Exhibit (d)(11)
May 19, 2001
ImClone Systems Incorporated
180 Varick Street
New York, NY 10014
Attention: John B. Landes
General Counsel
Ladies and Gentlemen:
In connection with the mutual consideration of a possible transaction
(hereinafter "Transaction") involving ImClone Systems Incorporated and/or its
subsidiaries or affiliates (the "Company") and Bristol-Myers Squibb Company
and/or its subsidiaries or affiliates, each party hereto may make available to
the other party (or may have previously made available to the other party after
May 19, 2000) certain proprietary and confidential information concerning its
businesses, financial condition, operations, and assets and liabilities and/or
the business, financial condition, operations, and assets and liabilities of
certain of its subsidiaries or affiliate. As a condition to such information
being made available to the receiving party and its directors, officers,
employees, agents, advisors or affiliates (including, without limitation,
attorneys, accountants, consultants, bankers and financial advisors)
(collectively, "Representatives"), the receiving party agrees to treat any such
proprietary and confidential information concerning the disclosing party
(whether prepared by the disclosing party, its Representatives or otherwise)
which is furnished after the date hereof or was previously furnished after May
19, 2000, in each case by or on behalf of the disclosing party and which is
proprietary and confidential at the time of disclosure (said information herein
collectively referred to as the "Evaluation Material") in accordance with the
provisions of this letter agreement, and to take or abstain from taking certain
other actions hereinafter set forth.
Each party hereto agrees that it shall, and shall cause its Representatives to,
use the Evaluation Material of the disclosing party solely for the purpose of
evaluating a Transaction, keep the Evaluation Material of the disclosing party
confidential, and not disclose such Evaluation Material to any other person;
provided, however, that (i) the receiving party may make any disclosure of such
information to which the disclosing party gives its prior written consent and
John B. Landes, Esq.
May 19, 2001
Page 2
(ii) any of such information may be disclosed by the receiving party to its
Representatives who need to know such information for the purpose of evaluating
a Transaction between the parties, who shall keep such information
confidential. In any event, each party shall be responsible for any breach of
this letter agreement by any of its Representatives and each party agrees, at
its sole expense, to take all reasonable measures to restrain its
Representatives from prohibited or unauthorized disclosure of the Evaluation
Material.
Each party hereto agrees that, without the prior written consent of the other,
it and its Representatives will not disclose to any person the fact that
Evaluation Material has been exchanged, or that discussions or negotiations are
taking place concerning a Transaction involving the parties or any of their
subsidiaries or affiliates, unless advised by counsel that such disclosure is
required by law and then only with as much prior written notice to the other
party as is practical under the circumstances. The term "person" as used in
this letter agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity.
If either party hereto decides that it does not wish to proceed with the
Transaction it will promptly inform the other party of that decision. In that
case, or at any time upon the request of either party for any reason, each
party will promptly return to the other all written Evaluation Materials (and
all copies thereof) previously furnished to it or its Representatives by or on
behalf of the other party pursuant hereto and will destroy all portions of any
notes, analyses, compilations, or other documents prepared by or for the
receiving party that contain, reveal or reflect such Evaluation Material. Upon
written request, the return and destruction of the Evaluation Material pursuant
to this paragraph shall be confirmed in writing to the disclosing party by the
receiving party. Notwithstanding the return or destruction of the other party's
Evaluation Material, each party and its Representatives will continue to be
bound by the obligations of confidentiality and nondisclosure hereunder.
Each party hereto acknowledges that neither party nor any of its
Representatives makes any representation or warranty as to the accuracy or
completeness of the Evaluation Material and neither party shall have any
liability to the other party or to any of its Representatives relating to or
resulting from the use of the other party's Evaluation Material in connection
with the evaluation of a Transaction.
The term "Evaluation Material" as used in this letter agreement does not
include information which (i) is or becomes generally available to the public
or in the public domain other than as a result of a disclosure by the receiving
party or its Representatives, (ii) was within the possession of the receiving
party prior to its being furnished by or on behalf of the disclosing party
pursuant hereto, provided that the source of such information was not known by
the receiving party to be
John B. Landes, Esq.
May 19, 2001
Page 3
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the disclosing party or any other
party with respect to such information, (iii) becomes available to the
receiving party on a non-confidential basis from a source other than the
disclosing party or any of its Representatives, provided that such source is
not known by the receiving party after due inquiry to be bound by a
confidentiality agreement with the disclosing party or any party with respect
to such information, or (iv) is derived or developed by the receiving party
without violating any of its obligations hereunder.
