EXECUTION COPY
TENDER AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT (this "Agreement"), dated as of October
6, 2008, is entered into by and among the entities listed on Schedule I hereto
(each, a "Stockholder") and ▇▇▇ ▇▇▇▇▇ and Company, an Indiana corporation
("Parent").
WHEREAS, contemporaneously with the execution of this Agreement, Parent,
Alaska Acquisition Corporation, a Delaware corporation (the "Purchaser"), and
ImClone Systems Incorporated, a Delaware corporation (the "Company"), are
entering into an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"), providing, among other things, for (i) an offer by the
Purchaser (the "Offer") to purchase all of the outstanding shares of common
stock, par value $0.001 per share, of the Company (the "Company Common Stock")
and the associated preferred stock purchase rights issued in connection with and
subject to the Rights Agreement, dated as of February 15, 2002 and amended on
May 4, 2006, between the Company and EquiServe Trust Company, N.A., as Rights
Agent (which rights, together with the shares of the Company Common Stock, are
hereinafter referred to as the "Shares"), at a price per Share of $70.00 (such
amount or any different amount per Share that may be paid pursuant to the Offer,
the "Offer Price") and (ii) following the acceptance for payment of Shares
pursuant to the Offer, the merger of the Purchaser with and into the Company
(the "Merger") pursuant to which all then outstanding Shares will be converted
into the right to receive the Offer Price;
WHEREAS, each Stockholder is the beneficial owner of such number of Shares
set forth opposite such Stockholder's name on Schedule I hereto (such Shares,
together with any other Equity Interests in the Company beneficially owned by
such Stockholder and any other Shares and any other Equity Interests in the
Company of which such Stockholder obtains beneficial ownership after the date
hereof, being collectively referred to herein as the "Covered Shares" of such
Stockholder); and
WHEREAS, as a condition of and material inducement to Parent's and the
Purchaser's willingness to enter into the Merger Agreement, each of the
Stockholders has agreed to enter into this Agreement and tender and vote its
Covered Shares as described herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and in the Merger Agreement, and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Certain Definitions. For the purposes of this Agreement, unless the
context otherwise requires, capitalized terms used and not otherwise defined in
this Agreement shall have the respective meanings ascribed to them in this
Section 1, or if no meaning is ascribed in this Section 1 or elsewhere in this
Agreement, then such terms shall have the respective meanings ascribed to them
in the Merger Agreement.
"affiliate" has the meaning set forth in the Merger Agreement;
provided, however, that the Company shall be deemed not to be an affiliate
of Stockholder for purposes of this Agreement.
"beneficial ownership" (and related terms such as "beneficially owned"
or "beneficial owner") has the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Transfer" means, with respect to any Equity Interest or other
security, including the Covered Shares, the direct or indirect transfer,
pledge, hypothecation, encumbrance, assignment or other disposition
(whether by sale, merger, consolidation, liquidation, dissolution,
dividend, distribution or otherwise) of such Equity Interest or other
security or the beneficial ownership thereof, the offer to make such a
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing.
As a verb, "Transfer" shall have a correlative meaning.
