware law:
(1) remove without cause Vincent T. DeVita, Jr., M.D., John A. Fazio, Joseph L.
Fischer and William R. Miller from the Board of Directors of the Company (the
"Board") together with any other person or persons (other than the persons
elected pursuant to this proposed action by written consent) elected or
appointed to the Board of the Company prior to the effective date of these
Proposals to fill any newly created directorship or vacancy on the Board
("Proposal 1");
(2) elect Peter S. Liebert, M.D (the "Nominee") to fill one of the vacancies
resulting from Proposal 1 or one of the vacancies created by the Resignation to
serve as a member of the Board of the Company ("Proposal 2");
Each Proposal will be effective without further action when we deliver to
ImClone properly executed and dated and unrevoked written consents from the
holders of a majority of the issued and outstanding Shares on the record date
for this solicitation, please see "Consent Procedure" on page 17. According to
the Company's press release dated October 3, 2006, the Board of Directors has
fixed October 3, 2006 (the "Record Date"), as the record date for the
determination of the Company's stockholders who are entitled to execute,
withhold or revoke consents relating to this solicitation.
The purpose of the consent solicitation is to remove four directors and to elect
one new director to the Board. Mr. Icahn and Dr. Denner believe that if the
Proposals become effective and the Board is reconstituted as a result, the new
Board will be better suited to implement new strategies to maximize stockholder
value. There are no assurances that any of the Remaining Directors would remain
on the Board if the Proposals are approved.
THIS CONSENT SOLICITATION IS BEING MADE BY CARL C. ICAHN, ALEXANDER J. DENNER,
PETER S. LIEBERT, BARBERRY CORP. HIGH RIVER LIMITED PARTNERSHIP AND HOPPER
INVESTMENTS LLC AND NOT BY OR ON BEHALF OF THE COMPANY. WE ARE ASKING THE
STOCKHOLDERS OF THE COMPANY TO ACT BY WRITTEN CONSENT WITH RESPECT TO THESE
PROPOSALS ON THE ACCOMPANYING WHITE CONSENT CARD.
A consent solicitation such as this allows a company's stockholders to act by
submitting written consents to proposed stockholder actions in lieu of voting in
person or by proxy at an annual or special meeting of stockholders. To be
adopted by written consent, each Proposal needs to be approved by the holders of
a majority of the outstanding Shares on the Record Date for the solicitation.
For a description of the Record Date see "Consent Procedure" on page 17.
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For the Proposals to be effective, the Company must receive properly completed
and duly delivered unrevoked written consents to the Proposals from the holders
of a majority of the Shares then outstanding within 60 calendar days of the date
of the earliest dated consent delivered to the Company. See "Consent Procedure."
This Consent Solicitation Statement and the related WHITE consent card are first
being sent or given on or about October 17, 2006, to holders of Shares.
We urge you to vote in favor of the Proposals by signing, dating and returning
the enclosed WHITE consent card. The failure to sign and return a consent will
have the same effect as voting against the Proposals.
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TABLE OF CONTENTS
QUESTIONS AND ANSWERS ABOUT THIS CONSENT SOLICITATION 8
- -----------------------------------------------------
INFORMATION ON CARL C. ICAHN, ALEXANDER J. DENNER, BARBERRY HIGH RIVER 10
AND THE NOMINEE
- ----------------------------------------------------------------------
ADDITIONAL INFORMATION 14
- ----------------------
PROPOSAL NO. 1 REMOVAL OF VINCENT T. DEVITA, JR., M.D., JOHN A. FAZIO, 15
JOSEPH L. FISCHER AND WILLIAM R. MILLER
- ----------------------------------------------------------------------
PROPOSAL NO. 2 ELECTION OF NOMINEE 15
- ----------------------------------
VOTING SECURITIES 16
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APPRAISAL RIGHTS 16
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SOLICITATION OF CONSENTS 16
- ------------------------
CONSENT PROCEDURE 17
- -----------------
REVOCATION PROCEDURE 18
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SPECIAL INSTRUCTIONS 18
- --------------------
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QUESTIONS AND ANSWERS ABOUT THIS CONSENT SOLICITATION
The following are some of the questions you, as a stockholder, may have and
answers to those questions. The following is not meant to be a substitute for
the information contained in the remainder of this document, and the information
contained below is qualified by the more detailed descriptions and explanations
contained elsewhere in this document. We urge you to read this entire document
carefully prior to making any decision on whether to grant any consent
hereunder.
Q: Who is making the solicitation?
A: In addition to the Nominee (who is Peter S. Liebert, M.D), the participants
in this consent solicitation (the "Participants") are Carl C. Icahn,
Alexander J. Denner, Barberry Corp., a Delaware corporation ("Barberry"),
High River Limited Partnership, a Delaware limited partnership ("High
River") and Hopper Investments LLC, a Delaware limited liability company
("Hopper") (Mr. Icahn, Dr. Denner, Barberry and High River, collectively,
the "Icahn Parties"). Barberry, High River and Hopper are entities
controlled by Mr. Icahn. Each of Barberry and High River are principally
engaged in the business of holding and investing in securities. Hopper is
the general partner of High River. Hopper is primarily engaged in the
business of acting as the general partner of High River and holding and
investing in securities. Barberry is the sole member of Hopper. Barberry is
wholly-owned by Mr. Icahn.
