SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 7)
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))
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| Common Stock, par value $0.001 per share, and
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45245W109 |
| Associated Preferred Stock Purchase Rights |
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| (Titles of classes of securities)
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(CUSIP number of class of securities) |
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, NY 10022
Tel: (212) 906-1770
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CALCULATION OF FILING FEE |
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Transaction Valuation* |
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Amount of Filing Fee** |
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$6,620,562,970
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260,189 |
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Estimated for purposes of calculating the filing fee only. This amount assumes the purchase
of up to 94,579,471 shares of common stock, par value $0.001 per share, of ImClone, and the
associated preferred stock purchase rights, at a purchase price of $70.00 per share. Such
number of shares consists of (i) 88,612,596 shares of common stock issued and outstanding as
of September 30, 2008, and (ii) 5,966,875 shares of common stock that are expected to be
issuable before the expiration of the Offer under vested options and restricted stock units
with respect to ImClone shares. |
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The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), equals 0.00003930 of the transaction
valuation. |
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid: $260,189
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Filing Parties: Eli Lilly and Company
and Alaska Acquisition Corporation |
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Form or Registration No. SC-TO-T
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Date Filed: October 14, 2008 |
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
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x
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third-party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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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: x
This Amendment No. 7 (this “Amendment”) amends and supplements the Tender Offer Statement on
Schedule TO (as amended, the “Schedule TO”), originally filed with the Securities and Exchange
Commission on October 14, 2008, by Alaska Acquisition Corporation, a Delaware corporation (the
“Purchaser”) and a wholly-owned subsidiary of Eli Lilly and Company, an Indiana corporation
(“Lilly”), relating to a tender offer by the Purchaser 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, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated October 14, 2008, and in the related Letter of
Transmittal, copies of which are filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B)
respectively. Capitalized terms used and not otherwise defined in this Amendment shall have the
meanings assigned to such terms in the Schedule TO.
Item 11. Additional Information
Item 11 of the Schedule TO is hereby amended and supplemented by including the following:
“The Offer expired at 12:00 midnight, New York City time, on Thursday, November 20, 2008.
Based on information provided by the Depositary, as of the Expiration Date, approximately
85,401,945 Shares (including 5,175,275 Shares that were tendered pursuant to guaranteed
delivery procedures) were validly tendered and not withdrawn in the Offer, representing
approximately 95.5 percent of ImClone’s issued and outstanding Shares. All validly tendered Shares have
been accepted for payment in accordance with the terms of the Offer.
Lilly intends to complete the acquisition of ImClone through a short-form merger on or about
Monday, November 24, 2008, in which all outstanding Shares not purchased by the Purchaser in the
Offer will be converted into the right to receive $70.00 net per Share in cash.
On November 21, 2008, Lilly and ImClone issued a joint press release announcing the completion
of the Offer. A copy of the press release is filed as Exhibit (a)(1)(J) to the Schedule TO and is
incorporated herein by reference.”
Item 12. Exhibits
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit
thereto:
“(a)(1)(J) Joint Press Release issued by Lilly and ImClone on November 21, 2008.”