UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.)*
ImClone Systems Incorporated
(Name of Issuer)
Common Stock
(Title of Class of Securities)
45245W109
(CUSIP Number)
Marc Weitzen, Esq.
Gordon Altman Weitzen Shalov & Wein
114 West 47th Street, 20th Floor
New York, New York 10036
(212) 626-0800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 7, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 45245W109
1 NAME OF REPORTING PERSON
High River Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-3626974
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /X/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
1,294,100 **
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,294,100 **
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,294,100 **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
14 TYPE OF REPORTING PERSON*
PN
** See Item 5.
<PAGE>
SCHEDULE 13D
CUSIP No. 45245W109
1 NAME OF REPORTING PERSON
Riverdale LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-3903766
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /X/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,294,100 **
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,294,100 **
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,294,100 **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
14 TYPE OF REPORTING PERSON*
OO
** See Item 5.
<PAGE>
SCHEDULE 13D
CUSIP No. 45245W109
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /X/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,294,100 **
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,294,100 **
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,294,100 **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%
14 TYPE OF REPORTING PERSON*
IN
** See Item 5.
<PAGE>
SCHEDULE 13D
------------
Item 1. Security and Issuer
This Schedule 13D relates to the common stock, par value
$0.001 per share ("Shares"), of ImClone Systems Incorporated, a Delaware
corporation (the "Issuer"). The address of the principal executive offices of
the Issuer is 180 Varick Street, New York, New York 10014.
Item 2. Identity and Background
The persons filing this statement are High River Limited
Partnership, a Delaware limited partnership ("High River"), Riverdale LLC, a
New York limited liability company ("Riverdale") and Carl C. Icahn, a citizen
of the United States of America (collectively, the "Registrants"). The
principal business address and the address of the principal office of the
Registrants is 100 South Bedford Road, Mount Kisco, New York 10549, with the
exception of Carl C. Icahn, whose principal business address is c/o Icahn
Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153.
Riverdale is the general partner of High River. Riverdale is
wholly owned by Carl C. Icahn. Registrants may be deemed to be a "group" within
the meaning of Section 13(d)(3) promulgated under the Securities Exchange Act
of 1934, as amended (the "Act").
High River is primarily engaged in the business of investing
in securities. Riverdale is primarily engaged in the business of owning real
estate and acting as general partner of High River. Carl C. Icahn's present
principal occupation or employment is acting as President and a Director of
Starfire Holding Corporation, a Delaware corporation ("Starfire"), and as the
Chairman of the Board and Director of various subsidiaries of Starfire,
including ACF Industries, Incorporated, a New Jersey corporation ("ACF").
Starfire, whose principal business address is 100 South Bedford Road, Mount
Kisco, New York 10549, is primarily engaged in the business of holding, either
directly or through its subsidiaries, a majority of the common stock of ACF.
ACF is primarily engaged in the business of leasing, selling and
manufacturing railroad freight and tank cars.
<PAGE>
The name, citizenship, present principal occupation or
employment and business address of each member of Riverdale is set forth in
Schedule A attached hereto.
Carl C. Icahn is a member of Riverdale and owns 100% of
the interests therein. As such, Mr. Icahn is in a position
directly and indirectly to determine the investment and voting
decisions made by Registrants.
Neither High River, Riverdale, Mr. Icahn, nor any executive
officer or director of any of the Registrants, has, during the past five years,
(a) been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), or (b) been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting, or mandating activities subject to,
Federal or State securities laws or a finding of any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of 844,100 Shares purchased by
the Registrants is $18,162,133.45. The Registrants beneficially own a call
option with the right to purchase 300,000 Shares at an exercise price of $.50
per share and a call option with the right to purchase 150,000 Shares at an
exercise price of $2.00 per share. Both of these options expire on April 27,
2000. The source of funding for the purchase of these Shares is general working
capital of the Registrants.
Item 4. Purpose of Transaction
The Registrants have acquired the Shares of the Issuer for
investment purposes. Depending on market conditions and other factors, the
Registrants may acquire additional Shares of the Issuer as they deem
appropriate, whether in open market purchases, privately negotiated
transactions or otherwise. The Registrants also reserve the right to dispose
of some or all of their Shares in the open market, in privately negotiated
transactions to third parties or otherwise.
Item 5. Interest in Securities of the Issuer
(a) As of the close of business on October 7, 1999,
Registrants may be deemed to beneficially own in the aggregate 1,294,100
Shares representing approximately 5.1% of the Issuer's outstanding Shares
(based upon the 25,564,233 Shares stated to be outstanding as of
September 1, 1999, by the Issuer in the Issuer's S-3 filing filed with
the Securities and Exchange Commission (the "SEC") on October 6, 1999).
The aggregate number of shares beneficially owned by the Registrants includes
the
<PAGE>
options of High River to purchase 450,000 Shares, as more fully described in
Item 6 herein and attached as Exhibit 2 and Exhibit 3 hereto. Registrants have
direct beneficial ownership of the Shares as follows:
<TABLE>
<CAPTION>
NAME NUMBER OF APPROXIMATE PERCENTAGE
SHARES OF OUTSTANDING SHARES
<S> <C> <C>
High River 1,294,100 5.1%
</TABLE>
Riverdale and Mr. Icahn, by virtue of their relationships to
High River (as disclosed in Item 2), may be deemed to beneficially own (as that
term is defined in Rule 13d-3 under the Act) the Shares which High River
directly beneficially owns. Each of Riverdale and Mr. Icahn disclaims
beneficial ownership of such Shares for all other purposes.
To the best of Registrants' knowledge, except as set forth
herein, neither the directors nor the executive officers of the Registrants
beneficially own any Shares.
(b) High River has sole voting power and sole dispositive
power with regard to 1,294,100 Shares. Riverdale has shared voting power and
shared dispositive power with regard to 1,294,100 Shares. Carl C. Icahn has
shared voting power and shared dispositive power with regard to 1,294,100
Shares.
(c) The following table sets forth all transactions with
respect to Shares effected during the past sixty days by each of the persons
named in Item 5(a) above. All transactions listed in the following table were
executed on NASDAQ.
<TABLE>
<CAPTION>
DATE NUMBER OF SHARES PRICE PER SHARE
PURCHASED
<S> <C> <C>
September 29, 1999 4,800 32.0547
September 30, 1999 22,300 30.7904
October 5, 1999 50,000 29.9288
October 6, 1999 130,000 25.8426
October 7, 1999 387,000 22.0876
</TABLE>
<PAGE>
(d) No other person has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of any
Shares which Registrants may be deemed to beneficially own.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationship
with Respect to Securities of the Issuer
Registrants are party to a Joint Filing Agreement, a copy of
which is attached hereto as Exhibit 1, with respect to the filing of this
statement and any amendments thereto.
High River is party to an Option Agreement, a copy of which is
attached hereto as Exhibit 2, dated as of April 27, 1995, with the Issuer,
pursuant to which the Issuer has granted to High River an option to purchase
150,000 Shares for a price per share equal to $2.00.
High River is party to an Option Agreement, a copy of which is
attached hereto as Exhibit 3, dated as of April 27, 1995, with the Issuer,
pursuant to which the Issuer has granted to High River an option to purchase
300,000 Shares for a price per share equal to $0.50.
Item 7. Material to be Filed as Exhibits
1. Joint Filing Agreement of the Registrants
2. Option Agreement, dated as of April 27, 1995, between ImClone Systems
Incorporated, a Delaware corporation, and High River Limited Partnership,
a Delaware limited partnership.
3. Option Agreement, dated as of April 27, 1995, between ImClone Systems
Incorporated, a Delaware corporation, and High River Limited Partnership,
a Delaware limited partnership.
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: October 18, 1999
RIVERDALE LLC
By: /s/Carl C. Icahn
Carl C. Icahn
Its: Member
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE LLC
Its: General Partner
By: /s/Carl C. Icahn
Carl C. Icahn
Its: Member
Carl C. Icahn
By: /s/Carl C. Icahn
Carl C. Icahn
(Signature Page of Schedule 13D with respect to ImClone
Systems Incorporated)
<PAGE>
SCHEDULE A
----------
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS
Name, Business Address and Principal Occupation of
Each Member of Riverdale
The following sets forth the name, position, and principal occupation
of each member of Riverdale. Each such person is a citizen of the United States
of America. Except as otherwise indicated, the business address of each
director and officer is c/o Icahn Associates Corp., 767 Fifth Avenue,
47th Floor, New York, New York 10153. To the best of Registrants' knowledge,
except as set forth in this statement on Schedule 13D, none of the directors
or executive officers of the Registrants own any shares of the Issuer.