Mr. Icahn and Dr. Denner are currently serving on the Board of Directors of
ImClone. Dr. Denner is employed by entities controlled by Mr. Icahn. None
of Mr. Icahn, Dr. Denner or Dr. Liebert will receive any payment or other
compensation in connection with this solicitation.
Q: What are you asking that the stockholders consent to?
A: We are asking you to act by written consent to approve the two Proposals.
Proposal 1 seeks to remove four members of the Board named in the proposal
and Proposal 2 seeks to elect one individual to fill one of the vacancies
resulting from Proposal 1 or one of the vacancies created by the
resignations of Mr. Kies and Mr. Crouse.
Q: Why are you soliciting stockholders' consent?
A: We are soliciting your written consent because we believe the current Board
as constituted and the current management team are not pursuing the most
effective plan to protect and enhance your investment in ImClone. We
believe much more can be done to maximize stockholder value and that it is
time for immediate change at both the Board and management level. We
believe the approval of our Proposals will provide the Company with a Board
that is better suited to take decisive steps to maximize stockholder value.
Q: Who is the Icahn Parties' Nominee?
A: Peter S. Liebert, M.D. The principal occupation and business experience of
Dr. Liebert is set forth under the section entitled "Proposal No. 2
Election of Nominee," which we urge you to read.
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Q: Who can act by written consent on the Proposals?
A: Stockholders on the record date for the solicitation are entitled to act by
written consent on the Proposals. According to the Company's press release
dated October 3, 2006, the Board of Directors has fixed October 3, 2006 as
the record date for the determination of the Company's stockholders who are
entitled to execute, withhold or revoke consents relating to this
solicitation, please see "Consent Procedure" on page 17.
Q: When is the deadline for submitting consents?
A: We urge you to sign, date and return your consent card as soon as possible
so that the four directors we are seeking to remove are removed and our
Nominee can be seated on the Board. In order for our Proposals to be
adopted, the Company must receive written unrevoked consents signed by a
sufficient number of stockholders to adopt the Proposals within 60 calendar
days of the date of the earliest dated consent delivered to the Company.
Because the Proposals will become effective upon our delivery to ImClone of
valid and unrevoked consent cards totaling more than 50% of the outstanding
Shares as of the record date, and because this may occur before the
expiration of the 60-day period, WE URGE YOU TO ACT PROMPTLY to assure that
your vote will count.
Q: How many consents must be granted in favor of the Proposals to adopt them?
A: These Proposals will be adopted and become effective when properly
completed, unrevoked consents are signed and dated by the holders of a
majority of the Shares outstanding on the record date for the solicitation
as set forth in "Consent Procedure" on page 19, provided that such consents
are delivered to the Company within 60 calendar days of the date of the
earliest dated consent delivered to the Company. The actual number of
Shares necessary to approve the Proposals will depend on the number of
Shares outstanding on the record date, as set forth in "Consent Procedure"
on page 17.
Q: What should I do to consent?
A: Sign, date and return the enclosed WHITE consent card today to D.F. King &
Co., Inc. in the enclosed postage-paid envelope. For your consent to be
valid, your consent card must be signed and dated.
Q: What should I do if I decide to revoke my consent?
A: An executed consent card may be revoked at any time before the action
authorized by the executed consent becomes effective by marking, dating,
signing and delivering a written revocation. A revocation may be in any
written form validly signed by the record holder as long as it clearly
states that the consent previously given is no longer effective. A later
dated consent card that is properly completed and delivered will revoke any
earlier dated consent. The revocation may be delivered either to the
Company or to the Icahn Parties, c/o D.F. King & Co., Inc., 48 Wall Street,
New York, NY 10005. We will promptly deliver any revocations we receive to
the Company. Although a revocation is effective if delivered to the
Company, we request that either the original or photostatic copies of all
revocations of consents be mailed or delivered to D.F. King & Co., Inc. at
the address set forth above, so that we will be aware of all revocations
and can more accurately determine if and when valid consents of a majority
of the outstanding Shares to the Proposals have been received for this
consent solicitation.
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Q: Whom should I call if I have questions about the solicitation?
A: Please call D.F. King & Co., Inc. at (800) 714-3313 (toll-free). Banks and
brokers may call collect at (212) 269-5550.
INFORMATION ON CARL C. ICAHN, ALEXANDER J. DENNER, PETER S. LIEBERT,
BARBERRY CORP., HIGH RIVER LIMITED PARTNERSHIP
AND HOPPER INVESTMENTS LLC
In addition to the Nominee (who is Peter S. Liebert, M.D), the participants
in this consent solicitation (the "Participants") are Carl C. Icahn, Alexander
J. Denner, Barberry, High River and Hopper.
Carl C. Icahn, age 70, has served as a Director of the Company since
September 20, 2006. Mr. Icahn has served as chairman of the board and a director
of Starfire Holding Corporation, a privately-held holding company, and chairman
of the board and a director of various subsidiaries of Starfire, since 1984.
