SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities
Exchange
Act of 1934 (Amendment No. )
Filed by
the Registrant o
Filed by
a Party other than the Registrant x
Check the
appropriate box:
| o |
Preliminary
Proxy Statement |
| o |
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2)) |
| o |
Definitive
Proxy Statement |
| o |
Definitive
Additional Materials |
| x |
Soliciting
Material under Rule 14a-12 |
ImClone
Systems Incorporated
(Name of
Registrant as Specified In Its Charter)
Bristol-Myers
Squibb Company
(Name of
Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
|
|
|
|
x
|
No
fee required.
|
|
o
|
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 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:
|
|
|
|
|
o
|
Fee
paid previously with preliminary materials.
|
|
o
|
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.:
|
On
September 23, 2008, Bristol-Myers Squibb Company sent the following question and
answer sheet to certain of its employees:
Q
1: Why did you raise your offer?
A
1: We made our initial offer nearly 2 months ago. We
increased our offer to end a protracted period of uncertainty among ImClone
stockholders, employees and other constituents that could hurt the intrinsic
value of ImClone’s assets. There needs to be an orderly and
transparent process with a clearly delineated timeline to resolve ImClone’s
future, particularly in light of the extraordinary market
conditions.
Q
2: Have there been discussions with Mr. Icahn?
A
2: While our financial advisers have attempted several times to have
discussions with ImClone’s financial advisors, there has not been any meaningful
dialogue regarding our proposal with ImClone or its advisors.
Q
3: Why $62, when ImClone has an offer for $70?
A
3: We made our initial offer nearly 2 months ago and ImClone
announced nearly 2 weeks ago that an unnamed party had submitted a conditional
preliminary proposal to acquire ImClone. We increased our offer to
end a protracted period of uncertainty among ImClone stockholders, employees and
other constituents that could hurt the intrinsic value of ImClone’s
assets. There needs to be an orderly and transparent process with a
clearly delineated timeline to resolve ImClone’s future, particularly in light
of the extraordinary market conditions.
Q
4. Will ImClone’s poison pill provision pre-empt this next attempt of BMS to
acquire ImClone?
A
4. We intend to file a preliminary consent solicitation statement to
solicit written consents from ImClone stockholders to remove the current Board
of Directors and to replace them with five highly qualified nominees proposed by
Bristol-Myers. We are taking this action to ensure the current
ImClone Board does not refuse to satisfy the conditions of our
offer. One of the conditions of our tender offer is the removal of
ImClone’s poison pill.
Q
5. What are ImClone’s proportional voting rights and how does this
affect the tender offer?
A
5. We intend to file a preliminary consent solicitation statement to
solicit written consents from ImClone stockholders to remove the current Board
of Directors and to replace them with five highly qualified nominees proposed by
Bristol-Myers. We are taking this action to ensure the current
ImClone Board does not refuse to satisfy the conditions of our offer. One of the
conditions of the tender offer is the removal of a provision under the current
stockholder rights agreement with ImClone that requires us to vote the shares of
ImClone that we own in any vote to remove or elect directors proportionately
with the votes of the other shareholders. One of the conditions of
the tender offer is the removal of this requirement.
Q
6. How long will it take BMS to launch the tender offer?
A
6. We intend to commence a tender offer within approximately one
week.
Q
7. What if ImClone’s BOD rejects this offer? Will you give
up? What’s your next move?
A
7. As we’ve said, we believe ImClone shareholders should be permitted
to evaluate the merits of our proposal and have a direct say in the future of
ImClone. To facilitate this, we plan to initiate a tender offer and
to file a preliminary consent solicitation statement with the SEC to remove all
the members of the current ImClone Board and replace them with five highly
qualified nominees.
Q
8. What is BMS’s offer ceiling for ImClone?
A
8. It would not be appropriate for me to speculate on
that.
Q
9. Who are your advisers?
A 9.
Morgan Stanley &
Company Inc., Citigroup Global Markets, Inc. and Credit Suisse Securities (USA)
LLC are serving as financial advisors to Bristol-Myers Squibb in connection with
the proposed acquisition. Cravath, Swaine & Moore LLP is acting as legal
counsel to Bristol-Myers Squibb.
******
On
September 23, 2008, Bristol-Myers Squibb Company sent the following email to its
employees:
Jim
Cornelius on ImClone Offer
September
23, 2008
Dear
Colleague:
Nearly
two months have elapsed since we made our initial offer to buy the shares of
ImClone that we didn’t already own. The ImClone Board of Directors has rejected
our $60/share all cash offer as inadequate and looked for another
bidder.
We have
made several attempts to hold discussions with ImClone and/or its advisors but
these attempts have yielded no meaningful progress.
Consequently,
yesterday our Board of Directors authorized a tender offer directly to ImClone
shareholders at an increased price of $62/share, and we announced our intention
to commence that tender offer.