RIVERDALE LLC
<TABLE>
<CAPTION>
Name Position Principal Occupation
- ---- -------- --------------------
<S> <C> <C>
Carl C. Icahn Member See Item 2 herein
Officer of various Icahn
affiliated entities
</TABLE>
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities Exchange
Act of 1934, as amended, each of the persons named below agree to the joint
filing of a statement on Schedule 13D, including amendments thereto, with
respect to the common stock, par value $0.001 per share, of ImClone Systems
Incorporated, and further agree that this Joint Filing Agreement be included as
an exhibit to such filings, provided that, as contemplated by Section
13d-1(k)(1)(ii), no person shall be responsible for the completeness or
accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate.
This Joint Filing Agreement may be executed in any number of
counterparts, all of which collectively shall constitute one and the same
instrument.
Dated: October 18, 1999
/RIVERDALE LLC
By: /s/Carl C. Icahn
Carl C. Icahn
Its: Member
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE LLC
Its: General Partner
By: /s/Carl C. Icahn
Carl C. Icahn
Its: Member
Carl C. Icahn
By: /s/Carl C. Icahn
Carl C. Icahn
<PAGE>
EXHIBIT 2
OPTION AGREEMENT
OPTION AGREEMENT dated as of April 27, 1995 (the "Agreement"), between
ImClone Systems Incorporated, a Delaware Corporation ("ImClone"), and High
River Limited Partnership, a Delaware limited partnership ("High River").
WHEREAS, pursuant to an option agreement of even date, High River has
agreed to grant to ImClone a certain option (the "Cadus Option") pursuant to
which High River will sell to ImClone, upon the terms and conditions contained
therein, 1,050,000 shares of Common Stock, $.001 par value per share, and
2,188,184 shares of Series A Preferred Stock, $.001 par value per share, of
Cadus Pharmaceutical Corporation, a Delaware corporation;
WHEREAS, as consideration for the grant by High River of the Cadus
Option, ImClone has agreed to grant to High River the option described herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
1. Grant of Option. ImClone hereby grants to High River an
option (the "Option") to purchase, on the terms and conditions set forth
herein, 150,000 shares of common stock of ImClone, par value $.001 per share
("ImClone Common Stock") for a price per share equal to $2.00
(the "Exercise Price"), subject to adjustment pursuant to Section 4 hereof
(the "Option Shares"). The Option granted hereby shall terminate and
expire at 5:00 p.m., New York City time, on April 27, 2000
(the "Expiration Date").
2. Exercise of Option. High River may exercise this Option in
whole or in part at any time from time to time commencing on the date hereof
and continuing through the Expiration Date.
3. Exercise of Option.
a. To exercise the Option, High River shall give
written notice to ImClone of such exercise, which notice shall specify the
number of Option Shares to be purchased and the place, date and time designated
by High River for the closing of such purchase, which date shall not be
less than 5 business days nor more than 15 business days after the date
of such notice. Notwithstanding any provision of this Agreement to the
contrary, the giving of any exercise notice by High River shall not
obligate High River to consummate any purchase hereunder.
b. At each closing: (i) High River will (x) pay
to ImClone, by delivery of a certified or bank cashier's check payable in
immediately available funds, an amount equal to the product of the Exercise
Price and the number of Option Shares specified in the applicable exercise
notice and (y) provide to
<PAGE>
ImClone a letter signed by High River to the effect that (A) High River is
acquiring such Option Shares for its own account, and not with a view to, or
for resale in connection with, the distribution thereof, and that High River
has no present intention of distributing or reselling such shares and (B)
High River agrees that such Option Shares shall not be sold or transferred
unless either (1) they first shall have been registered under the Securities
Act of 1933, as amended (the "Act"), and applicable state securities or
blue sky laws or (2) ImClone first shall have been furnished with an
opinion of legal counsel acceptable in form and substance to ImClone (in
its sole discretion) to the effect that such sale or transfer is exempt
from the foregoing registration requirement and (ii) ImClone will
deliver to High River one or more certificates, registered in High
River's name or in the name of any nominee designated by High River,
representing such Option Shares.
4. Adjustments
a. In case after the date hereof, ImClone shall
(i) pay a dividend or make a distribution on ImClone Common Stock, (ii)
subdivide the outstanding shares of ImClone Common Stock into a larger number
of shares of ImClone Common Stock, (iii) combine the outstanding shares of
ImClone Common Stock into a smaller number of shares of ImClone Common
Stock or (iv) increase or decrease the number of shares of ImClone Common
Stock outstanding by reclassification of the ImClone Common Stock, then the
number of Option Shares purchasable upon exercise of the Option immediately
after the happening of such event shall be adjusted so that High River
shall be entitled to receive upon exercise of this Option, the number of
shares of ImClone Common Stock and, in the case of a dividend or
distribution other than in shares of ImClone Common Stock, the cash,
securities or other property so dividended or distributed, that High River
would have owned or have been entitled to receive immediately following
the happening of such event, had the Option been exercised in full
immediately prior thereto (or, in the case of a dividend or distribution on
ImClone Common Stock, immediately prior to the record date therefor), and the
Exercise Price for the Option shall be adjusted in inverse proportion
(calculated to the nearest .001 of a cent). If the amount of any adjustment of
the Exercise Price required pursuant to this Section 4(a) would be less than
two percent (2%) of the Exercise Price in effect at the time such
adjustment is otherwise so required to be made, such amount shall be
carried forward and adjustment with respect thereto made at the time of
and together with any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward, shall aggregate
at least two percent (2%) of such Exercise Price. An adjustment made
pursuant to this Section 4(a) shall become effective immediately after the
effective date, retroactive to the record date therefore in the case of a
dividend or distribution on shares of ImClone Common Stock, and shall
become effective immediately after the effective date in the case of a
subdivision, combination or reclassification of ImClone Common Stock.
<PAGE>
b. In case ImClone after the date hereof (i)
shall consolidate with or merge into any other person and shall not be the
continuing or surviving corporation of such consolidation or merger, or (ii)
shall permit any other person to consolidate with or merge into ImClone and
ImClone shall be the continuing or surviving person but,in connection with such
consolidation or merger,ImClone Common Stock shall be changed into or exchanged
for stock or other securities of any other person or cash or any other
property, or (iii) shall transfer all or substantially all of its properties
or assets to any other person or (iv) shall effect a capital
reorganization or reclassification of ImClone Common Stock, then proper
provision shall be made so that High River, upon any exercise of the
Option at any time after the consummation of such transaction, shall be
entitled to receive (at the aggregate Exercise Price in effect at the time of
such consummation for all Option Shares issuable upon such exercise
immediately prior to such consummation), in lieu of the ImClone Common Stock
issuable upon such exercise prior to such consummation, the amount of
securities, cash or other property to which High River would actually
have been entitled as a shareholder upon such consummation if High River
had exercised the Option immediately prior thereto. After the consummation of
any such transaction, "Option Shares" shall refer to such other securities,
cash or other property.
c. Notwithstanding any provision in this
Agreement to the contrary, ImClone will not effect any of the transactions
described in clauses(i) through (iv) of Section 4(b) hereof unless, prior to
the consummation thereof,each person (other than ImClone) which may be required
to deliver any stock, securities, cash or property upon the exercise of the
Option as provided herein shall assume,by written instrument delivered to and
reasonably satisfactory to High River, the obligations of ImClone under this
Agreement.
5. Representations and Warranties of ImClone. ImClone hereby
represents and warrants to High River as follows:
a. Due Authorization, etc. ImClone has all
necessary corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of ImClone. This
Agreement has been duly executed and delivered by a duly authorized officer
of ImClone, constitutes a legal, valid and binding agreement of ImClone and
is enforceable against ImClone in accordance with its terms, except as
such enforceability may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium, marshalling or other similar laws
now or hereafter in effect relating to or affecting the rights and
remedies of creditors generally and (ii) general principles of
equity, whether such enforceability is considered in a proceeding in equity
or at law.