Since, February 2005, Mr. Icahn has served as a director of CCI Onshore Corp.
and CCI Offshore Corp., which are in the business of managing private investment
funds, and from September 2004 to February 2005, Mr. Icahn served as the sole
member of their predecessors, CCI Onshore LLC and CCI Offshore LLC,
respectively. Mr. Icahn was also chairman of the board and president of Icahn &
Co., Inc., a registered broker-dealer and a member of the National Association
of Securities Dealers, from 1968 to 2005. Since 1994, Mr. Icahn has been the
principal beneficial stockholder of American Railcar Industries, Inc., currently
a publicly traded company that is primarily engaged in the business of
manufacturing covered hopper and tank railcars, and has served as chairman of
the board and as a director of American Railcar Industries, Inc. since 1994.
Since November 1990, Mr. Icahn has been chairman of the board of American
Property Investors, Inc., the general partner of American Real Estate Partners,
L.P., a public limited partnership controlled by Mr. Icahn that invests in real
estate and holds various other interests, including the interests in its
subsidiaries that are engaged, among other things, in the oil and gas business,
the casino entertainment business and the home textile business. Mr. Icahn has
been a director of Cadus Pharmaceutical Corporation, a firm that holds various
biotechnology patents, since 1993. From October 1998 through May 2004, Mr. Icahn
was the president and a director of Stratosphere Corporation, which operates the
Stratosphere Hotel and Casino. Since September 29, 2000, Mr. Icahn has served as
the chairman of the board of GB Holdings, Inc., which owns 41.7% of Atlantic
Coast Holdings, Inc., which through its wholly owned subsidiary owns and
operates The Sands casino in Atlantic City. Mr. Icahn has been chairman of the
board and a director of XO Holdings, Inc. since February 2006 and was chairman
of the board and a director of XO Communications, Inc. (XO Holdings'
predecessor) from January 2003 to February 2006. XO Holdings is a publicly
traded telecommunications services provider controlled by Mr. Icahn. In May
2005, Mr. Icahn became a director of Blockbuster Inc., a provider of in-home
movie rental and game entertainment. Mr. Icahn received his B.A. from Princeton
University. The business address of Mr. Icahn is 767 Fifth Avenue, Suite 4700,
New York, New York 10153.
Barberry, High River and Hopper are entities controlled by Carl C. Icahn.
Through his ownership of Barberry, High River and Hopper, Mr. Icahn indirectly
controls these entities.
The address of each of Barberry, High River and Hopper is White Plains
Plaza, 445 Hamilton Avenue, Suite 1210, White Plains, NY 10601.
As of the time of this filing Mr. Icahn and his affiliates are deemed to
beneficially own, in the aggregate, 11,670,188 Shares, (including 644 options
and in addition 25,000 options all of which Mr. Icahn received on September 20,
2006, as payment for outside director fees, as further described on Form 4,
filed on September 22, 2006, with the Securities and Exchange Commission by Mr.
Icahn and incorporated by reference hereto)
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representing approximately 13.80% of the Company's outstanding Shares (based
upon the 544,193 Shares stated to be outstanding as of September 29, 2006 by the
Company in the Company's Schedule 14A filed with the Securities and Exchange
Commission on October 13, 2006).
Each of Barberry and Hopper by virtue of their relationships to High River
are deemed to beneficially own (as that term is defined in Rule 13d-3 under the
Act) the 6,205,134 Shares which High River owns. Each of Barberry and Hopper
disclaims beneficial ownership of such Shares for all other purposes. Mr. Icahn
by virtue of his relationship to Barberry, Hopper and High River is deemed to
beneficially own (as that term is defined in Rule 13d-3 under the Act) the
900,800 Shares which Barberry owns and the 6,205,134 Shares which High River
owns. Mr. Icahn disclaims beneficial ownership of such Shares for all other
purposes.
Barberry is the sole member of Hopper. Hopper is the general partner of
High River. Beckton Corp., a Delaware corporation ("Beckton") is the sole
shareholder of American Property Investors Inc., a Delaware corporation ("API").
API is the general partner of both American Real Estate Holdings Limited
Partnership, a Delaware limited partnership ("AREH") and American Real Estate
Partners, L.P., a Delaware limited partnership ("AREP"), and AREP is a limited
partner of AREH owning a 99 percent limited partnership interest therein.
Barberry and Beckton are wholly-owned by Mr. Icahn. Mr. Icahn is (i) the sole
director of each of Barberry and Beckton (ii) Chairman of the Board and
President of Barberry and (iii) Chairman of the Board and President of Beckton.
As a result of Mr. Icahn's direct or indirect ownership of and position(s), as
applicable, with the Icahn Parties, Mr. Icahn is in a position to directly and
indirectly determine the investment and voting decisions made by the API, AREH,
AREP, Barberry, Beckton, High River and Hopper.
Each of Mr. Icahn, Beckton, API, and AREP, by virtue of their relationship
to AREH are deemed to beneficially own (as that term is defined in Rule 13d-3
under the Act) the 4,563,610 Shares that AREH owns. Each of Mr. Icahn, Beckton,
API, and AREP disclaim beneficial ownership of such Shares for all other
purposes.