We have
raised our offer in an attempt to avoid a protracted period of uncertainty,
which could hurt the intrinsic value of ImClone’s assets, particularly in light
of the extraordinary market conditions.
We
continue to be open to discussing with ImClone and its advisors the merits of
our proposal in order to reach a definitive merger agreement. We feel it is in
the best interests of all constituents to have a transparent and orderly process
and allow ImClone shareholders a direct voice.
Our
company has a unique and deep knowledge of Erbitux, and of the significant
regulatory and financial investment required to maximize its value, as well as
ImClone’s undeveloped early stage clinical and preclinical compounds. Combined
with our existing oncology portfolio, as well as the assets we are developing,
we believe patients will benefit from this transaction.
Attached
is the press release we issued late yesterday. We will continue to update you as
appropriate.
Best
regards,
Jim
[Link to company's news
release]
******
Important
Information about the Tender Offer
The
tender offer described in the documents set forth above has not yet commenced,
and these documents are neither an offer to purchase nor a solicitation of an
offer to sell ImClone common stock. The solicitation and offer to buy ImClone’s
common stock will only be made pursuant to an offer to purchase and related
materials that Bristol-Myers Squibb intends to file promptly with the
SEC.
Investors
and security holders are urged to read any such disclosure documents that will
be filed with the SEC, including the tender offer statement, regarding the
proposed transaction referenced in the foregoing information, because they will
contain important information. Investors and security holders will be able to
obtain a free copy of the disclosure documents (when they are available) and
other documents filed by Bristol-Myers Squibb with the SEC at the SEC's website
at www.sec.gov. In addition, documents filed with the SEC by Bristol-Myers
Squibb may be obtained free of charge from Bristol-Myers Squibb by directing a
request to Stockholder Services, Bristol-Myers Squibb Company, 345 Park Avenue,
New York, New York 10154 or by calling (212) 546-3309 or by making a request to
Bristol-Myers Squibb’s information agent, Mackenzie Partners, Inc. at
800-322-2885.
Important
Information about the Consent Solicitation
The
documents set forth above are not a substitute for any disclosure documents,
including the consent solicitation statement, Bristol-Myers Squibb will file
with the SEC and send to ImClone stockholders in connection with the
solicitation of the stockholders of ImClone or in connection with any business
combination transaction with ImClone, as required.
Investors
and security holders are urged to read the consent solicitation statement
relating to the solicitation of consents of ImClone’s stockholders when it
becomes available, because it will contain important information. Bristol-Myers
Squibb intends to file a preliminary consent solicitation statement with the SEC
and intends to file a definitive consent solicitation statement as soon as
practicable thereafter. Investors and security holders will be able to obtain a
free copy of the preliminary consent solicitation statement (when it is
available), the definitive consent solicitation statement (when it is available)
and other documents that Bristol-Myers Squibb files with the SEC at its website
at www.sec.gov. In addition, documents filed with the SEC by Bristol-Myers
Squibb may be obtained free of charge from Bristol-Myers Squibb by directing a
request to Stockholder Services, Bristol-Myers Squibb Company, 345 Park Avenue,
New York, New York 10154 or by calling (212) 546-3309 or by making a request to
Bristol-Myers Squibb’s consent solicitor, Mackenzie Partners, Inc. at
800-322-2885.
Bristol-Myers
and certain of its officers and directors and other persons may be deemed to be
participants in the solicitation of ImClone’s stockholders. As of September 23,
2008, Bristol-Myers is the beneficial owner of 14,392,003 shares of ImClone
common stock. Information
regarding Bristol-Myers’ directors and executive officers is available in its
Annual Report on Form 10-K for the year ended December 31, 2007, which was filed
with the SEC on February 21, 2008, and its Proxy Statement for its 2008 Annual
Meeting of Stockholders, which was filed with the SEC on March 24,
2008.
Forward-Looking
Statements
The
documents set forth above contain certain forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995 regarding, among
other things, statements relating to a proposal to acquire ImClone, future
financial performance and the company’s business strategy. These statements may
be identified by the fact that they use words such as “anticipate”, “estimates”,
“should”, “expect”, “guidance”, “project”, “intend”, “plan”, “believe” and other
words and terms of similar meaning in connection with any discussion of future
operating or financial performance. Such forward-looking statements are based on
current expectations and involve inherent risks and uncertainties, including
factors that could delay, divert or change any of them, and could cause actual
outcomes and results to differ materially from current expectations. These
factors include, among other things, the risk that the proposed transaction will
not be completed and the company’s ability to execute successfully its strategic
plans. For further details and a discussion of these and other risks and
uncertainties, see the company's periodic reports, including the annual report
on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K,
filed with or furnished to the SEC. The company undertakes no obligation to
publicly update any forward-looking statement, whether as a result of new
information, future events or otherwise.