SC 13D/A 1 sch13da82306.txt IMCLONE 82306 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)* ImClone Systems Incorporated (Name of Issuer) Common Stock, par value $.001 per share (Title of Class of Securities) 45245W109 (CUSIP Number) Marc Weitzen, Esq. General Counsel Icahn Associates Corp. & affiliated companies 767 Fifth Avenue, 47th Floor New York, New York 10153 (212) 702-4388 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 22, 2006 (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 that is the subject of this Schedule 13D, and is filing this schedule because of Sections 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 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 (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON High River Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, OO 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 5,708,800 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 5,708,800 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,708,800 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.78% 14 TYPE OF REPORTING PERSON PN SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON Hopper Investments LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 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 0 8 SHARED VOTING POWER 5,708,800 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 5,708,800 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,708,800 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.78% 14 TYPE OF REPORTING PERSON OO SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON Barberry Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, OO 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 900,800 8 SHARED VOTING POWER 5,708,800 9 SOLE DISPOSITIVE POWER 900,800 10 SHARED DISPOSITIVE POWER 5,708,800 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,609,600 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.85% 14 TYPE OF REPORTING PERSON CO SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON American Real Estate Holdings Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC ,OO 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 4,244,853 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 4,244,853 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,244,853 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.04% 14 TYPE OF REPORTING PERSON PN SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON American Real Estate Partners L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 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 0 8 SHARED VOTING POWER 4,244,853 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 4,244,853 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,244,853 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.04% 14 TYPE OF REPORTING PERSON PN SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON American Property Investors, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 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 0 8 SHARED VOTING POWER 4,244,853 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 4,244,853 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,244,853 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.04% 14 TYPE OF REPORTING PERSON CO SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON Beckton Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 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 0 8 SHARED VOTING POWER 4,244,853 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 4,244,853 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,244,853 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.04% 14 TYPE OF REPORTING PERSON CO SCHEDULE 13D (Amendment No. 3) CUSIP No. 45245W109 1 NAME OF REPORTING PERSON Gail Golden S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS PF 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 15,000 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 15,000 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,000 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.02% 14 TYPE OF REPORTING PERSON IN SCHEDULE 13D (Amendment No.2) 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) / / b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 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 10,854,453 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 10,854,453 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.89% 14 TYPE OF REPORTING PERSON IN SCHEDULE 13D (Amendment No.2) Item 1. Security and Issuer This statement constitutes Amendment No. 3 to the Schedule 13D relating to the Common Shares, $0.001 par value, (the "Shares"), of ImClone Systems Incorporated, a Delaware corporation (the "Issuer"), and amends the Schedule 13D relating to the Shares filed on February 14, 2006, as amended by Amendment No.1 filed on April 24, 2006 and Amendment No. 2 filed on August 14, 2006 (as amended by amendment No. 1 and amendment No. 2, the "Original 13D"), on behalf of the Registrants (as defined in the Original 13D). Capitalized terms used herein and not otherwise defined have the respective meanings ascribed thereto in the Original 13D. The address of the principal executive offices of the Issuer is 180 Varick Street, New York, New