Ms. Golden, the spouse of Mr. Icahn, is the beneficial owner of 15,000
Shares. Mr. Icahn, may be deemed to beneficially own (as that term is defined in
Rule 13d-3 under the Act) the 15,000 Shares which Ms. Golden owns. Mr. Icahn
disclaims beneficial ownership of such Shares for all purposes.
We expect that AREH, Barberry and High River will give its consent to
Proposals 1 and 2.
The purchase of the 11,669,544 Shares was made with the respective general
working capital of the purchasers and through margin borrowing. The Shares are
maintained in margin accounts that includes positions in securities in addition
to the Shares. The aggregate indebtedness of the margin accounts as of October
13, 2006 was approximately $662,274,566.64.
All transactions in the securities of ImClone effected within the past 2
years by each Participant are contained in Appendix I attached hereto except as
otherwise disclosed in this consent solicitation statement.
Alexander J. Denner, Ph.D., 37, has served as a director of the Company
since May 2006. Dr. Denner serves as a Managing Director of entities affiliated
with Carl Icahn, including Icahn Partners LP and Icahn Partners Master Fund LP.
Icahn Partners LP and Icahn Partners Master Fund LP are private investment
funds. From April 2005 to May 2006, Dr. Denner served as a portfolio manager
specializing in healthcare investments for Viking Global Investors. Previously
he served in a variety of roles at Morgan Stanley, beginning in 1996, including
as portfolio manager of healthcare and biotechnology mutual funds. Dr. Denner
currently serves as a director of HyperMed, Inc., a privately held company
specializing in imaging platforms for medical and surgical applications. Dr.
Denner received his S.B. degree from the Massachusetts Institute of Technology
and his M.S., M.Phil. and Ph.D. degrees from Yale University. The business
address of Dr. Denner is 767 Fifth Avenue, Suite 4700, New York, 10153.
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Alexander J. Denner, as payment for outside director fees received 3,315
Shares issuable upon the exercise of options exercisable as of October 14, 2006
During Dr. Denner's previous employment as a Portfolio Manager at Viking Global
Performance LLC ("Viking"), shares of ImClone were purchased and owned by
Viking. Those shares are not included herein as Dr. Denner's purchases during
the previous two years.
NOMINEE
PETER S. LIEBERT, M.D
Dr. Liebert has been a pediatric surgeon in private practice since 1968 and
is Chief, Pediatric Surgery of The Stamford Hospital, Stamford, CT. Since 1981
Dr. Liebert has been Clinical Associate Professor of Surgery at the College of
Physicians & Surgeons of Columbia University. Dr. Liebert is a former president
of the Westchester Medical Society and a former member of the Awards Jury of the
Lasker Foundation. Dr. Liebert is Chairman of the Board of Rx Vitamins, Inc. and
is a director of Cadus Corporation, a publicly held, drug discovery company
controlled by Carl C. Icahn. Dr. Liebert holds an M.D. from Harvard Medical
School and an A.B. from Princeton University.
Except as disclosed in this consent solicitation statement (including the
Annexes hereto), none of the Participants, Nominee, nor any of their respective
affiliates or associates, directly or indirectly:
o has had any relationship with the Company in any capacity other than as a
stockholder;
o has any agreement, arrangement or understanding with respect to any future
employment by the Company or its affiliates;
o has any agreement, arrangement or understanding with respect to future
transactions to which the Company or any of its affiliates will or may be a
party, or have any material interest, direct or indirect, in any
transaction that has occurred since January 1, 2005 or any currently
proposed transaction, or series of similar transactions, which the Company
or any of its affiliates was or is to be a party and in which the amount
involved exceeds $60,000;
o is, and was not within the past year, party to any contract, arrangement or
understandings with any person with respect to any securities of the
Company, including but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loans or guarantees of
profit, division of losses or profits or the giving or withholding of
proxies; or
o is a party adverse to the Company or any of its subsidiaries or has a
material interest adverse to the Company or any of its subsidiaries in any
material legal proceeding.
Agreements with Nominee
High River has entered into a letter agreement (the "Nominee Agreement")
with the Nominee: Dr. Peter S. Liebert. The Nominee Agreement is provides, among
other things, as follows:
o The Nominee acknowledges that he has agreed to stand for appointment as a
director of the Company in connection with a consent solicitation to remove
four directors of the Company and to appoint the Nominee.
-12-
o High River has agreed to pay the costs of the consent solicitation.
o High River has agreed to indemnify each Nominee from and against any losses
incurred by the Nominee arising from any action relating to such Nominee's
role as a nominee, absent gross negligence or willful misconduct.
-13-
ADDITIONAL INFORMATION
Certain information regarding the securities of ImClone held by ImClone's
Directors, management and 5% Stockholders is contained in ImClone's Proxy
Statement, filed on Schedule 14A with the Securities and Exchange Commission on
August 31, 2006, and such information is incorporated herein by reference.