<PAGE>
b. Option Shares. All of the Option Shares to
be acquired upon exercise of the Option shall be duly and validly issued, fully
paid and non-assessable and shall be free and clear of any liens, claims,
charges, rights of others, security interests, options or encumbrances of any
nature, including preemptive rights. ImClone has taken all necessary corporate
and other action to authorize, to reserve and to permit it to sell and issue,
and at all times from the date hereof until such time as ImClone's obligation
to sell and deliver shares of ImClone Common Stock hereunder terminates, will
have reserved for issuance upon exercise of the Option, the maximum number of
Option Shares that High River has the right to purchase hereunder.
c. No Conflicts; No Consents. Neither the
execution and delivery by ImClone of this Agreement nor the performance by
ImClone of its obligations hereunder will: (i) violate or conflict with any
provision of ImClone's Certificate of Incorporation or By-Laws, in each case as
in effect on the date hereof and on the date of any closing hereunder;(ii) with
or without the giving of notice or the passage of time, or both, violate, or be
in conflict with, or permit the termination of, or constitute a default under,
or cause the acceleration of the maturity of,any agreement, debt or obligation
of any nature of ImClone or to which ImClone is a party or it or any of its
properties is bound; (iii) require the consent of any party to any agreement,
instrument or commitment to which ImClone is a party or to which it or any of
its properties is bound; (iv) violate any statute or law or any judgment,
decree, order, regulation or rule of any court, regulatory authority or
governmental agency or authority to which ImClone or any of its properties is
subject; or (v) result in the creation of any lien or other encumbrance on its
assets. No consent, approval or authorization of, or declaration, filing or
registration with,any regulatory authority or governmental agency or authority
is required to be made or obtained by ImClone in connection with the
execution, delivery and performance of this Agreement, the performance by
ImClone of its obligations hereunder or the con summation of the
transactions contemplated hereby. ImClone is not a party to any
material contract, commitment or agreement, nor is ImClone subject to, or
bound by, any order, judgment, decree, law, statute, ordinance, rule,
regulation or other restriction of any kind or character, which would prevent
ImClone from entering into this Agreement or from consummating the trans
actions contemplated hereby.
6. Representation and Warranty of High River. High River
hereby represents and warrants to ImClone as follows:
a. Due Authorization, etc. High River has full
power and authority to execute and deliver this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary partnership
action on the part of High River. This Agreement has been duly executed and
delivered by a duly
<PAGE>
authorized signatory of High River, constitutes a legal, valid and binding
agreement of High River and is enforceable against High River in accordance
with its terms, except as such enforceability may be limited by (i) the
effect of bankruptcy, insolvency, reorganization, moratorium, marshalling or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors generally and (ii) general principles of
equity, whether such enforceability is considered in a proceeding in equity
or at law.
b. Investment. High River is acquiring this
Option for its own account for investment and not with a view to,or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling the same;and High River has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment
providing for the disposition thereof. High River is aware that this Option and
the Option Shares are not being registered under the Act or under applicable
state securities or blue sky laws, and that the certificate(s) representing the
Option Shares will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. THE SECURITIES REPRESENTED BY
THIS INSTRUMENT MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED
AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT COVERING
SUCH SECURITIES UNDER THE ACT AND APPLICABLE STATE SECURITIES
OR BLUE SKY LAWS OR (2) AN OPINION OF COUNSEL TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT AND
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS, WHICH OPINION
SHALL BE ACCEPTABLE IN FORM AND SUBSTANCE TO THE COMPANY IN
ITS SOLE DISCRETION."
7. ImClone Covenants. ImClone covenants and agrees that, from
the date hereof through the Expiration Date, it will take all action necessary
so that each of ImClone's representations and warranties contained herein is
true, complete and correct at all times until the termination of ImClone's
obligation to sell and deliver shares of ImClone Common Stock hereunder.
8. Registration Under Securities Act.
a. (i) Upon written request by High River, ImClone will cause
to be prepared and filed a registration statement under the Act relating to
such number of Option Shares as may be designated by High River and ImClone
will use its best efforts to
<PAGE>
cause such registration statement to become effective; provided, however, that
High River shall be required to register no less than 150,000 Option Shares
under any such registration statement.High River shall have the right to select
the underwriter or underwriters who shall make the offering, if it is to be
underwritten, but High River's selection must be approved by ImClone, which
approval shall not be unreasonably withheld. ImClone shall keep such
registration statement effective until it is permitted to withdraw the same
pursuant to Section 8(c). Notwithstanding anything to the contrary set forth
herein, ImClone may delay the filing or effectiveness of any registration
statement for a period of up to 120 days after the date of a request for
registration pursuant to this Section 8(a)(i) if at the time of such request
ImClone is engaged in a firm commitment underwritten public offering.
(ii) If at any time when High River owns any
shares of ImClone Common Stock acquired pursuant to the exercise of this
Option, ImClone effects a registration of ImClone Common Stock for its own
account or for the account of any other shareholder of ImClone in
connection with the public offering of such ImClone Common Stock (other
than on Form S-4 or Form S-8 or any successor form), it shall allow
High River to participate in such registration; provided, however, if
the managing underwriters in such offering advise ImClone in writing that in
their opinion the number of shares of ImClone Common Stock requested to be
included in such registration exceeds the number which can be sold in such
offering at the proposed offering price, the number of shares of ImClone
Common Stock owned by High River to be included in such registration
shall be reduced to such number that will make the aggregate shares of
ImClone Common Stock so registered not in excess of the number of shares of
ImClone Common Stock that the underwriters believe can be sold at the
proposed price. In connection with any offering involving an underwriting
of ImClone Common Stock for ImClone's account or for the account of any other
shareholder, ImClone shall not be required under this subparagraph (ii)
to include any of High River's ImClone Common Stock in such underwriting
unless High River accepts the reasonable terms of the underwriting as agreed
upon by ImClone or such other shareholder, accepts such underwriters
selected by ImClone or such other shareholder and agrees to enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with such underwriters. ImClone shall be under
no obligation to complete any registration of ImClone
Common Stock it proposes to make and shall incur no liability to High River for
its failure to do so (and its failure to complete the registration of shares of
ImClone Common Stock included in such registration by High River in connection
therewith).
(iii) If, during the period when any registration
statement covering shares of ImClone Common Stock owned by High River is
effective,any event occurs as a result of which the prospectus included in such
registration statement, as then in effect,would include an untrue statement of
a material fact or
<PAGE>
omit to state a material fact required to be stated therein, or necessary in
order to make the statements made not misleading in light of the circumstances
then existing, or it shall be necessary to amend or supplement such prospectus
to comply with applicable law, ImClone will forthwith notify High River thereof
and, at High River's request, ImClone will (a) prepare and file under the Act
such amendments and supplements as may be necessary to keep available a
prospectus covering such registered stock meeting the requirements of the Act,
and (b) furnish to the underwriters, if any, and to High River such number of
copies of each of the registration statement and prospectus as amended or
supplemented as may reasonably be requested from time to time; provided,
however, that once High River is notified by ImClone of the happening of any
event of the kind described above in this subparagraph (iii), High River will
thereafter immediately discontinue the distribution of such registration
statement or prospectus and the disposition of ImClone Common Stock pursuant to
such registration statement or prospectus until such time as High River has
received from ImClone a copy or copies of the amended or supplemental
registration statement or prospectus contemplated by this subparagraph (iii),
and if so directed by ImClone in its notice,High River shall deliver to ImClone
all copies, other than permanent file copies,then in High River's possession of
the registration statement or prospectus covering such ImClone Common Stock;
provided further, that ImClone shall deliver to High River within 15 days of
ImClone's delivery of its notice, such number of copies of the amended or
supplemental registration statement or prospectus as reasonably requested by
High River.