2. Stockholder Vote.
(a) Voting Agreement. At any meeting of the stockholders of the
Company, however called, or at any adjournment thereof, or in any other
circumstance in which the vote, consent or other approval of the
stockholders of the Company is sought (in writing or otherwise), each
Stockholder shall, and shall instruct any holder of record of such
Stockholder's Covered Shares (except to the extent such Covered Shares have
been tendered to Purchaser in the Offer) to, (i) appear at each such
meeting or otherwise cause all of such Stockholder's Covered Shares to be
counted as present thereat for purposes of calculating a quorum and (ii)
vote (or instruct to be voted), or execute and deliver a written consent
(or cause a written consent to be executed and delivered) covering, all
such Covered Shares (A) in favor of adopting the Merger Agreement
(including for the purposes of this Section 2(a), as it may be modified or
amended from time to time), and the approval of the Merger and each of the
other transactions contemplated by the Merger Agreement and this Agreement
and any other matter that must be approved by the stockholders of the
Company in order for the transactions contemplated by the Merger Agreement
to be consummated, (B) only as directed by Parent, the Purchaser or any
Parent Subsidiary with respect to any Acquisition Proposal, (C) only as
directed by Parent, the Purchaser or any Parent Subsidiary with respect to
any change in the business, management or Board of Directors of the Company
(other than as directed by Parent, the Purchaser or any Parent Subsidiary)
and (D) only as directed by Parent, the Purchaser or any Parent Subsidiary
with respect to any proposal, action or Contract that would (1) impede,
frustrate, prevent or nullify any provision of this Agreement, the Merger
Agreement or the consummation of the Merger or other transactions
contemplated thereby, (2) result in a breach in any respect of any
covenant, representation, warranty or any other obligation or agreement of
the Company under the Merger Agreement or (3) result in any of the
conditions set forth in Article VI or Annex I of the Merger Agreement not
being fulfilled or satisfied. Each Stockholder shall not commit or agree to
take any action inconsistent with the foregoing.
(b) Irrevocable Proxy. Solely for the purpose of effecting the votes
or consents in Section 2(a), substantially concurrently with the execution
of this Agreement, each Stockholder agrees to deliver to Parent a proxy in
the form attached as Exhibit A hereto (the "Proxy"), which shall be
irrevocable to the extent permitted by applicable Law, covering all of such
Stockholder's Covered Shares. Parent agrees not to exercise the Proxy for
any other purpose. Each Stockholder hereby represents to Parent that any
proxies heretofore given in respect of such Covered Shares are not
irrevocable and that any such proxies are hereby revoked, and such
Stockholder agrees to promptly notify the Company of such revocation. Each
Stockholder hereby affirms that the Proxy is given in connection with the
execution of the Merger Agreement and that the Proxy is given to secure the
performance of the duties of such Stockholder under this Agreement. Each
Stockholder hereby further affirms that the Proxy is coupled with an
interest and may under no circumstances be revoked. Each Stockholder hereby
ratifies and confirms all that the Proxy may lawfully do or cause to be
done by virtue hereof. Without limiting the generality of the foregoing,
the Proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212 of the Delaware General Corporation Law. For the
avoidance of doubt, if for any reason the Proxy is not irrevocable, each
Stockholder agrees to continue to vote its Covered Shares in accordance
with Section 2(a) hereof.
3. Agreement to Tender. Each Stockholder shall validly tender (and shall
not withdraw), pursuant to and in accordance with the terms of the Offer and the
Offer Documents, such Stockholder's Covered Shares into the Offer. In
furtherance, and without limiting the generality, of the foregoing, on or prior
to the Expiration Date, each Stockholder shall (i) deliver or cause to be
delivered to the depositary designated in the Offer Documents (A) a letter of
transmittal with respect to its Covered Shares in the form included in the Offer
Documents and otherwise complying with the terms of the Offer, (B) any
certificates representing its Covered Shares and (C) any and all other documents
or instruments required to be delivered pursuant to the terms of the Offer or
the Offer Documents, (ii) instruct and cause any other Person who is the holder
of record of any Covered Shares beneficially owned by such Stockholder
(including such Stockholder's broker) to validly tender (and not withdraw,
unless either the Offer or this Agreement terminates pursuant to Section 7
hereof) such Covered Shares pursuant to and in accordance with the terms and
conditions of the Offer and the Offer Documents and (iii) take any and all other
actions reasonably necessary to accomplish the foregoing.