The Board, if it is reconstituted as proposed in this Consent Statement,
may not immediately thereafter have a person who is independent and at the same
time has the financial sophistication that qualifies such person to be on the
audit committee of a NASDAQ-listed company under the last sentence of NASDAQ
Rule 4350(d)(2)(A). In such event, we expect that the reconstituted Board will
immediately start the search for such an individual, who, when found, will be
appointed to the Board.
The reconstituted Board may in the future reduce the Board to eliminate the
vacancies resulting from the Proposals or appoint one or more individuals to
fill some or all of such vacancies. In that regard, we have not determined what
course of action we would propose to the Board. In any event, any such action
would have to be taken by the Board consistent with its fiduciary duties to the
stockholders of the Company
ADOPTION OF THE PROPOSALS IS REQUIRED TO REMOVE FOUR DIRECTORS FROM THE
COMPANY'S CURRENT BOARD OF DIRECTORS, TO ADD ONE NOMINEE TO THE COMPANY'S BOARD
OF DIRECTORS. ACCORDINGLY, WE URGE YOU TO PROMPTLY SIGN, DATE AND MAIL THE
ENCLOSED WHITE CONSENT CARD. FAILURE TO SIGN AND RETURN YOUR CONSENT WILL HAVE
THE SAME EFFECT AS WITHHOLDING OR ABSTAINING ON THE CONSENT PROPOSALS.
-14-
PROPOSAL NO. 1
REMOVAL OF VINCENT T. DEVITA, JR., M.D., JOHN A. FAZIO,
JOSEPH L. FISCHER AND WILLIAM R. MILLER
This Proposal seeks the removal without cause of Vincent T. DeVita, Jr.,
M.D., John A. Fazio, Joseph L. Fischer and William R. Miller from the current
Board. This Proposal also seeks the removal of any other person or persons
(other than the persons elected pursuant to this proposed action by written
consent) elected or appointed to the Board of the Company prior to the effective
date of the Proposals to fill any newly-created directorship or vacancy on the
Board. This is intended to address the possibility that the current directors
might try to add directors to the Board who are aligned with them.
WE URGE YOU TO APPROVE THE REMOVAL OF SIX OF THE COMPANY'S DIRECTORS.
PROPOSAL NO. 2
ELECTION OF NOMINEE
Proposal 2 seeks to appoint Peter S. Liebert, M.D. to fill one of the
vacancies resulting from Proposal 1 or one of the vacancies created by the
Resignation. Dr. Liebert, has consented to being named as a Nominee and to serve
as a director, if appointed. If appointed, such Nominee will serve until the
next annual meeting of the Company's stockholders, and until his successor shall
have been duly elected and qualified or until his earlier death, resignation or
removal. Dr. Liebert has also consented to being named in this consent
solicitation statement.
NOMINEE
PETER S. LIEBERT, M.D
Dr. Liebert has been a pediatric surgeon in private practice since 1968 and
is Chief, Pediatric Surgery of The Stamford Hospital, Stamford, CT. From 1981 to
2006, Dr. Liebert was a Clinical Associate Professor of Surgery at the College
of Physicians & Surgeons of Columbia University. Dr. Liebert is a former
president of the Westchester Medical Society and a former member of the Awards
Jury of the Lasker Foundation. Dr. Liebert is Chairman of the Board of Rx
Vitamins, Inc. and is a director of Cadus Corporation, a publicly held, drug
discovery company controlled by Carl C. Icahn. Dr. Liebert holds an M.D. from
Harvard Medical School and an A.B. from Princeton University.
Please refer to "Nominee" section on page 12.
The above information has been furnished to us by the respective Nominee.
WE URGE YOU TO CONSENT TO THE APPOINTMENT OF THE NOMINEE.
-15-
VOTING SECURITIES
The Shares constitute the voting securities of the Company for purposes of
this consent solicitation.. According to the Company's latest Schedule 14A filed
with the SEC on August 31, 2006, the Company had 84,283,155 Shares of common
stock outstanding as of August 15, 2006. Cumulative voting is not permitted.
APPRAISAL RIGHTS
The Company's stockholders are not entitled to appraisal rights in
connection with these Proposals under Delaware law.
SOLICITATION OF CONSENTS
The members and agents of the Icahn Parties and the Nominee may solicit
consents. Consents will be solicited by mail, advertisement, telephone,
facsimile, other electronic means and in person. None of those persons will
receive additional compensation for their solicitation efforts.
In addition, we have retained D.F. King & Co., Inc. ("D.F. King") to assist
in this consent solicitation, for which services D.F. King will be paid a fee
not to exceed $150,000. D.F. King will also be reimbursed for its reasonable
out-of-pocket expenses. We have also agreed to indemnify D.F. King against
certain liabilities and expenses, including certain liabilities and expenses
under the federal securities laws. It is anticipated that between 75 to 100
persons will be employed by D.F. King to solicit stockholders.
Banks, brokers, custodians, nominees and fiduciaries will be requested to
forward solicitation material to beneficial owners of Shares. We will reimburse
banks, brokers, custodians, nominees and fiduciaries for their reasonable
expenses for sending solicitation material to the beneficial owners.
Our estimate of the total cost to be incurred in connection with this
consent solicitation described below is $500,000. To date, $100,000 has been
incurred in connection with this consent solicitation. We will bear the costs of
this consent solicitation. Costs related to the solicitation of consents may
include expenditures for attorneys, investment bankers, accountants, printing,
advertising, postage and related expenses and fees.
