SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

IMCLONE SYSTEMS INCORPORATED

(Name of Subject Company (Issuer))

 

 

ALASKA ACQUISITION CORPORATION
ELI LILLY AND COMPANY

(Names of Filing Persons (Offerors))

 

 

 

Robert A. Armitage, Esq.
Senior Vice President and General Counsel
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46285
(317) 276-2000
(Name, address and telephone number of person authorized to receive notices and
communications on behalf of the filing person)

 

 

Copies to:

 

M. Adel Aslani-Far, Esq.
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Tel: (212) 906-1770

 

 

CALCULATION OF FILING FEE

 

 

 

Amount Previously Paid:                    Filing Party:

Form or Registration No.                    Date Filed:

 

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

þ  third-party tender offer subject to Rule 14d-1.

 

o  issuer tender offer subject to Rule 13e-4.

 

o  going-private transaction subject to Rule 13e-3.

 

o  amendment to Schedule 13D under Rule 13d-2.

 

Check the following box if the filing is a final amendment reporting the results of the tender offer:  o

 

 

This Tender Offer Statement on Schedule TO (this “Schedule TO”) relates to the offer by Alaska Acquisition Corporation, a Delaware corporation (the “Purchaser”) and a wholly-owned subsidiary of Eli Lilly and Company, an Indiana corporation (“Lilly”), to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share, and the associated preferred stock purchase rights (collectively, the “Shares”), of ImClone Systems Incorporated, a Delaware corporation (“ImClone”), at a purchase price of $70.00 per share (the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 14, 2008 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal”), copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B) respectively. This Schedule TO is being filed on behalf of Lilly and the Purchaser.

 

The information set forth in the Offer to Purchase, including Schedule I thereto, is hereby incorporated by reference in answers to Items 1 through 11 of this Schedule TO, and is supplemented by the information specifically provided herein.

 

 

The information set forth in the “Summary Term Sheet” of the Offer to Purchase is incorporated herein by reference.

 

 

(a) The name of the subject company and the issuer of the securities to which this Schedule TO relates is ImClone Systems Incorporated. ImClone’s principal executive offices are located at 180 Varick Street, New York, New York 10014. The telephone number at ImClone’s principal executive offices is (212) 645-1405.

 

(b) This statement relates to the common stock, par value $0.001 per share, of ImClone and the associated preferred stock purchase rights to purchase Series B Participating Cumulative Preferred Stock, par value $1.00 per share. Based upon information provided by ImClone, there were 88,612,596 shares of common stock issued and outstanding as of September 30, 2008. The information set forth in the “Introduction” of the Offer to Purchase is incorporated herein by reference.

 

(c) The information set forth in Section 6 of the Offer to Purchase, entitled “Price Range of the Shares; Dividends on the Shares” is incorporated herein by reference.

 

 

(a), (b), (c) This Schedule TO is filed by Lilly and the Purchaser. The information set forth in Section 9 of the Offer to Purchase, entitled “Certain Information Concerning Lilly and the Purchaser” and Schedule I to the Offer to Purchase is incorporated herein by reference.

 

 

(a) The information set forth in the Offer to Purchase is incorporated herein by reference.

 

 

(a), (b) The information set forth in the “Introduction,” Section 9, entitled “Certain Information Concerning Lilly and the Purchaser,” Section 11, entitled “Background of the Offer; Past Contacts, Negotiations and Transactions,” Section 12, entitled “Purpose of the Offer; Plans for ImClone; Other Matters” and Section 13, entitled “The Merger Agreement; Other Agreements,” of the Offer to Purchase is incorporated herein by reference.

 

 

(a), (c)(1)-(7) The information set forth in the “Introduction,” Section 7, entitled “Effect of the Offer on the Market for the Shares; NASDAQ Global Select Market Listing and Controlled Company Status; Exchange Act Registration; Margin Regulations,” Section 12, entitled “Purpose of the Offer; Plans for ImClone; Other Matters,” and Section 13, entitled “The Merger Agreement; Other Agreements,” of the Offer to Purchase is incorporated herein by reference.

 

(a), (b), (d) The information set forth in Section 10 of the Offer to Purchase, entitled “Source and Amount of Funds,” is incorporated herein by reference.

 

 

The information set forth in the “Introduction,” Section 9, entitled “Certain Information Concerning Lilly and the Purchaser,” and Section 13, entitled “The Merger Agreement; Other Agreements,” of the Offer to Purchase is incorporated herein by reference.

 

 

(a) The information set forth in Section 11, entitled “Background of the Offer; Past Contacts, Negotiations and Transactions,” Section 12, entitled “Purpose of the Offer; Plans for ImClone; Other Matters,” Section 13, entitled “The Merger Agreement; Other Agreements,” and Section 16, entitled “Fees and Expenses,” of the Offer to Purchase is incorporated herein by reference.

 

 

(a), (b) Not applicable.

 

 

(a)(1) The information set forth in Section 9, entitled “Certain Information Concerning Lilly and the Purchaser,” Section 11, entitled “Background of the Offer; Past Contacts, Negotiations and Transactions,” and Section 13, entitled “The Merger Agreement; Other Agreements,” of the Offer to Purchase is incorporated herein by reference.

 

(a)(2), (3) The information set forth in Section 13, entitled “The Merger Agreement; Other Agreements,” Section 14, entitled “Conditions of the Offer,” and Section 15, entitled “Certain Legal Matters,” of the Offer to Purchase is incorporated herein by reference.

 

(a)(4) The information set forth in Section 7 of the Offer to Purchase entitled “Effect of the Offer on the Market for the Shares; NASDAQ Global Select Market Listing and Controlled Company Status; Exchange Act Registration; Margin Regulations” is incorporated herein by reference.

 

(a)(5) The information set forth in Section 17, entitled “Legal Proceedings,” of the Offer to Purchase is incorporated herein by reference.

 

(b) The information set forth in the Offer to Purchase is incorporated herein by reference.

 

 

 

 

Not applicable.

SIGNATURES

 

After due 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.

 

ALASKA ACQUISITION CORPORATION

 

Name: Gino Santini

Title: President

 

ELI LILLY AND COMPANY

 

Name: Gino Santini

Title: Senior Vice President, Corporate Strategy and Business Development

 

Date: October 14, 2008

INDEX TO EXHIBITS