York 10014. Item 3. Source and Amount of Funds or Other Consideration Item 3 is hereby amended and restated as follows: As of the time of this filing, the aggregate purchase price of the 10,854,453 Shares owned by Icahn Group was $366,064,393.67 (including commissions). The source of funding for the purchase of these Shares was general working capital of Barberry, High River, and AREH, and pursuant to margin accounts in the regular course of business. As of the time of this filing, the aggregate purchase price of the 15,000 Shares purchased by Ms. Golden was $663,569.97 (including commissions). The source of funding for the purchase of these Shares were personal funds of Ms. Golden. Item 4. Purpose of Transaction Item 4 is hereby amended by adding the following: The Board of Directors of Issuer, following discussions between Carl Icahn and representatives of Issuer, offered to have Mr. Icahn, Alex Denner, who is a current member of the Board and who has just become an employee of one of Mr. Icahn's entities, and two persons recommended to the Issuer by Mr. Icahn, Dr. Charles Woler and Dr. Richard Mulligan, be on the management slate of director nominees for the 2006 annual stockholders meeting of Issuer. Mr. Icahn has agreed to accept management's offer in order to avoid a possible proxy contest which he agrees with Issuer would be disruptive to Issuer and therefore very damaging to it. During those discussions, Mr. Icahn stressed to Issuer's Chairman of the Board, that it is Mr. Icahn's belief that the current Board is far less than ideal, that the Chairman should not be reelected Chairman, and that Mr. Icahn would oppose his reelection as Chairman. In addition, Mr. Icahn indicated that he strongly believes it would be a major error for Issuer to enter into a long-term agreement with its current temporary Chief Executive Officer as that would send a bad signal to Issuer's employees and stockholders given that Mr. Icahn believes that Issuer's CEO should have a significantly stronger background in biotechnology. In Mr. Icahn's view, a major problem for Issuer during the past approximately three years was that Issuer's CEOs did not have that requisite background. In any event, Mr. Icahn favors having the new Board of Directors make the determination as to the CEO's contract. Mr. Icahn intends, if elected, to seek to be a member of the committee of the Board which conducts the search for the new Chief Executive Officer. As part of Issuer's offer, Issuer agreed that if it breached its agreement to add the nominees and either did not add all of them or otherwise withdrew the recommendation that they be elected as part of management's slate, Issuer would give Registrants notice of same. In that case Issuer would afford Registrants 48 hours to give Issuer notice that it wished to propose an alternate slate of nominees and would postpone the meeting so that Registrants would have 28 days from the notice to Registrants to conduct a proxy contest should they desire to do so. A copy of the relevant portions of exchanged e-mails is included as an exhibit hereto and made part hereof. Registrants have not finally determined whether, in those circumstances, it would conduct such a contest, but reserve the right to do so or take any other action available to them. Item 5. Interest in Securities of the Issuer Item 5 is hereby amended and restated as follows: (a) As of the time of this filing: (i) the Icahn Group may be deemed to beneficially own, in the aggregate, 10,854,453 Shares, representing approximately 12.89% of the Issuer's outstanding Shares; and (ii) Ms. Golden owns 15,000 Shares representing approximately 0.02% of the Issuer's outstanding Shares in each case (based upon the 84,217,766 Shares stated to be outstanding as of August 1, 2006 by the Issuer in the Issuer's Form 10Q filed with the Securities and Exchange Commission on August 4, 2006). (b) Each of Barberry and Hopper by virtue of their relationship 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 5,708,800 Shares which High River owns. Each of Barberry and Hopper disclaims beneficial ownership of such Shares for all other purposes. Mr. Icahn by virtue of his relationship to Barberry, Hopper and 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 900,800 Shares which Barberry owns and the 5,708,800 Shares which High River owns. Mr. Icahn disclaims beneficial ownership of such Shares for all other purposes. Mr. Icahn by virtue of his relationship to Ms. Golden (as disclosed in Item 2), may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act) the 15,000 Shares which Ms. Golden owns. Mr. Icahn disclaims beneficial ownership of such Shares for all purposes. Each of Mr. Icahn, Beckton, API, and AREP, by virtue of their relationship to AREH (as disclosed in Item 2) may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act) the 4,244,853 Shares that AREH owns. Each of Mr. Icahn, Beckton, API, and AREP disclaim beneficial ownership of such Shares for all other purposes. (c) The following transactions with respect to the Shares were effected during the past sixty (60) days by the Registrants. All such transactions were effected in the over-the-counter market. No. of Shares Price Per Share Name Date Purchased (including