-16-
CONSENT PROCEDURE
Article I, Section 1.9 of the Amended and Restated By-Laws of the Company
(the "Bylaws") state that the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which date shall not be
more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date has been fixed by
the Board of Directors, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Company by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the Company
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Company's registered office shall be by hand or
by certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
Section 228 of the DGCL states that, unless the certificate of
incorporation of a Delaware corporation otherwise provides, any action required
to be taken at any annual or special meeting of stockholders of that
corporation, or any action that may be taken at any annual or special meeting of
those stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all shares entitled to vote thereon were present and
voted, and those consents are delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Consents must also bear the date of the signature of the
stockholder who signs the written consent. The Company's certificate of
incorporation, as amended, does not prohibit, and therefore permits, the
Company's stockholders to act by written consent. In addition, the Company's
Bylaws permit the Company's stockholders to act by written consent.
Section 213(b) of the DGCL provides that the record date for determining
the stockholders of a Delaware corporation entitled to consent to corporate
action in writing without a meeting, when no prior action by the corporation's
board of directors is required and the board has not fixed a record date, will
be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of the stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. This rule has not been modified by the Company's bylaws.
According to the Company's press release dated October 3, 2006, the Board
of Directors has fixed October 3, 2006 (the "Record Date") as the record date
for the determination of the Company's stockholders who are entitled to execute,
withhold or revoke consents relating to this solicitation.
According to the Company's latest Schedule 14A filed with the SEC on August
31, 2006, the Company had 84,283,155 Shares outstanding as of August 31, 2006.
Cumulative voting is not permitted. The actual number of consents necessary to
effect the Proposals will depend on the number of outstanding Shares on the
Record Date.
Each Proposal will become effective only if properly executed and dated
unrevoked consents to that Proposal are returned by holders of a majority of the
outstanding Shares return signed written consents within 60 days of the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is
-17-
delivered to the Company. Thus, this 60 day period will begin on the first date
that any stockholder of the Company delivers the first validly executed consent
or consents to the Company. High River, the record owner of 500 Shares, intends
to deliver its validly executed consent, with respect to such Shares to the
Company on October 19, 2006. In the event that High River's consent when so
delivered is the earliest validly executed and received consent by the Company,
the 60 day period will begin on October 19, 2006.
The failure to sign and return a consent will have the same effect as
voting against the Proposals.
If your Shares are registered in your own name, please sign, date and mail
the enclosed WHITE consent card to the Icahn Parties, c/o D.F. King & Co., Inc.
in the post-paid envelope provided. If your Shares are held in the name of a
brokerage firm, bank nominee or other institution, only it can sign a WHITE
consent card with respect to your Shares and only on receipt of specific
instructions from you. Accordingly, you should contact the person responsible
for your account and give instructions for a WHITE consent card to be signed
representing your Shares. We urge you to confirm in writing your instructions to
the person responsible for your account and to provide a copy of those
instructions to Icahn Parties c/o D.F. King & Co., Inc. so we will be aware of
all instructions given and can attempt to ensure that those instructions are
followed.
If you have any questions or require any assistance in executing your
consent, please call: D.F. King & Co., Inc. at (800) 714-3313. Banks and brokers
may call collect at (212) 269-5550.
If the Proposals become effective as a result of this consent solicitation,
prompt notice will be given under Section 228(e) of the DGCL to stockholders who
have not executed consents.
We will bear the costs of this consent solicitation. The consents are being
solicited in accordance with the applicable provisions of the DGCL. To be
effective, the requisite consents must be delivered to the Company within 60
days of the earliest dated consent delivered to the Company.
REVOCATION PROCEDURE
An executed consent card may be revoked at any time by properly marking,
dating, signing and delivering a written revocation before the time that the
action authorized by the previously executed consent becomes effective. A
revocation may be in any written form validly signed by the record holder as
long as it clearly states that the consent previously given is no longer
effective. The delivery of a later dated consent card that is properly completed
will constitute a revocation of any earlier consent. The revocation may be
delivered either to the Company or to the Icahn Parties, c/o D.F. King & Co.,
Inc. at 48 Wall Street, New York, NY 10005. We will promptly transmit all
revocations to the Company. Although a revocation is effective if delivered to
the Company, we request that either the original or photostatic copies of all
revocations of consents be mailed or delivered to D.F. King & Co., Inc. at the
address set forth above, so that we will be aware of all revocations and can
more accurately determine if and when valid consents of a majority of the
outstanding Shares to the Proposals have been received for this consent
solicitation.
SPECIAL INSTRUCTIONS
If you were a holder of record of the Shares on the first date on which a
signed written consent setting forth the action proposed to be taken is
delivered to the Company, you may elect to consent to, withhold consent to or
abstain with respect to each Proposal by marking the "CONSENT," "WITHHOLD
CONSENT" or "ABSTAIN" box, as applicable, underneath each Proposal on the
accompanying WHITE consent card and signing, dating and returning it promptly in
the enclosed post-paid envelope. In addition, you may withhold consent to the
removal of any individual director or the election of any individual Nominee by
writing that person's name on the consent card.