We agree that, for a period of one year from the date of this letter agreement,
none of our officers, directors or employees who has knowledge of this letter
agreement or the matters contemplated hereby will directly or indirectly
solicit for employment or hire any officer, director or employee of the Company
with whom we have had contact or who became known to us in connection with our
consideration of a Transaction; provided, however, that we shall not be
precluded from hiring any such person who (i) initiates discussions regarding
such employment without direct or indirect solicitation by us or (ii) responds
to any public advertisement placed by us in a newspaper or a journal of general
circulation.
You agree that, for a period of one year from the date of this letter
agreement, none of your officers, directors or employees who has knowledge of
this letter agreement or the matters contemplated hereby will directly or
indirectly solicit for employment or hire any officer, director or employee of
Bristol-Myers Squibb Company and/or its subsidiaries or affiliates with whom
you have had contact or who became known to you in connection with your
consideration of a Transaction; provided, however, that you shall not be
precluded from hiring any such person who (i) initiates discussions regarding
such employment without direct or indirect solicitation by you or (ii) responds
to any public advertisement placed by you in a newspaper or a journal of
general circulation.
We agree that, for a period of two years from the date of this letter
agreement, neither we nor any of our affiliates or Representatives will,
without the prior written consent of the Company or its Board of Directors: (i)
acquire, offer to acquire, or agree to acquire, directly or indirectly by
purchase or otherwise, any voting securities or direct or indirect rights to
acquire any voting securities of the Company, or any assets of the Company;
(ii) offer to enter into any merger, business combination, recapitalization,
restructuring or other extraordinary transaction involving the Company; (iii)
make, or in any way participate in, directly or indirectly, any "solicitation"
of "proxies" (as such terms are used in the rules of the Securities Exchange
Commission) to vote, or seek to advise or influence any person or entity with
respect to the voting of, any voting securities of the Company, (iv) make or
cause the Company to make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any extraordinary
transaction involving the Company or its securities or assets; (v) form, join
or in any way participate in a
John B. Landes, Esq.
May 19, 2001
Page 4
"group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended) in connection with any of the foregoing, (vi) otherwise act, alone
or in concert with others, to seek to control or influence the management or
the policies of the Company or (vii) request the Company or any of its
Representatives, directly or indirectly, to amend or waive any provision of
this paragraph. We will promptly advise the Company of any inquiry or proposal
made to us with respect to any of the foregoing. Notwithstanding the provisions
of the foregoing paragraph, (i) the acquisition of any of the Company's
securities, businesses or assets by any assets by any person not controlled by
us (e.g., employee retirement plan), or (ii) contact by us with any successor
in interest to the Company, its securities (in a transaction of the type
contemplated by this letter agreement), businesses or assets regarding such
successor's interests, shall not constitute a breach of this paragraph.
This letter agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes in its entirety the letter
agreement between the parties hereto dated May 19, 2000. The parties agree that
unless and until a definitive agreement regarding a Transaction between the
parties has been executed and delivered, neither party will be under any legal
obligation of any kind whatsoever with respect to such a Transaction by virtue
of this letter agreement or any other oral or written expression of interest
and each party hereby waives, in advance, any claims (including, without
limitation, claims for breach of contract), except with respect to the matters
specifically agreed to herein. Without limiting the generality of the
foregoing, the parties agree that each party reserves the right, in its sole
discretion, to reject any and all proposals made by the other party with regard
to a Transaction between the parties and to terminate discussions and
negotiations at any time.
The parties hereto acknowledge that remedies at law may be inadequate to
protect us against any actual or threatened breach of this letter agreement by
the other party or by their Representatives, and, without prejudice to any
other rights and remedies otherwise available to the parties, agree that each
of the parties shall be entitled to seek injunctive relief. In the event of
litigation relating to this letter agreement, the prevailing party following a
final, nonappealable court decision shall be entitled to reimbursement by the
other party of its reasonable costs and expenses (including, without
limitation, reasonable legal fees and expenses) incurred in connection with
such litigation.
This letter agreement shall be governed by and construed in accordance with the
laws of the State of New York. This letter agreement shall be binding on and
inure to the benefit of each party's successors and assigns, but may not be
assigned without the prior written consent of the other party. No failure or
delay by either party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or any other right,
power or privilege hereunder. No amendment
John B. Landes, Esq.
May 19, 2001
Page 5
or modification of this letter agreement shall be effective unless set forth in
a written instrument executed by each party hereto. Except as otherwise
expressly provided herein, all obligations, rights and privileges under this
letter agreement shall terminate five (5) years from the date hereof.
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter agreement to the undersigned.
Very truly yours,
BRISTOL-MYERS SQUIBB COMPANY
By: /s/ Brian A.Markison
------------------------
Brian A. Markison
Senior Vice President -
External Development
Accepted and agreed to as of the
date first written above:
IMCLONE SYSTEMS INCORPORATED
By: /s/ John B. Landes
----------------------
John B. Landes
General Counsel