(iv) Any registration statement filed pursuant to
this Section 8(a) shall be prepared in accordance with the requirements of a
form for registration promulgated by the United States Securities and Exchange
Commission (the "Commission") under the Act that shall be both permissible by
its terms for use in connection with the method of distribution contemplated by
High River and if the proposed method of distribution shall be an underwriting
of the Option Shares, then, in the opinion of the managing underwriter,
appropriate to such method of distribution. ImClone shall pay the cost of the
registration statements filed under this Section 8(a)(excluding underwriting
discounts, selling commissions and transfer taxes relating to the shares of
ImClone Common Stock owned by High River), and the fees and expenses of High
River's counsel in an amount not to exceed $20,000 per registration statement
and $50,000 in the aggregate for all registration statements.
b. ImClone shall use its best efforts to qualify the Option
Shares covered by any registration statement for offer and sale under the
securities or "Blue Sky" laws of such states of the United States of America as
High River or any underwriter may reasonably request; provided, that ImClone
shall not be required in connection therewith or as a condition thereto to
qualify to do business, to subject itself to general taxation or to file a
general consent to service of process in any such states.
<PAGE>
c. ImClone shall be permitted to withdraw from registration
the offering and sale of any of the Option Shares registered under a
registration statement that are not sold prior to cessation of the distribution
thereof, by the underwriter in the case of an underwritten sale or within nine
(9) months after the effective date of such registration statement in the case
of a sale on a national securities exchange or through brokers in the
over-the-counter market.
d. If, pursuant to the provisions of this Agreement, ImClone
shall register under the Act shares of ImClone Common Stock held by High River,
ImClone agrees:
i. As soon as practicable after the effective
date of the registration statement relating to such shares and for the
applicableperiod thereafter during which a prospectus may be required by law to
be delivered in connectionwith the sales by an underwriter with respect to such
shares, and in the case of a registration for sale on a national securities
exchange or through brokers in the over-the-counter market for up to eight
months after such effective date if by law required for such delivery, to
furnish the managing underwriter with respect to such underwritten public sale
and to High River with such number of copies of each of the registration
statement and the prospectus relating to the shares of ImClone Common Stock
covered thereby as such managing underwriter and High River may from time to
time reasonably request;
ii. To notify High River, as soon as practicable
after it receives notification thereof, of the time when a registration
statement has become effective or any supplement to any prospectus forming part
of such registration statement has been filed;
iii. To notify High River promptly of any request
by the Commission for the amendment or supplementation of a
registration statement or prospectus, or for additional
information;
iv. To prepare and file with the Commission
promptly upon the request of High River, any amendment of, or supplement to, a
registration statement or prospectus relating to information respecting High
River which, in the opinion of counsel to High River, may be necessary or
advisable in connection with the distribution of the registered shares; and
v. To advise High River promptly in the event
that it receives notice or obtains knowledge of the issuance of a stop order by
the Commission suspending the effectiveness of any such registration statement
or of the initiation or threat of any proceeding for that purpose, and to
promptly use its best efforts to prevent the issuance of any stop order and to
obtain the withdrawal of any stop order in the event that one is issued.
<PAGE>
e. The registration rights granted to High River pursuant to
the terms of this Section 8 may not be transferred to or exercised by any other
entity, other than to any permitted assignee of this Agreement as set forth in
Section 9(a) hereof.
f. ImClone agrees that it will:
i. To the extent permitted by applicable law,
indemnify and hold harmless High River,any of its officers, directors, and each
person who controls any such person within the meaning of the Act in connection
with any registration statement filed pursuant to this Agreement, against any
losses, claims, damages or liabilities, joint or several, to which any such
person may become subject, whether under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof):(A) are
caused by any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which any shares of ImCloneCommon
Stock were, pursuant to any of the provisions of this Agreement, registered
under the Act, any prospectus contained therein, any amendment thereof or
supplement thereto or any documents incorporated by reference into any of the
foregoing; or (B) are caused by the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading; and
ii. Reimburse High River, its officers,
directors, and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action arising under clause (i) of this
Section 8(f).
The parties agree that ImClone will not be liable under clauses (i) or (ii) of
Section 8(f) to the extent that any such loss, claim, damage, expense or
liability arises out of, or is based upon, an untrue statement, alleged untrue
statement, omission or alleged omission so made in reliance upon and in
conformity with written information furnished by,or on behalf of, High River or
the person seeking indemnification specifically for use in the preparation of
such registration statement or prospectus contained therein oramendment thereof
or supplement thereto; or the failure of High River to fulfill its obligations
to ImClone under clause(i) of Section 8(g). In addition, the parties agree that
ImClone will not be liable under clauses(i) or (ii) of Section 8(f) for amounts
paid in settlement of any loss, claim, damage, liability, or action if such
settlement is effected without the consent of ImClone (which consent shall not
be unreasonably withheld); provided, that upon the receipt by ImClone of notice
of any claim referred to in Section 8(f), ImClone shall have delivered to High
River proof acceptable to High River in itssole discretion that ImClone has the
financial ability to discharge its indemnification obligation with respect to
such claim.
<PAGE>
g. High River agrees:
i. If High River shall request registration as
provided herein, it shall furnish to ImClone such information as may be
reasonably requested by ImClone in connection with such registration and will
cooperate to cause the registration statement to become effective as aforesaid;
ii. To the extent permitted by applicable law,to
indemnify and hold harmless ImClone, each of its directors and each of its
officers who have signed any registration statement, and each person, if any,
who controls ImClone within the meaning of the Act, against any losses, claims,
damages or liabilities, joint or several (or actions in respect thereof): (A)
caused by any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which any sharesof ImClone Common
Stock were, pursuant to any of the provisions of this Agreement, registered
under the Act, any prospectus contained in such registration statement, or any
amendment thereof or supplement thereto; or (B) caused by any omission or
alleged omission to state a material fact required to be stated therein, or
necessary to make the statement contained therein not misleading in lightof the
circumstances under which they were made; in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission, or alleged omission, was so made in reliance upon,and in conformity
with, written information furnished by, or on behalf of, High River,
specifically for use in the preparation of such registration statement or
prospectus contained therein or amendment thereof or supplement thereto, or is
attributable to High River's failure to carry out its obligations under clause
(i) of this Section 8(g); and
iii. That it will reimburse any legal or other
expenses reasonably incurred by ImClone or any such director, officer, or
controlling person in connection with investigating or defending any suchloss,
claim, damage, liability or action arising under clause (ii) of this Section
8(g).
h. Promptly after receipt by an indemnified party pursuant to
the provisions of Sections 8(f) or 8(g) of notice of the commencement of any
action involving a claim referred to in such Sections, such indemnified party
will notify the indemnifying party of the commencement thereof if a claim
thereto is to be made against the indemnifying party; provided, that the
omission so to notify the indemnifying party shall not relieve an indemnifying
party from any liability that it may have to any indemnified party under the
provisions of this Agreement unless the failure to so notify the indemnifying
party shall have materially prejudiced its ability to defend such action.In the
event that any such action is brought against any indemnified party and it duly
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and,to the extent that it may wish,
jointly with any other indemnifying party, similarly notified, to assume the
<PAGE>
defense of such action, with counsel reasonably satisfactory tosuch indemnified
party; and after notice from the indemnifying party tosuch indemnified party of
its election so to assume the defense of such action, the indemnifying party
will not be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
of such action other than reasonable costs of investigation.
i. Notwithstanding anything to the contrary set forth herein,
if ImClone at any time shall register shares of ImClone Common Stock for sale
for its own account, High River shall, upon the written request of ImClone,not
publicly sell, make any short sale of, grant any option for the purchase of,or
otherwise dispose of any shares of ImClone Common Stock owned by High River
(other than those included in such registration) without the prior written
consent of ImClone, to the extent and for the period (not exceeding 60 days)
that all directors and officers of ImClone (other than directors and officers
holding not more than 25,000 shares of Common Stock(as adjusted for stock
dividends, stock splits, combinations of shares, or similar events) in the
aggregate) are subject to the same restriction.