4. No Disposition or Solicitation.
(a) No Disposition or Adverse Act. Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement, the Merger Agreement
and the Offer Documents, each Stockholder shall not (i) offer to Transfer,
Transfer or consent to any Transfer of any or all of its Covered Shares or
any interest therein without the prior written consent of Parent, (ii)
enter into any Contract with respect to any Transfer of any of its Covered
Shares or any interest therein, (iii) grant any proxy, power-of-attorney or
other authorization or consent in or with respect to any of its Covered
Shares, (iv) deposit any of its Covered Shares into a voting trust or enter
into a voting agreement or arrangement with respect to any of its Covered
Shares or (v) take any other action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect in any
material respect or in any way restrict, limit or interfere in any material
respect with the performance of such Stockholder's obligations hereunder or
the transactions contemplated hereby or by the Merger Agreement; provided,
that nothing in this Section 4(a) shall restrict or prohibit (x) the
transfer of Covered Shares between and among accounts that are controlled
by the Stockholder, if at all times such accounts hold Covered Shares, and
which do not place prohibitions or restrictions on the ability of such
Stockholder to perform any of its agreements or obligations hereunder or
(y) the transfer of Covered Shares to any affiliate of the Stockholder who
executes a similar Tender and Support Agreement. Any attempted Transfer of
Covered Shares or any interest therein in violation of this Section 4(a)
shall be null and void.
(b) Non-Solicitation. Each Stockholder hereby agrees that Stockholder
shall not, and shall not authorize its representatives and agents
(including its investment bankers, attorneys and accountants)
(collectively, its "Representatives") to, directly or indirectly, (i)
initiate, solicit or knowingly facilitate or encourage (including by way of
providing information) the submission of any inquiries, proposals or offers
or any other efforts or attempts that constitute, or may reasonably be
expected to lead to, any Acquisition Proposal or engage in any discussions
or negotiations with respect thereto, (ii) approve or recommend, or
publicly propose to approve or recommend, any Acquisition Proposal, (iii)
make any statement or proposal inconsistent with the Company Board
Recommendation or (iv) enter into any merger agreement, letter of intent,
agreement in principle, share purchase agreement, asset purchase agreement,
share exchange agreement, option agreement or other similar Contract
relating to an Acquisition Proposal or enter into any Contract or agreement
in principle requiring such Stockholder to abandon, terminate or breach its
obligations hereunder or fail to consummate the transactions contemplated
hereby. Each Stockholder shall immediately cease and cause to be terminated
any solicitation, encouragement, discussion or negotiation with any Persons
conducted theretofore by such Stockholder or any of its Representatives
with respect to any Acquisition Proposal. Each Stockholder shall promptly
notify Parent in writing of any Acquisition Proposal (and in any event less
than 24 hours following the receipt of such Acquisition Proposal), such
notice to include the identity of any Person approaching such Stockholder
with an Acquisition Proposal, and a copy of any such Acquisition Proposal
(or, where no such copy is available, a reasonably detailed description of
such Acquisition Proposal), including any modifications thereto. Any
violation of the foregoing restrictions by a Stockholder or any of its
Representatives shall be deemed to be a material breach of this Agreement
by such Stockholder.
5. Waiver of Appraisal and Dissenters' Rights and Actions. Each Stockholder
hereby (i) waives and agrees not to exercise any rights of appraisal or rights
to dissent from the Merger that Stockholder may have and (ii) agrees not to
commence or participate in, and agrees to take all actions necessary to opt out
of any class in any class action with respect to, any claim, derivative or
otherwise, against Parent, the Purchaser, the Company or any of their respective
successors relating to the negotiation, execution or delivery of this Agreement
or the Merger Agreement or the consummation of the Offer or the Merger,
including any claim (x) challenging the validity of, or seeking to enjoin the
operation of, any provision of this Agreement or (y) alleging a breach of any
fiduciary duty of the Board of Directors of the Company in connection with the
Merger Agreement or the transactions contemplated thereby.
