-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OJ2OmqfFQfgH9GcOYiWFGQeLldo8IGzbsbD4cOvlLfpv7dbLDEEHVTtq8fNzr3zi YVXlflgLHxxLXsUBQEaYMQ== 0000921749-99-000206.txt : 19991020 0000921749-99-000206.hdr.sgml : 19991020 ACCESSION NUMBER: 0000921749-99-000206 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991018 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IMCLONE SYSTEMS INC/DE CENTRAL INDEX KEY: 0000765258 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 042834797 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-42743 FILM NUMBER: 99730250 BUSINESS ADDRESS: STREET 1: 180 VARICK ST CITY: NEW YORK STATE: NY ZIP: 10014 BUSINESS PHONE: 2126451405 MAIL ADDRESS: STREET 1: 180 VARICK ST CITY: NEW YORK STATE: NY ZIP: 10014 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HIGH RIVER LIMITED PARTNERSHIP /NY/ CENTRAL INDEX KEY: 0000928464 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 100 SOUTH BEDFORD RD CITY: MT KISCO STATE: NY ZIP: 10549 MAIL ADDRESS: STREET 1: 100 S BEDFORD RD CITY: MT KISKO STATE: NY ZIP: 10549 SC 13D 1 IMCLONE SYSTEMS INCORPORATED 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). 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. 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. 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. 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. 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 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:
NAME NUMBER OF APPROXIMATE PERCENTAGE SHARES OF OUTSTANDING SHARES High River 1,294,100 5.1%
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.
DATE NUMBER OF SHARES PRICE PER SHARE PURCHASED 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
(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. 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) 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
Name Position Principal Occupation - ---- -------- -------------------- Carl C. Icahn Member See Item 2 herein Officer of various Icahn affiliated entities
EX-99 2 EXHIBIT 1 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 EX-99 3 EXHIBIT 2 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 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. 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. 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 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 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 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. 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. 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. 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 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 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 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 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) EX-99 4 EXHIBIT 3 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- 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 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 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 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. 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). (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 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 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 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 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 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. 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 to the benefit of, the parties and their 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 River for up to 300,000 shares of ImClone Common Stock) -----END PRIVACY-ENHANCED MESSAGE-----