9. Miscellaneous.
a. Assignment. This Agreement shall not be
assigned by ImClone. High River may assign this Agreement and all of its rights
hereunder to any affiliate or to its successor as a result of any merger,
consolidation or transfer of all or substantially all of its assets. This
Agreement shall be binding on each of High River and ImClone and their
respective successors and permitted assigns.
b. Entire Agreement; Amendments. This Agreement
states the entire agreement reached between the parties hereto with respect to
the transactions contemplated hereby and may not be amended or modified except
by written instrument duly executed by the parties hereto. Any and all previous
or contemporary agreements and understandings between the parties regarding the
subject matter hereof, whether written or oral, are superseded by this
Agreement.
c. Notices. All notices and other
communications given or made pursuant hereto shall be in writing and shall be
deemed to have been duly given or made upon receipt, if made or given by hand
delivery, telecopier or facsimile transmission, or Federal Express or other
reputable overnight courier service, or upon receipt by registered or certified
mail(postage prepaid, return receipt requested), at the following addresses (or
at such other address for a party as shall be specified by like notice):
i. if to High River:
High River Limited Partnership
<PAGE>
100 South Bedford Road
Mt. Kisco, New York 10549
Attn: Carl C. Icahn
(or such other address as may have been furnished in writing by
High River to ImClone)
with a copy to:
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street
New York, New York 10036
Attention: Marc Weitzen, Esq.
ii. if to ImClone:
ImClone Systems Incorporated
180 Varick Street
New York, New York 10014
Attn: Samuel D. Waksal, Ph.D.
President and Chief Executive
Officer
(or such other address as may have been furnished to High River
in writing by ImClone)
with a copy to:
Howard, Darby & Levin
1330 Avenue of the Americas
New York, New York 10019
Attn: Lawrence A. Darby, III, Esq.
d. Governing Law. This Agreement shall be governed by, and
interpreted under, the laws of the State of New York applicable to contracts
made and to be performed therein without regard to conflicts of law principles.
e.Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.It shall not be necessary in making
proof of this Agreement or any counterpart hereof to account for any of the
other counterparts.
f. Effect of Headings. The section headings herein
are for convenience only and shall not affect the construction
hereof.
g. Severability. Any provision of this Agreement
that may be prohibited or unenforceable in law or equity in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof. Any such
<PAGE>
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by law,the parties hereby waive any provision of law that renders any
provision of this Agreement prohibited or unenforceable in any respect. In
addition, in the eventof any such prohibition or unenforceability, the parties
agree that it is their intention and agreement that any such provision which is
held or determined to be prohibited or unenforceable, as written, in any
jurisdiction shall nonetheless be in force and binding to the fullest extent
permitted by law of such jurisdiction as though such provision had been written
in such a manner and to such an extent as to be enforceable therein under the
circumstances.
h. Survival of Representations, Warranties and Covenants. All
of the representations, warranties and covenants contained in this Agreement
shall survive the execution and delivery of this Agreement.
i. Remedies Not Exclusive; Specific Performance. The rights
and remedies in this Agreement shall be deemed to be in addition to, and not in
limitation of, all other rights and remedies that would otherwise be available
to the parties hereto including, without limitation, any actions for breach of
contract. The exercise or attempted exercise by either party of any such rights
or remedies shall not preclude the simultaneous or later exercise by such party
of any or all other such rights or remedies available at law, in equity or
otherwise. No course of dealing by either party, or any delay, omission or
failure of any party in exercising or enforcing any rights or remedies under
this Agreement shall operate as a waiver of such right or remedy or any other
rights or remedies of such party.The parties agree that each party, in addition
to all other remediessuch party may have hereunder, at law or otherwise, shall
have the right to enforce such party's rights under this Agreement by an action
or actions for specific performance, injunction or other appropriate equitable
remedies. In furtherance and not in limitation of the foregoing, ImClone agrees
that in the event of its breach of the provisions of Section 8 hereof, High
River shall be entitled, in addition to all other remedies to which it may be
entitled, to temporary or permanent injunctive or mandatory relief or specific
performance without the necessity of proving damages.
j. Binding Effect. This Agreement and the rights and
interests granted herein shall be binding upon, and shall inure
to the benefit of, the parties and their
<PAGE>
respective successors (whether by merger or otherwise) and
permitted assigns.
IN WITNESS WHEREOF, High River and ImClone have caused this
Agreement to be executed as of the date first above written by their respective
officers thereunto duly authorized.
IMCLONE SYSTEMS INCORPORATED
By: _______________________
Name:
Title:
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP.,
INC., General Partner
By: _________________________
Name:
Title:
(Signature Page to Option from ImClone to High Riverfor up to 150,000 shares of
ImClone Common Stock)
<PAGE>
EXHIBIT 3
OPTION AGREEMENT
OPTION AGREEMENT dated as of April 27, 1995 (the "Agreement"), between
ImClone Systems Incorporated, a Delaware Corporation ("ImClone"),and High River
Limited Partnership, a Delaware limited partnership ("High River").
WHEREAS, pursuant to an option agreement of even date,High River has
agreed to grant to ImClone a certain option (the "Cadus Option") pursuant to
which High River will sell to ImClone, upon the terms and conditions contained
therein, 1,050,000 shares of Common Stock, $.001 par value per share, and
2,188,184 shares of Series A Preferred Stock, $.001 par value per share, of
Cadus Pharmaceutical Corporation, a Delaware corporation;
WHEREAS, as consideration for the grant by High River of the Cadus
Option, ImClone has agreed to grant to High River the option described herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
1. Grant of Option. ImClone hereby grants to High River an
option (the "Option")to purchase, on the terms and conditions set forth herein,
300,000 shares of common stock of ImClone, par value $.001 per share ("ImClone
Common Stock") for a price per share equal to $0.50 (the "Exercise Price"),
subject to adjustment pursuant to Section 4 hereof (the "Option Shares"). The
Option granted hereby shall terminate and expire at 5:00 p.m., New York City
time, on April 27, 2000 (the "Expiration Date").
2. Exercise of Option. High River may exercise this Option in
whole or in part at any time from timeto time commencing on the date hereof and
continuing through the Expiration Date.
3. Exercise of Option.
a. To exercise the Option, High River shall give
written notice to ImClone of such exercise, which notice shall specify the
number of Option Shares to be purchased and the place, date and time designated
by High River for the closing of such purchase, which date shall not be less
than 5 business days nor more than 15 business days after the date of such
notice. Notwithstanding any provision of this Agreement to the contrary, the
giving of any exercise notice by High River shall not obligate High River to
consummate any purchase hereunder.
b. At each closing:(i) High River will (x) pay
to ImClone, by delivery of a certified or bank cashier's check
payable in immediately available funds, an amount equal to the
-26-
<PAGE>
product of the Exercise Price and the number of Option Shares specified in the
applicable exercise notice and (y) provide to ImClone a letter signed by High
River to the effect that (A) High River is acquiring such Option Shares for its
own account, and not with a view to, or for resale in connection with, the
distribution thereof, and that High River has no present intention of
distributing or reselling such shares and(B) High River agrees that such Option
Shares shall not be sold or transferred unless either (1) they first shall have
been registered under the Securities Act of 1933, as amended (the "Act"), and
applicable state securities or blue sky laws or (2) ImClone first shall have
been furnished with an opinion of legal counsel acceptable in form andsubstance
to ImClone (in its sole discretion)to the effect that such sale or transfer is
exempt from the foregoing registration requirement and (ii)ImClone will deliver
to High River one or more certificates, registered in High River's name or in
the name of any nominee designated by High River, representing such Option
Shares.