6. Representations and Warranties of Stockholder. Each Stockholder hereby
represents and warrants to Parent as follows:
(a) Title. Such Stockholder is the sole record or beneficial owner of
the Shares set forth opposite such Stockholder's name on Schedule I. Such
Shares constitute all of the capital stock and any other Equity Interests
in the Company owned of record or beneficially by such Stockholder on the
date hereof and except for such Shares, such Stockholder is the beneficial
owner of, or has any right to acquire (whether currently, upon lapse of
time, following the satisfaction of any conditions, upon the occurrence of
any event or any combination of the foregoing), any Shares or any other
Equity Interests in the Company. Such Stockholder has sole voting power and
sole power of disposition with respect to the matters set forth in this
Agreement, in each case with respect to all of the Shares set forth
opposite such Stockholder's name on Schedule I with no limitations,
qualifications or restrictions on such rights, subject to applicable
securities Laws and the terms of this Agreement. Except as permitted by
this Agreement, such Shares and any certificates representing such Shares,
are now, and at all times during the term hereof will be, held by such
Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of any and all liens, pledges, claims, options,
proxies, voting trusts or agreements, security interests, understandings or
arrangements or any other encumbrances whatsoever on title, transfer or
exercise of any rights of a stockholder in respect of such Shares (other
than as created by this Agreement or under the terms of margin or prime
brokerage accounts in which such Shares are held that do not prohibit or
restrict the ability of the Stockholder to perform its obligations
hereunder and that would not be applicable to the Shares from and after the
tender of such Shares in the Offer) (collectively, "Liens").
(b) Organization and Qualification. Such Stockholder, if not an
individual, is a legal organization duly organized and validly existing in
good standing under the Laws of the jurisdiction of its organization.
(c) Authority. Such Stockholder has all necessary power and authority
and legal capacity to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated
hereby, and no other proceedings or actions on the part of such Stockholder
are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
(d) Due Execution and Delivery. This Agreement has been duly and
validly executed and delivered by such Stockholder and, assuming due
authorization, execution and delivery hereof by Parent, constitutes a
legal, valid and binding agreement of Stockholder, enforceable against such
Stockholder in accordance with its terms. If such Stockholder is married,
and any of the Covered Shares constitute community property or spousal
approval is otherwise necessary for this Agreement to be legal, binding and
enforceable, this Agreement has been duly authorized, executed and
delivered by, and constitutes the legal, valid and binding obligation of,
such Stockholder's spouse, enforceable in accordance with its terms.
(e) No Filings; No Conflict or Default. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity or any other
Person is necessary for the execution and delivery of this Agreement by
such Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or the compliance by such Stockholder with the
provisions hereof. None of the execution and delivery of this Agreement by
such Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the
provisions hereof will (i) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation,
modification or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, permit,
Contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind, including any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement or voting trust, to
which such Stockholder is a party or by which such Stockholder or any of
Stockholder's properties or assets may be bound, (ii) violate any judgment,
order, writ, injunction, decree or award of any court, administrative
agency or other Governmental Entity that is applicable to such Stockholder
or any of such Stockholder's properties or assets, (iii) constitute a
violation by such Stockholder of any Law or regulation of any jurisdiction,
(iv) render Section 203 of the DGCL, or any other state takeover statute or
similar statute or regulation, applicable to the Merger, the Offer or any
other transaction involving Parent, the Purchaser or any Parent Subsidiary
or (v) to the extent such Stockholder is not an individual, contravene or
conflict with such Stockholder's organizational documents, in each case,
except for any conflict, breach, default or violation described which would
not adversely effect in any material respect the ability of such
Stockholder to perform its obligations hereunder or consummate the
transactions contemplated hereby.
(f) No Litigation. There is no suit, claim, action, investigation or
proceeding pending or, to the knowledge of such Stockholder, threatened
against such Stockholder at Law or in equity before or by any Governmental
Entity that could reasonably be expected to impair the ability of such
Stockholder to perform its obligations hereunder or consummate the
transactions contemplated hereby.
(g) No Fees. No broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder.
(h) Receipt; Reliance. Such Stockholder has received and reviewed a
copy of the Merger Agreement. Such Stockholder understands and acknowledges
that Parent and the Purchaser are entering into the Merger Agreement in
reliance upon such Stockholder's execution, delivery and performance of
this Agreement.