-18-
IF A STOCKHOLDER EXECUTES AND DELIVERS A WHITE CONSENT CARD, BUT DOES NOT
CHECK A BOX MARKED "CONSENT," "WITHHOLD CONSENT" OR "ABSTAIN" FOR A PROPOSAL,
THAT STOCKHOLDER WILL BE DEEMED TO HAVE CONSENTED TO THAT PROPOSAL, EXCEPT THAT
THE STOCKHOLDER WILL NOT BE DEEMED TO CONSENT TO EITHER 1) THE REMOVAL OF ANY
DIRECTOR WHOSE NAME IS WRITTEN IN THE SPACE THE APPLICABLE INSTRUCTION TO THE
REMOVAL PROPOSAL PROVIDES ON THE CARD OR 2) THE ELECTION OF THE NOMINEE WHOSE
NAME IS WRITTEN IN THE SPACE THE APPLICABLE INSTRUCTION TO THE ELECTION PROPOSAL
PROVIDES ON THE CARD.
YOUR CONSENT IS IMPORTANT. PLEASE SIGN AND DATE THE ENCLOSED WHITE CONSENT
CARD AND RETURN IT IN THE ENCLOSED POST-PAID ENVELOPE PROMPTLY. YOU MUST DATE
YOUR CONSENT IN ORDER FOR IT TO BE VALID. FAILURE TO SIGN, DATE AND RETURN YOUR
CONSENT WILL HAVE THE SAME EFFECT AS VOTING AGAINST THE PROPOSALS.
If your Shares are held in the name of a brokerage firm, bank nominee or
other institution, only it can execute a consent with respect to those Shares
and only on receipt of specific instructions from you. Thus, you should contact
the person responsible for your account and give instructions for the WHITE
consent card to be signed representing your Shares. You should confirm in
writing your instructions to the person responsible for your account and provide
a copy of those instructions to the Icahn Parties c/o D.F. King & Co., Inc., 48
Wall Street, New York, NY 10005, so that we will be aware of all instructions
given and can attempt to ensure that those instructions are followed.
If you have any questions or require any assistance in executing your
consent, please call:
D. F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Stockholders call toll-free: (800) 714-3313
Banks and Brokers call collect: (212) 269-5550
Dated: October 17, 2006
-19-
ANNEX I
In the last two years the Icahn Parties have purchased or sold the following
securities of the Company.
AREH
Buy/Sell Date Amount
- -------- ---- ------
Buy 1/31/2005 102,268
Buy 2/1/2005 6,531
Buy 2/2/2005 201,201
Buy 2/3/2005 135,671
Buy 4/4/2005 32,500
Buy 4/5/2005 69,700
Buy 4/7/2005 3,074
Buy 4/13/2005 500,000
Buy 4/14/2005 365,000
Buy 4/15/2005 66,750
Buy 8/10/2005 62,164
Buy 8/11/2005 33,701
Buy 8/12/2005 27,333
Buy 8/16/2005 41,784
Buy 8/17/2005 52,080
Buy 8/18/2005 29,760
Buy 9/19/2005 100,000
Buy 9/20/2005 160,000
Buy 9/21/2005 132,500
Buy 9/22/2005 40,500
Buy 9/23/2005 10,464
Buy 9/26/2005 56,536
Buy 9/27/2005 16,886
Buy 9/28/2005 3,200
Buy 11/3/2005 500,000
Buy 11/4/2005 50,000
Buy 11/10/2005 6,000
Buy 11/11/2005 120,000
Buy 4/13/2006 70,000
Buy 4/17/2006 30,000
Buy 5/4/2006 150,000
Buy 5/5/2006 47,527
Buy 6/7/2006 107,428
Buy 6/8/2006 75,065
Buy 8/11/2006 48,540
Buy 8/11/2006 393,534
Buy 8/14/2006 97,768
Buy 8/15/2006 104,028
Buy 8/16/2006 40,758
Buy 8/17/2006 30,152
Buy 8/18/2006 46,610
Buy 8/21/2006 8,995
Buy 8/22/2006 29,738
Buy 8/22/2006 39,107
-20-
Buy 8/24/2006 35,682
Buy 8/25/2006 26,164
Buy 8/28/2006 6,157
Buy 9/13/2006 234,642
Buy 9/14/2006 16,112
High River
Buy/Sell Date Amount
- -------- ---- ------
Buy 10/28/2004 500,000
Buy 10/29/2004 400,000
Buy 1/14/2005 123,262
Buy 1/24/2005 149,500
Buy 1/26/2005 149,909
Buy 1/28/2005 300,000
Buy 8/10/2005 190,742
Buy 8/11/2005 102,192
Buy 8/12/2005 83,868
Buy 8/16/2005 128,216
Buy 8/17/2005 157,920
Buy 8/18/2005 90,240
Buy 8/11/2006 75,581
Buy 8/11/2006 612,766
Buy 8/14/2006 152,232
Buy 8/15/2006 161,981
Buy 8/16/2006 63,464
Buy 8/17/2006 46,948
Buy 8/18/2006 72,577
Buy 8/21/2006 14,005
Buy 8/22/2006 46,304
Buy 8/22/2006 60,893
Buy 8/24/2006 55,560
Buy 8/25/2006 40,740
Buy 8/28/2006 9,588
Buy 9/13/2006 365,358
Buy 9/14/2006 25,088
-21-