4. Adjustments
a. In case after the date hereof, ImClone shall
(i) pay a dividend or make a distribution on ImClone Common Stock, (ii)
subdivide the outstanding shares of ImClone Common Stock into a larger numberof
shares of ImClone Common Stock, (iii) combine the outstanding shares of ImClone
Common Stock into a smaller number of shares of ImClone Common Stock or (iv)
increase or decrease the numberof shares of ImClone Common Stock outstanding by
reclassification of the ImClone Common Stock, then the number of Option Shares
purchasable upon exercise of the Option immediately after the happening ofsuch
event shall be adjusted so that High River shall be entitled to receive upon
exercise of this Option, the number of shares of ImClone Common Stock and,in
the case of a dividend or distribution other than in shares of ImClone Common
Stock, the cash, securities or other property so dividended or distributed,that
High River would have owned or have been entitled to receive immediately
following the happening of such event, had the Option been exercised in full
immediately prior thereto (or, in the case of a dividend or distribution on
ImClone Common Stock, immediately prior to the record date therefor), and the
Exercise Price for the Option shall be adjusted in inverse proportion
(calculated to the nearest .001 of a cent). If the amount of any adjustment of
the Exercise Price required pursuant to this Section 4(a)would be less than two
percent (2%) of the Exercise Price in effect at the time such adjustment is
otherwise so required to be made, such amount shall be carried forward and
adjustment with respect thereto made at the time of and together with any
subsequent adjustment which, together with such amount and any otheramount or
amounts so carried forward, shall aggregate at least two percent(2%) of such
Exercise Price. An adjustment made pursuant to this Section 4(a)shall become
effective immediately after the effective date, retroactive to the record date
therefore in the case of a dividend or distribution on shares of ImClone Common
Stock, and shall become effective immediately after the effective
<PAGE>
date in the case of a subdivision, combination or
reclassification of ImClone Common Stock.
b. In case ImClone after the date hereof (i)
shall consolidate with or merge into any other person and shall not be the
continuing or surviving corporation of such consolidation or merger, or (ii)
shall permit any other person to consolidate with or merge into ImClone and
ImClone shall be the continuing or surviving person but,in connection with such
consolidation or merger,ImClone Common Stock shall be changed into or exchanged
for stock or other securities of any other person or cash or any otherproperty,
or (iii) shall transfer all or substantially all of its properties or assets to
any other person or (iv) shall effect a capital reorganization or
reclassification of ImClone Common Stock,then proper provision shall be made so
that High River, upon any exercise of the Option at any time after the
consummation of such transaction,shall be entitled to receive (at the aggregate
Exercise Price in effect at the time of such consummation for all Option Shares
issuable upon such exercise immediately prior to such consummation), in lieu of
the ImClone Common Stockissuable upon such exercise prior to such consummation,
the amount of securities, cash or other property to which High River would
actually have been entitled as a shareholder upon such consummation if High
River had exercised the Option immediately prior thereto.After the consummation
of any such transaction, "Option Shares" shall refer to such other securities,
cash or other property.
c. Notwithstanding any provision in this
Agreement to the contrary, ImClone will not effect any of the transactions
described in clauses(i) through (iv) of Section 4(b) hereof unless, prior to
the consummation thereof,each person (other than ImClone) which may be required
to deliver any stock, securities, cash or property upon the exercise of the
Option as provided herein shall assume,by written instrument delivered to and
reasonably satisfactory to High River, the obligations of ImClone under this
Agreement.
5. Representations and Warranties of ImClone. ImClone hereby
represents and warrants to High River as follows:
a. Due Authorization, etc. ImClone has all
necessary corporate power and authority to execute and deliver this Agreement.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of ImClone. This Agreement has been duly executed
and delivered by a duly authorized officer of ImClone, constitutes a legal,
valid and binding agreement of ImClone and is enforceable against ImClone in
accordance with its terms, except as such enforceability may be limited by (i)
the effect of bankruptcy,insolvency, reorganization, moratorium, marshalling or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors generally and (ii) general
<PAGE>
principles of equity, whether such enforceability is considered
in a proceeding in equity or at law.
b. Option Shares. All of the Option Shares to
be acquired upon exercise of the Option shall be duly and validly issued, fully
paid and non-assessable and shall be free and clear of any liens, claims,
charges, rights of others, security interests, options or encumbrances of any
nature, including preemptive rights. ImClone has taken all necessary corporate
and other action to authorize, to reserve and to permit it to sell and issue,
and at all times from the date hereof until such time as ImClone'sobligation to
sell and deliver shares of ImClone Common Stock hereunder terminates, will have
reserved for issuance upon exercise of the Option, the maximum number of Option
Shares that High River has the right to purchase hereunder.
c. No Conflicts; No Consents. Neither the
execution and delivery by ImClone of this Agreement nor the performance by
ImClone of its obligations hereunder will: (i) violate or conflict with any
provision of ImClone's Certificate of Incorporation or By-Laws,in each case as
in effect on the date hereof and on the date of any closing hereunder;(ii) with
or without the giving of notice or the passage of time, or both, violate, or be
in conflict with, or permit the termination of,or constitute a default under,
or cause the acceleration of the maturity of, any agreement, debt or obligation
of any nature of ImClone or to which ImClone is a party or it or any of its
properties is bound; (iii) require the consent of any party to any agreement,
instrument or commitment to which ImClone is a party or to which it or any of
its properties is bound; (iv) violate any statute or law or any judgment,
decree, order, regulation or rule of any court, regulatory authority or
governmental agency or authority to which ImClone or any of its properties is
subject; or(v) result in the creation of any lien or other encumbrance on its
assets. No consent, approval or authorization of, or declaration, filing or
registration with,any regulatory authority or governmental agency or authority
is required to be made or obtained by ImClone in connection with the execution,
delivery and performance of this Agreement, the performance by ImClone of its
obligations hereunder or the con summation of the transactions contemplated
hereby. ImClone is not a party to any material contract, commitment or
agreement, nor is ImClone subject to, or bound by,any order, judgment, decree,
law, statute, ordinance, rule, regulation or otherrestriction of any kind or
character, which would prevent ImClone from entering into this Agreement orfrom
consummating the trans actions contemplated hereby.
6. Representation and Warranty of High River. High River
hereby represents and warrants to ImClone as follows:
a. Due Authorization, etc. High River has full
power and authority to execute and deliver this Agreement. The
execution and delivery of this Agreement and the consummation of
<PAGE>
the transactions contemplated hereby have beenduly authorized by all necessary
partnership action on the part of High River. This Agreement has been duly
executed and delivered by a duly authorized signatory of High River,constitutes
a legal, valid and binding agreement of High River and is enforceable against
High River in accordance with its terms, except as such enforceability may be
limited by (i) the effect of bankruptcy, insolvency, reorganization,moratorium,
marshalling or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally and (ii) general
principles of equity, whether such enforceability is considered in aproceeding
in equity or at law.
b. Investment. High River is acquiring this
Option for its own account for investment and not with a view to, orfor sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling the same; and High River has no presentor contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment
providing for the disposition thereof. High River is aware thatthis Option and
the Option Shares are not being registered under the Act or under applicable
state securities or blue sky laws, and that the certificate(s) representing the
Option Shares will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. THE SECURITIES REPRESENTED BY
THIS INSTRUMENT MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED
AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT COVERING
SUCH SECURITIES UNDER THE ACT AND APPLICABLE STATE SECURITIES
OR BLUE SKY LAWS OR (2) AN OPINION OF COUNSEL TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT AND
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS, WHICH OPINION
SHALL BE ACCEPTABLE IN FORM AND SUBSTANCE TO THE COMPANY IN
ITS SOLE DISCRETION."
7. ImClone Covenants. ImClone covenants and agrees that, from
the date hereof through the Expiration Date, it will take all action necessary
so that each of ImClone's representations and warranties contained herein is
true, complete and correct at all times until the termination of ImClone's
obligation to sell and deliver shares of ImCloneCommon Stock hereunder.
8. Registration Under Securities Act.
<PAGE>
a. (i) Upon written request by High River, ImClone will cause
to be prepared and filed a registration statement under the Actrelating to such
number of Option Shares as may be designated by High River and ImClone will use
its best efforts to cause such registration statement to become effective;
provided, however, that High River shall be required to register no less than
150,000 Option Shares under any such registration statement. High River shall
have the right to select the underwriter or underwriters who shall make the
offering, if it is to be underwritten, but High River's selection must be
approved by ImClone,which approval shall not be unreasonably withheld. ImClone
shall keep such registration statement effective until it is permitted to
withdraw the same pursuant to Section 8(c). Notwithstanding anything to the
contrary set forth herein, ImClone may delay the filing or effectiveness of any
registration statement for a period of up to 120 days after the date of a
request for registration pursuant to this Section8(a)(i) if at the time of such
request ImClone is engaged in a firm commitment underwritten public offering.
