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
Xxx Xxxxx 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.
2
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.
3
(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”).
4
(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.
5
(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.
6
(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
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Attention:
Xxxxx
Xxxxxxxxx
7
If
to
Parent:
c/o
Xxx
Lilly and Company
Lilly
Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000 XXX
Telephone: (000)
000-0000
Facsimile:
(000)
000-0000
Attention:
General
Patent CounselCopy
to:
Xxxxxx
& Xxxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attention:
M. Xxxx Xxxxxx-Far
Email:
xxxx.xxxxxxxxx@xx.xxx
(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.
8
(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).
9
(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.
10
[Signature
page follows.]
11
IN
WITNESS WHEREOF, Parent and Stockholder have caused this Agreement to be
duly
executed as of the day and year first above written.
|
XXX
XXXXX AND COMPANY
|
||
|
By:
|
/s/
Xxxx Xxxxxxx
|
|
|
Name:
Xxxx Xxxxxxx
|
||
|
Title:
Vice President
|
||
|
ICAHN
ENTERPRISES HOLDINGS L.P.
|
||
|
By:
Icahn Enterprises G.P. Inc., general partner
|
||
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxx
|
||
|
Title:
Vice Chairman
|
||
[Signature
page to Tender and Support Agreement]
SCHEDULE
I
|
Name
and Contact Information for Stockholder
|
Number
of Shares
Beneficially
Owned
|
|||
|
Icahn
Enterprises Holdings LP
000
Xxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxx
Xxxxxx, XX 00000
|
4,563,610
|
|||
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, Xxx Xxxxx 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:
October 6, 2008
|
By:
|
Icahn
Enterprises G.P. Inc., general partner
|
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
Name:
Xxxxx Xxxxxxx
|
|
|
Shares:
|
4,563,610
|
[Signature
Page to Proxy]