[FORM OF CONSENT CARD]
CONSENT OF STOCKHOLDERS OF IMCLONE SYSTEMS INCORPORATED
TO ACTION WITHOUT A MEETING
THIS CONSENT IS SOLICITED BY CARL C. ICAHN, ALEXANDER J. DENNER,
PETER S. LIEBERT, BARBERRY CORP., HIGH RIVER LIMITED PARTNERSHIP AND
HOPPER INVESTMENTS LLC AND NOT BY OR ON BEHALF OF
IMCLONE SYSTEMS INCORPORATED OR ITS BOARD OF DIRECTORS
Unless otherwise indicated below, the undersigned, a stockholder of record
of ImClone Systems Incorporated (the "Company") on October 3, 2006, hereby
consents pursuant to Section 228(a) of the Delaware General Corporation Law with
respect to all shares of common stock, par value $.001 per share (the "Shares"),
held by the undersigned to the taking of the following actions without a meeting
of the stockholders of the Company:
IF NO BOX IS MARKED FOR PROPOSAL 1 AND THIS CARD IS PROPERLY SIGNED, DATED AND
DELIVERED, THE UNDERSIGNED WILL BE DEEMED TO CONSENT TO SUCH PROPOSAL, EXCEPT
THAT THE UNDERSIGNED WILL NOT BE DEEMED TO CONSENT TO THE REMOVAL OF ANY CURRENT
DIRECTOR OR TO THE ELECTION OF ANY NOMINEE WHOSE NAME IS WRITTEN IN THE SPACE
PROVIDED. CARL C. ICAHN, ALEXANDER J. DENNER, PETER S. LIEBERT, BARBERRY CORP.,
HIGH RIVER LIMITED PARTNERSHIP AND HOPPER INVESTMENTS LLC RECOMMEND THAT YOU
CONSENT TO PROPOSALS 1 AND 2.
- -------
1. The removal without cause of Vincent T. DeVita, Jr., M.D., John A.
Fazio, Joseph L. Fischer and William R. Miller as directors of the
Company and any other person or persons (other than the persons
elected pursuant to this proposed action by written consent) elected
or appointed to the Board of the Company prior to the effective date
of these Proposals.
|-| |-| |-|
Consent Withhold Consent Abstain
INSTRUCTION: TO CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO THE
REMOVAL OF ALL THE ABOVE-NAMED DIRECTORS, CHECK THE APPROPRIATE BOX ABOVE. IF
YOU WISH TO APPROVE THE REMOVAL OF CERTAIN OF THE ABOVE-NAMED PERSONS, BUT NOT
ALL OF THEM, CHECK THE "CONSENT" BOX ABOVE AND WRITE THE NAME OF EACH SUCH
PERSON YOU DO NOT WISH REMOVED IN THE FOLLOWING SPACE:
WITHOLDING OR ABSTAINING ON THIS PROPOSAL WILL HAVE THE SAME EFFECT AS NOT
CONSENTING
2. The appointment of Peter S. Liebert, M.D. as a director of the Company
to fill one of the vacancies resulting from Proposal 1 or one of the
vacancies created by the Resignation:
|-| |-| |-|
Consent Withhold Consent Abstain
INSTRUCTION: TO CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO THE
ELECTION OF THE ABOVE-NAMED PERSON, CHECK THE APPROPRIATE BOX ABOVE.
WITHOLDING OR ABSTAINING ON THIS PROPOSAL WILL HAVE THE SAME EFFECT AS NOT
CONSENTING
(IN THE ABSENCE OF DISSENT OR ABSTENTION BEING INDICATED ABOVE, THE UNDERSIGNED
HEREBY CONSENTS TO EACH ACTION LISTED ABOVE. )
FOR YOUR CONSENT TO BE VALID, IT MUST BE DATED.
Date: -----------------------------------------, 2006
------------------------------------------------------
Signature
------------------------------------------------------
Signature (if held jointly)
Title(s): -------------------------------------------
Please sign exactly as name appears on stock certificates or on label affixed
hereto. When shares are held by joint tenants, both should sign and date. In
case of joint owners, EACH joint owner should sign and date. When signing as
attorney, executor, administrator, trustee, guardian, corporate officer, etc.,
give full title as such.
THIS CONSENT IS SOLICITED BY CARL C. ICAHN, ALEXANDER J. DENNER, PETER S.
LIEBERT, BARBERRY CORP., HIGH RIVER LIMITED PARTNERSHIP AND HOPPER INVESTMENTS
LLC AND NOT BY OR ON BEHALF OF IMCLONE SYSTEMS INCORPORATED OR ITS BOARD OF
DIRECTORS
PLEASE SIGN, DATE AND MAIL YOUR CONSENT PROMPTLY IN THE POSTAGE-PAID ENVELOPE
ENCLOSED.