(ii) If at any time when High River owns any
shares of ImClone Common Stock acquired pursuant to the exerciseof this Option,
ImClone effects a registration of ImClone Common Stock for itsown account or
for the account of any other shareholder of ImClone in connection with the
public offering of such ImClone Common Stock (other than onForm S-4 or Form S-8
or any successor form), it shall allow High River to participate in such
registration; provided, however, if the managing underwritersin such offering
advise ImClone in writing that in their opinion the number ofshares of ImClone
Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering at the proposed offering price,the number of
shares of ImClone Common Stock owned by High River to be included in such
registration shall be reduced to such number that will make theaggregate shares
of ImClone Common Stock so registered not in excess of the numberof shares of
ImClone Common Stock that the underwriters believe can be soldat the proposed
price. In connection with any offering involving an underwriting of ImClone
Common Stock for ImClone's account or for the account of any other shareholder,
ImClone shall not be required under this subparagraph (ii)to include any of
High River's ImClone Common Stock in such underwriting unlessHigh River accepts
the reasonable terms of the underwriting as agreed upon byImClone or such other
shareholder, accepts such underwriters selected by ImClone or such other
shareholder and agrees to enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with such underwriters.
ImClone shall be under no obligation to complete any registration of ImClone
Common Stock it proposes to make and shall incur noliability to High River for
its failure to do so (and its failure to complete the registration of shares of
ImClone Common Stock included in such registration by High River in connection
therewith).
<PAGE>
(iii) If, during the period when any registration
statement covering shares of ImClone Common Stock owned by High River is
effective, any event occurs as a result of which theprospectus included in such
registration statement, as then in effect,would include an untrue statement of
a material fact or omit to state a materialfact required to be stated therein,
or necessary in order to make the statementsmade not misleading in light of the
circumstances then existing, or it shallbe necessary to amend or supplement
such prospectus to comply with applicable law, ImClone will forthwith notify
High River thereof and, at High River's request, ImClone will (a) prepare and
file under the Act such amendments and supplements as may be necessary to keep
available a prospectus covering such registered stock meeting the requirements
of the Act, and (b) furnish to the underwriters, if any, and to High River such
number of copies of each of the registrationstatement and prospectus as amended
or supplemented as may reasonably be requested from time to time; provided,
however, that once High River is notified by ImClone of the happening of any
event of the kind described above in this subparagraph (iii), High River will
thereafter immediately discontinue the distribution of such registration
statement or prospectus and the disposition of ImCloneCommon Stock pursuant to
such registration statement or prospectus untilsuch time as High River has
received from ImClone a copy or copies of the amended or supplemental
registration statement or prospectus contemplated by this subparagraph (iii),
and if so directed by ImClone in its notice, High River shall deliver toImClone
all copies, other than permanent file copies, then in High River'spossession of
the registration statement or prospectus covering such ImClone Common Stock;
provided, further, that ImClone shall deliver to High River,within 15 days of
ImClone's delivery of its notice, such number of copies of the amended or
supplemental registration statement or prospectus as reasonably requested by
High River.
(iv) Any registration statement filed pursuant to
this Section 8(a) shall be prepared in accordance with the requirements of a
form for registration promulgated by the United States Securities and Exchange
Commission (the "Commission") under the Act that shallbe both permissible by
its terms for use in connection with the method of distribution contemplated by
High River and if the proposed method of distribution shall be anunderwriting
of the Option Shares, then, in the opinion of the managing underwriter,
appropriate to such method of distribution. ImClone shall pay the cost of the
registration statements filed under this Section 8(a)(excluding underwriting
discounts, selling commissions and transfer taxes relating to the shares of
ImClone Common Stock owned by High River), and thefees and expenses of High
River's counsel in an amount not to exceed $20,000 per registration statement
and $50,000 in the aggregate for all registration statements.
b. ImClone shall use its best efforts to qualify the Option
Shares covered by any registration statement for offer and sale under the
securities or "Blue Sky" laws of such states of
<PAGE>
the United States of America as High River or any underwriter may reasonably
request; provided, that ImClone shall not be requiredin connection therewith or
as a condition thereto to qualify to do business, to subject itself to general
taxation or to file a general consent to service ofprocess in any such states.
c. ImClone shall be permitted to withdraw from registration
the offering and sale of any of the Option Shares registered under a
registration statement that are not sold prior to cessationof the distribution
thereof, by the underwriter in the case of an underwritten sale or within nine
(9) months after the effective date of such registration statement in the case
of a sale on a national securities exchange or through brokers in the
over-the-counter market.
d. If, pursuant to the provisions of this Agreement, ImClone
shall register under the Act shares of ImClone Common Stock held byHigh River,
ImClone agrees:
i. As soon as practicable after the effective
date of the registration statement relating to such shares and for the
applicable period thereafter during which a prospectusmay be required by law to
be delivered in connection with the sales by anunderwriter with respect to such
shares, and in the case of a registration for sale on a national securities
exchange or through brokers in the over-the-counter market for up to eight
months after such effective date if by law required for such delivery, to
furnish the managing underwriter with respectto such underwritten public sale
and to High River with such number of copies of each of the registration
statement and the prospectus relating tothe shares of ImClone Common Stock
covered thereby as such managing underwriter and High River may from time to
time reasonably request;
ii. To notify High River,as soon as practicable
after it receives notification thereof, of the time when a registration
statement has become effective or any supplement to any prospectus forming part
of such registration statement has been filed;
iii. To notify High River promptly of any request
by the Commission for the amendment or supplementation of a
registration statement or prospectus, or for additional
information;
iv. To prepare and file with the Commission
promptly upon the request of High River, any amendment of, or supplement to, a
registration statement or prospectus relating to information respecting High
River which, in the opinion of counsel to High River, may be necessary or
advisable in connection with the distribution of the registered shares; and
v. To advise High River promptly in the event
that it receives notice or obtains knowledge of the issuance of a
stop order by the Commission suspending the effectiveness of any
<PAGE>
such registration statement or of the initiation or threatof any proceeding for
that purpose, and to promptly use its best efforts toprevent the issuance of
any stop order and to obtain the withdrawal of any stoporder in the event that
one is issued.
e. The registration rights granted toHigh River pursuant to
the terms of this Section 8 may not be transferred toor exercised by any other
entity, other than to any permitted assignee of thisAgreement as set forth in
Section 9(a) hereof.
f. ImClone agrees that it will:
i. To the extent permitted by applicable law,
indemnify and hold harmless High River, any of its officers,directors, and each
person who controls any such person within the meaning of theAct in connection
with any registration statement filed pursuant to this Agreement, against any
losses, claims, damages or liabilities, joint or several, to which any such
person may become subject, whether under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof):(A) are
caused by any untrue statement or alleged untrue statement of any materialfact
contained in any registration statement under which any shares of ImCloneCommon
Stock were, pursuant to any of the provisions of this Agreement, registered
under the Act, any prospectus contained therein, any amendment thereof or
supplement thereto or any documents incorporated by reference intoany of the
foregoing; or (B) are caused by the omission or alleged omission to state
therein a material fact required to be stated therein or necessaryto make the
statements therein in light of the circumstances under which theywere made not
misleading; and
ii. Reimburse High River, its officers,
directors, and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating ordefending any
such loss, claim, damage, liability or action arising under clause(i) of this
Section 8(f).