7. Termination. The term (the "Term") of this Agreement and the Proxy
granted pursuant hereto, with respect to any Stockholder, shall commence on the
date hereof and shall terminate upon the earliest of (i) the mutual written
agreement of Parent and such Stockholder, (ii) the Effective Time, (iii) the
termination of the Merger Agreement in accordance with its terms, (iv) the
acquisition by Parent of all of the Covered Shares, whether pursuant to the
Offer or otherwise, (v) the termination of the Offer prior to the Acceptance
Time and (vi) the Company having effected a Change in Board Recommendation
pursuant to and in accordance with Section 5.4 of the Merger Agreement; provided
that nothing herein shall relieve any party hereto from liability for any breach
of this Agreement and Sections 7 and 9 shall survive any termination of this
Agreement. Upon termination of this Agreement, any Covered Shares tendered into
the Offer prior to such termination may be withdrawn from the Offer.
8. No Limitation. Nothing in this Agreement shall be construed to prohibit
any Stockholder or any of such Stockholder's Representatives who is an officer
or member of the Board of Directors of the Company from taking any action in his
or her capacity as an officer or member of the Board of Directors of the Company
or, subject to the limitations set forth in the Merger Agreement, from taking
any action with respect to any Acquisition Proposal as an officer or member of
such Board of Directors.
9. Miscellaneous.
(a) Entire Agreement. This Agreement (together with Schedule I and
Exhibit A) and the Proxy constitute the entire agreement of the parties and
supersede all prior agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subject matter
hereof.
(b) Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to be done,
all things necessary, proper or advisable under applicable Laws to
consummate and make effective the transactions contemplated hereby. At the
other party's reasonable request and without further consideration, each
party hereto shall execute and deliver such additional documents and take
all such further lawful action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable,
the transactions contemplated hereby. Without limiting the foregoing, each
Stockholder shall execute and deliver to Parent and any of its designees
any additional proxies, including with respect to any Covered Shares
acquired after the date hereof, reasonably requested by Parent in
furtherance of this Agreement.
(c) No Assignment. This Agreement shall not be assigned by operation
of Law or otherwise without the prior written consent of the Stockholders
(in the case of any assignment by Parent) or Parent (in the case of an
assignment by any Stockholder); provided that Parent may assign any of its
rights and obligations hereunder, in whole or in part, to the Purchaser or
any other Parent Subsidiary, but no such assignment shall relieve Parent of
its obligations hereunder.
(d) Binding Successors. Without limiting any other rights Parent may
have hereunder in respect of any Transfer of the Covered Shares, each
Stockholder agrees that this Agreement and the Proxy and the obligations
hereunder and thereunder shall attach to the Covered Shares beneficially
owned by such Stockholder and its affiliates and shall be binding upon any
Person to which legal or beneficial ownership of such Covered Shares shall
pass, whether by operation of Law or otherwise, including such
Stockholder's heirs, guardians, administrators or successors.
(e) Amendments. This Agreement may not be amended, changed,
supplemented or otherwise modified except by an instrument in writing
signed on behalf of Parent and each Stockholder against whom such
amendment, change, supplement or modification is sought to be enforced.
(f) Notice. Any notices or other communications required or permitted
under, or otherwise given in connection with, this Agreement shall be in
writing and shall be deemed to have been duly given (i) when delivered or
sent if delivered in Person or sent by facsimile transmission (provided
confirmation of facsimile transmission is obtained), (ii) on the fifth
Business Day after dispatch by registered or certified mail, (iii) on the
next Business Day if transmitted by national overnight courier or (iv) on
the date delivered if sent by email (provided confirmation of email receipt
is obtained), in each case as follows:
If to the Stockholders:
At the respective addresses and facsimile numbers set forth on
Schedule I hereto.
Copy to:
Icahn Associates Corp.
Law Department
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Attention: General Patent CounselCopy to:
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(g) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
(h) Remedies. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at Law or in equity
shall be cumulative and not alternative, and the exercise of any such
right, power or remedy by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at Law or in equity, or to insist upon compliance by any
other party hereto with such party's obligations hereunder, and any custom
or practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of such party's right to exercise any
such or other right, power or remedy or to demand such compliance.
(j) No Third Party Beneficiaries. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and their respective
successors and assigns, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
(k) Governing Law. This Agreement, and all matters arising hereunder
or in connection herewith, shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without regard to Laws
that may be applicable under conflicts of Laws principles (whether of the
State of Delaware or any other jurisdiction) that would cause the
application of the Laws of any jurisdiction other than the State of
Delaware.