commissions) ---- ---- --------- ----------------------- AREH 8/14/06 97,768 28.68 --------------- -------- --------------- ------------------------ AREH 8/15/06 104,028 28.47 --------------- -------- --------------- ------------------------ AREH 8/16/06 40,758 28.97 --------------- -------- --------------- ------------------------ AREH 8/17/06 30,152 29.56 --------------- -------- --------------- ------------------------ AREH 8/18/06 46,610 29.98 --------------- -------- --------------- ------------------------ AREH 8/21/06 8,995 29.97 --------------- -------- --------------- ------------------------ AREH 8/22/06 29,738 29.98 --------------- -------- --------------- ------------------------ AREH 8/22/06 39,107 30.00 --------------- -------- --------------- ------------------------ High River 8/14/06 152,232 28.68 --------------- -------- --------------- ------------------------ High River 8/15/06 161,981 28.47 --------------- -------- --------------- ------------------------ High River 8/16/06 63,464 28.97 --------------- -------- --------------- ------------------------ High River 8/17/06 46,948 29.56 --------------- -------- --------------- ------------------------ High River 8/18/06 72,577 29.98 --------------- -------- --------------- ------------------------ High River 8/21/06 14,005 29.97 --------------- -------- --------------- ------------------------ High River 8/22/06 46,304 29.98 --------------- -------- --------------- ------------------------ High River 8/22/06 60,893 30.00 Item 6. Contracts, Arrangements, Understandings or Relationship with Respect to Securities of the Issuer Item 6 is hereby amended and restated as follows: Except as set forth in Item 4, none of the Registrants have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits 1. Emails referred to in Item 4 and attached hereto as Exhibit 1. SIGNATURE After reasonable inquiry and to the best of each of the undersigned knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: August 23, 2006 /s/ Carl C. Icahn ----------------- CARL C. ICAHN /s/ Gail Golden --------------- GAIL GOLDEN AMERICAN REAL ESTATE HOLDINGS LIMITED PARTNERSHIP By: American Property Investors, Inc., general partner By: /s/ Keith Meister ----------------- Name: Keith Meister Title: Vice Chairman AMERICAN REAL ESTATE PARTNERS, L.P. By: American Property Investors, Inc., general partner By: /s/ Keith Meister ----------------- Name: Keith Meister Title: Vice Chairman AMERICAN PROPERTY INVESTORS, INC. By: /s/ Keith Meister ----------------- Name: Keith Meister Title: Vice Chairman BECKTON CORP. By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Secretary [Signature Page of Schedule 13D Amendment No. 3 Re: Imclone] BARBERRY CORP. By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Secretary HOPPER INVESTMENTS LLC By: Barberry Corp., sole member By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Secretary HIGH RIVER LIMITED PARTNERSHIP By: Hopper Investments LLC, general partner By: Barberry Corp., sole member By: /s/ Keith Cozza --------------- Name: Keith Cozza Title: Secretary [Signature Page of Schedule 13D Amendment No. 3 Re: Imclone] EXHIBIT 1 --------- From: Marc Weitzen Sent: Wednesday, August 23, 2006 2:46 PM To: 'Victor I LEWKOW' Subject: RE: Board approval Mr. Icahn has authorized me to tell you that he agrees to same and will not be making any nominations today. He therefore understands that the balance of your email regarding the Company's agreement in the event that it breaches its agreement is now in effect. Marc Weitzen, General Counsel Phone: 212-702-4388 Mobile: 917-494-0461 e-mail: mweitzen@sfire.com From: Victor I LEWKOW [mailto:vlewkow@cgsh.com] Sent: Wednesday, August 23, 2006 2:29 PM To: Marc Weitzen Cc: kiesd@sullcrom.com; Lillian Rice; erik.ramanathan@imclone.com Subject: Board approval I confirm that the ImClone Board adopted a resolution today that they will include Carl Icahn, Alex Denner, Charles Woler and Richard Mulligan on the slate of nominees for the 2006 Annual Meeting, and agreeing that if Mr. Icahn agrees to same and thus does not make any nominations today, then the Board agrees not to withdraw or remove any of those four individuals from that slate and if it nevertheless breaches this agreement and withdraws its recommendation of the slate containing those four individuals or never includes them in the actual slate in the proxy statement or removes any of them from the recommended slate, then the Company will do what is necessary so Mr. Icahn then has at least 48 hours to make nominations and will delay or adjourn the annual meeting so that the vote does not take place for at least 28 days from the time the Company gives Mr. Icahn notice that the Company has changed the recommendation or withdrawn it or removed any of those nominees form the slate. [REDACTED] Vic ******************* Victor Lewkow Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Tel: 212-225-2370 Fax (General): 212-225-3999 Fax (Alternate): 212 693-9773 e-mail: vlewkow@cgsh.com This message is being sent from a law firm and may contain confidential or privileged information. If you are not the intended recipient, please advise the sender immediately by reply e-mail and delete this message and any attachments without retaining a copy.