The parties agree that ImClone will not be liable under clauses(i) or (ii) of
Section 8(f) to the extent that any such loss, claim, damage, expense or
liability arises out of, or is based upon, an untrue statement, alleged untrue
statement, omission or alleged omission so made in reliance upon and in
conformity with written information furnished by, or on behalf of,High River or
the person seeking indemnification specifically for use in thepreparation of
such registration statement or prospectus contained therein oramendment thereof
or supplement thereto; or the failure of High River to fulfillits obligations
to ImClone under clause (i) of Section 8(g). In addition, theparties agree that
ImClone will not be liable under clauses (i) or (ii) of Section 8(f)for amounts
paid in settlement of any loss, claim, damage, liability, or action if such
settlement is effected without the consent of ImClone (which consent shall not
be unreasonably withheld); provided, that upon the receipt by
<PAGE>
ImClone of notice of any claim referred to in Section 8(f), ImClone shall have
delivered to High River proof acceptable to High River in itssole discretion
that ImClone has the financial ability to discharge its indemnification
obligation with respect to such claim.
g. High River agrees:
i. If High River shall request registration as
provided herein, it shall furnish to ImClone such information as may be
reasonably requested by ImClone inconnection with such registration and will
cooperate to cause the registrationstatement to become effective as aforesaid;
ii. To the extent permitted by applicable law, to
indemnify and hold harmless ImClone, each of its directors and each of its
officers who have signed any registration statement, and each person, if any,
who controls ImClone within the meaning of the Act,against any losses, claims,
damages or liabilities, joint or several(or actions in respect thereof): (A)
caused by any untrue statement or alleged untrue statement of any materialfact
contained in any registration statement under which any shares of ImCloneCommon
Stock were, pursuant to any of the provisions of this Agreement, registered
under the Act, any prospectus contained in such registration statement, or any
amendment thereof or supplement thereto; or (B) caused by any omission or
alleged omission to state a material fact required to be stated therein, or
necessary to make the statement contained therein not misleadingin light of the
circumstances under which they were made; in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission, or alleged omission, was so made in reliance upon,and in conformity
with, written information furnished by, or on behalf of, High River,
specifically for use in the preparation of such registration statement or
prospectus contained therein or amendment thereof or supplement thereto, or is
attributable to High River's failure to carry out its obligations under clause
(i) of this Section 8(g); and
iii. That it will reimburse any legal or other
expenses reasonably incurred by ImClone or any such director, officer, or
controlling person in connection with investigating or defending any suchloss,
claim, damage, liability or action arising under clause (ii)of this Section
8(g).
h. Promptly after receipt by an indemnified party pursuant to
the provisions of Sections 8(f) or 8(g) of notice of the commencement of any
action involving a claim referred to in such Sections, such indemnified party
will notify the indemnifying party of the commencement thereof if a claim
thereto is to be made against the indemnifying party; provided, that the
omission so to notify the indemnifying party shall not relievean indemnifying
party from any liability that it may have to any indemnified party under the
provisions of this Agreement unless the failure to so notify the indemnifying
party shall have
<PAGE>
materially prejudiced its ability to defend such action. In the event that any
such action is brought against any indemnified party andit duly notifies the
indemnifying party of the commencement thereof, theindemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party, similarly notified, to assume the defenseof such
action, with counsel reasonably satisfactory to such indemnified party; and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action, the indemnifying party will
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection withthe defense
of such action other than reasonable costs of investigation.
i. Notwithstanding anything to the contrary setforth herein,
if ImClone at any time shall register shares of ImClone CommonStock for sale
for its own account, High River shall, upon the written requestof ImClone, not
publicly sell, make any short sale of, grant any option for thepurchase of, or
otherwise dispose of any shares of ImClone Common Stock owned by High River
(other than those included in such registration) without the prior written
consent of ImClone, to the extent and for the period (not exceeding 60 days)
that all directors and officers of ImClone (other than directors and officers
holding not more than 25,000 shares of Common Stock(as adjusted for stock
dividends, stock splits, combinations of shares, or similar events) in the
aggregate) are subject to the same restriction.
9. Miscellaneous.
a. Assignment. This Agreement shall not be
assigned by ImClone. High River may assign this Agreement andall of its rights
hereunder to any affiliate or to its successor as a result of any merger,
consolidation or transfer of all or substantially all of its assets. This
Agreement shall be binding on each of High River and ImClone and their
respective successors and permitted assigns.
b. Entire Agreement; Amendments. ThisAgreement
states the entire agreement reached between the parties heretowith respect to
the transactions contemplated hereby and may not be amended ormodified except
by written instrument duly executed by the parties hereto. Anyand all previous
or contemporary agreements and understandings between the partiesregarding the
subject matter hereof, whether written or oral, are superseded by this
Agreement.
c. Notices. All notices and other
communications given or made pursuant hereto shall be in writing andshall be
deemed to have been duly given or made upon receipt, if made or givenby hand
delivery, telecopier or facsimile transmission, or Federal Express orother
reputable overnight courier service, or upon receipt by registered orcertified
mail (postage prepaid, return receipt requested), at the following
<PAGE>
addresses (or at such other address for a party as shall be
specified by like notice):
i. if to High River:
High River Limited Partnership
100 South Bedford Road
Mt. Kisco, New York 10549
Attn: Carl C. Icahn
(or such other address as may have been furnished in writing by
High River to ImClone)
with a copy to:
Gordon Altman Butowsky Weitzen Shalov &
Wein
114 West 47th Street
New York, New York 10036
Attention: Marc Weitzen, Esq.
ii. if to ImClone:
ImClone Systems Incorporated
180 Varick Street
New York, New York 10014
Attn: Samuel D. Waksal, Ph.D.
President and Chief Executive
Officer
(or such other address as may have been furnished to High River
in writing by ImClone)
with a copy to:
Howard, Darby & Levin
1330 Avenue of the Americas
New York, New York 10019
Attn: Lawrence A. Darby, III, Esq.
d. Governing Law. This Agreement shall be governed by, and
interpreted under, the laws of the State of New York applicable to contracts
made and to be performed therein without regard to conflictsof law principles.
e. Counterparts. This Agreement may be executedin one or more
counterparts, each of which shall be an original, but all ofwhich together
shall constitute one and the same agreement. It shall not be necessaryin making
proof of this Agreement or any counterpart hereof to account forany of the
other counterparts.
<PAGE>
f. Effect of Headings. The section headings herein
are for convenience only and shall not affect the construction
hereof.
g. Severability. Any provision ofthis Agreement that may be
prohibited or unenforceable in law or equity in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof.Any such
prohibition or unenforceability in any jurisdiction shall notinvalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by law, the parties hereby waive any provision of law thatrenders any
provision of this Agreement prohibited or unenforceable in anyrespect. In
addition, in the event of any such prohibition or unenforceability, the parties
agree that it is their intention and agreement that any such provisionwhich is
held or determined to be prohibited or unenforceable, as written, in any
jurisdiction shall nonetheless be in force and binding to the fullest extent
permitted by law of such jurisdiction as though such provision had beenwritten
in such a manner and to such an extent as to be enforceable therein under the
circumstances.
h. Survival of Representations, Warranties and Covenants. All
of the representations, warranties and covenants contained in this Agreement
shall survive the execution and delivery of this Agreement.
i. Remedies Not Exclusive; Specific Performance. The rights
and remedies in this Agreement shall be deemed to bein addition to, and not in
limitation of, all other rights and remedies that would otherwise be available
to the parties hereto including, without limitation, any actions for breach of
contract. The exercise or attempted exercise by eitherparty of any such rights
or remedies shall not preclude the simultaneous orlater exercise by such party
of any or all other such rights or remedies available at law, in equity or
otherwise. No course of dealing by either party, or any delay, omission or
failure of any party in exercising or enforcing any rights or remedies under
this Agreement shall operate as a waiver of suchright or remedy or any other
rights or remedies of such party. The parties agreethat each party, in addition
to all other remedies such party may have hereunder,at law or otherwise, shall
have the right to enforce such party's rights underthis Agreement by an action
or actions for specific performance, injunction orother appropriate equitable
remedies. In furtherance and not in limitation of theforegoing, ImClone agrees
that in the event of its breach of the provisions of Section 8 hereof, High
River shall be entitled, in addition to all other remedies to which it may be
entitled, to temporary or permanent injunctive ormandatory relief or specific
performance without the necessity of proving damages.
j. Binding Effect. This Agreement and the rights and
interests granted herein shall be binding upon, and shall inure
<PAGE>
to the benefit of, the parties and their respective successors (whether by
merger or otherwise) and permitted assigns.
<PAGE>
IN WITNESS WHEREOF, High River and ImClone have caused this
Agreement to be executed as of the date first above written by their respective
officers thereunto duly authorized.
IMCLONE SYSTEMS INCORPORATED
By: _______________________
Name:
Title:
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP., INC.,
General Partner
By: _________________________
Name:
Title:
(signature page to Option from ImClone to High River for up to
300,000 shares of ImClone Common Stock)
<PAGE>