(l) Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of any Delaware State court, or Federal court of
the United States of America, sitting in Delaware, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the agreements delivered in connection herewith or the
transactions contemplated hereby or thereby or for recognition or
enforcement of any judgment relating thereto, and each of the parties
hereby irrevocably and unconditionally (i) agrees not to commence any such
action or proceeding except in such courts, (ii) agrees that any claim in
respect of any such action or proceeding may be heard and determined in
such Delaware State court or, to the extent permitted by Law, in such
Federal court, (iii) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State
or Federal court, and (iv) waives, to the fullest extent permitted by Law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such Delaware State or Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by Law. Each party to this
Agreement irrevocably consents to service of process in the manner provided
for notices in Section 9(f). Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by Law.
(m) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS,
(II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS,
(III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9(m).
(n) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled, without the securing or posting of any bond, guarantee or other
undertaking, to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled at Law or in
equity. In any action for specific performance, the parties will waive the
defense of adequacy of a remedy at law.
(o) Interpretation. Each party hereto has participated in the drafting
of this Agreement, which each party acknowledges is the result of extensive
negotiations between the parties. If an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any
provision. For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall
include masculine and feminine genders. As used in this Agreement, the
words "include" and "including," and variations thereof, shall not be
deemed to be terms of limitation, but rather shall be deemed to be followed
by the words "without limitation." Except as otherwise indicated, all
references in this Agreement to "Sections," "Exhibits," "Annexes" and
"Schedules" are intended to refer to Sections of this Agreement and
Exhibits, Annexes and Schedules to this Agreement. All references in this
Agreement to "$" are intended to refer to U.S. dollars. Unless otherwise
specifically provided for herein, the term "or" shall not be deemed to be
exclusive.
(p) Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
(q) Expenses. Except as otherwise provided herein, all costs and
expenses incurred by the parties hereto shall be borne solely and entirely
by the party which has incurred the same.
(r) No Ownership Interest. Nothing contained in this Agreement shall
be deemed, upon execution, to vest in Parent any direct or indirect
ownership or incidence of ownership of or with respect to any Covered
Shares. All rights, ownership and economic benefits of and relating to the
Covered Shares shall remain vested in and belong to the Stockholders, and
Parent shall have no authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of the
Company or exercise any power or authority to direct any Stockholder in the
voting of any of the Covered Shares, except as otherwise provided herein.
[Signature page follows.]
IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
▇▇▇ ▇▇▇▇▇ AND COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
BARBERRY CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
HIGH RIVER LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ Investments LLC,
its general partner
By: Barberry Corp., its sole member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
NAME AND CONTACT INFORMATION NUMBER OF SHARES
FOR STOCKHOLDER BENEFICIALLY OWNED
---------------------------- ------------------
Barberry Corp. 900,800
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
High River Limited Partnership 6,205,134
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of ImClone Systems
Incorporated, a Delaware corporation (the "Company"), hereby (i) irrevocably
grants to, and appoints, ▇▇▇ ▇▇▇▇▇ and Company, a Delaware corporation
("Parent"), and any person designated in writing by Parent, and each of them
individually, Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Stockholder, to vote all
of the Covered Shares or grant a consent or approval in respect of the Covered
Shares, in accordance with the terms of this Proxy and (ii) revokes any and all
proxies heretofore given in respect of the Covered Shares.
This Proxy is granted pursuant to that certain Tender and Support
Agreement, dated as of the date hereof, by and among Parent, Stockholder and
certain other stockholders of the Company named therein (the "Support
Agreement"). For the purposes of this Proxy, "Covered Shares" means (i) all
shares of common stock, par value $0.001 per share, of the Company ("Company
Common Stock") and the associated preferred stock purchase rights issued in
connection with and subject to the Rights Agreement, dated as of February 15,
2002 and amended on May 4, 2006, between the Company and EquiServe Trust
Company, N.A., as Rights Agent and any other equity interests in the Company
which are beneficially owned by Stockholder or any of its affiliates as of the
date hereof and (ii) all shares of Company Common Stock and any other equity
interests in the Company which are beneficially owned by Stockholder or any of
its affiliates and are acquired after the date hereof and prior to the
termination of the Support Agreement. The Covered Shares as of the date hereof
are set forth on the signature page hereof. This Proxy shall terminate and be of
no further force and effect immediately upon termination of the Support
Agreement.
Stockholder hereby affirms that the irrevocable proxy set forth in this
Proxy is given in connection with the execution of that certain Agreement and
Plan of Merger (the "Merger Agreement"), dated as of the date hereof, by and
among Parent, Alaska Acquisition Corporation, a Delaware corporation (the
"Purchaser"), and the Company, providing, among other things, for (i) an offer
by the Purchaser to purchase all of the outstanding shares of Company Common
Stock and the associated Company Rights (as defined in the Merger Agreement) and
(ii) following the acceptance for payment of shares of Company Common Stock and
the associated Company Rights pursuant to the Offer, the merger of the Purchaser
with and into the Company (the "Merger"), and that such irrevocable proxy is
given to secure the performance of the duties of Stockholder under the Support
Agreement. Stockholder hereby further affirms that the irrevocable proxy set
forth in this Proxy is coupled with an interest and may under no circumstances
be revoked. Stockholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof. Without limiting the
generality of the foregoing, this Proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212 of the Delaware
General Corporation Law.
The attorneys-in-fact and proxies named above are hereby authorized and
empowered by the undersigned at any time after the date hereof and prior to the
termination of the Support Agreement to act as the undersigned's
attorney-in-fact and proxy to vote the Covered Shares, and to exercise all
voting, consent and similar rights of the undersigned with respect to the
Covered Shares (including, without limitation, the power to execute and deliver
written consents), at every annual, special, adjourned or postponed meeting of
the stockholders of the Company and in every written consent in lieu of such a
meeting:
(A) in favor of adopting the Merger Agreement (including for the purposes
of this Proxy, as it may be modified or amended from time to time),
and the approval of the Merger and each of the other transactions
contemplated by the Merger Agreement and the Support Agreement and any
other matter that must be approved by the stockholders of the Company
in order for the transactions contemplated by the Merger Agreement to
be consummated,
(B) in favor of any adjournment or postponement recommended by the Company
with respect to any stockholder meeting with respect to the Merger
Agreement and the Merger,
(C) against any Acquisition Proposal or any agreements, arrangements,
commitments, understandings, contracts, leases (whether for real or
personal property), powers of attorney, notes, bonds, mortgages,
indentures, deeds of trust, loans, evidences of indebtedness, purchase
orders, letters of credit, settlement agreements, franchise
agreements, undertakings, covenants not to compete, employment
agreements, licenses, instruments, obligations, commitments,
understandings, policies, purchase and sales orders, quotations or
other commitments (collectively, "Contracts") relating to an
Acquisition Proposal,
(D) against any reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company (other than the Merger),
(E) against any change in the business, management or Board of Directors
of the Company (other than as directed by Parent, the Purchaser or any
Parent Subsidiary); and
(F) against any proposal, action or Contract that would (1) impede,
frustrate, prevent or nullify any provision of the Support Agreement,
the Merger Agreement or the Merger, (2) result in a breach in any
respect of any covenant, representation, warranty or any other
obligation or agreement of the Company under the Merger Agreement, (3)
result in any of the conditions set forth in Article VI or Annex I of
the Merger Agreement not being fulfilled or satisfied or (4) except as
expressly contemplated by the Merger Agreement, change in any manner
the dividend policy or capitalization of, including the voting rights
of any class of equity interests in, the Company.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: [________]
BARBERRY CORP.
By:___________________________________
Name:
Title:
Shares: 900,800
[Signature Page to Proxy]
Dated: [________]
HIGH RIVER LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ Investments LLC,
its general partner
By: Barberry Corp., its sole member
By: _____________________________
Name:
Title:
Shares: 6,205,134
[Signature Page to Proxy]