ImClone

Massachusetts' State-Boston Pension Fund has stepped in with a lawsuit to block Eli Lilly and Co.'s $6.5 billion deal for ImClone Systems Inc., Reuters reported Oct. 27, on the grounds that it is unfair to stockholders. They accuse ImClone chairman Carl Icahn, the board and the company of breaching their fiduciary responsibility. Among the charges are blocking alternatives, Reuters noted. A hearing is reportedly scheduled for Thursday.

Nearly a week after emerging as the mystery bidder for ImClone, Eli Lilly had in hand a $70 per share, or $6.5 billion deal for the biotech, it said Oct. 6. The deal trumped the $60 per share, and later $62 per share, unsolicited bid Bristol-Myers Squibb Co. offered the target, both of which were rejected by Icahn.

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The target said Sept. 29 an unnamed bidder had indicated it would either make a formal bid or walk away from the auction by Oct. 1. The bidder, which the Wall Street Journal revealed to be Lilly Oct. 1, proposed a tentative $70 per share offer, ImClone said. The news came days after ImClone rejected as too low a sweetened, $62 per share bid from marketing partner Bristol-Myers Squibb Co. revealed Sept. 22. Bristol-Myers bumped its offer to $62 per share from $60 and said it would take its $4.7 billion unsolicited bid directly to shareholders.

That news came nearly two weeks after ImClone, as expected, said it had informed Bristol-Myers its then-$4.5 billion offer for the 83% of the company it does not own was insufficient, following a special committee review. Also in the statement, Icahn acknowledged talks with a CEO of a "large pharmaceutical company," which led to a $70 per share offer for ImClone, a $10 per-share bump from Bristol-Myers' then-bid.

The Deal's Alex Lash wondered at the time which company might be the suitor. Merck KGaA and Takeda Pharmaceutical Co. Ltd. are both foreign pharmas that have a weak dollar to their advantage, or maybe it was Pfizer, which staged a recent push deeper into biotech and reorganized oncology operations.

Fending off the takeover offer from Bristol-Myers, ImClone was said in August to have turned to J.P. Morgan Chase & Co. to advise as it explored options. The mid-August news came days after Icahn -- who landed the ImClone chairman role nearly two years earlier -- rejected the bid for the 83% of ImClone the bidder does not already own, saying it "substantially undervalues" the company and that the board had been considering splitting the company in two: one half to focus on colon, head and neck cancer drug Eribtux, which it co-markets with Bristol-Myers, and another to focus on its pipeline of other drugs for cancer treatments.

Lash raised the question Aug. 4 whether ImClone really wants to split in two or whether it was just a negotiating tactic dreamed up by Icahn. Bristol-Myers put forth its offer July 31. 

Icahn took over as chairman of ImClone in late October 2006 after a grueling battle for control. Lash asked at the time whether anyone wanted to be his CEO. He wrote:

Icahn and Co. have also narrowed the field by insisting on someone with strong biotech experience. Anything less would be seen as either hypocrisy or abdication of duty, seeing how Icahn in his takeover fight publicly berated the now-former management team as lacking biotech savvy. As [Christian & Timbers vice chairman Stephen ] Mader and other observers point out, Icahn's fiery, often insulting rhetoric may have helped win the battle, but it limits his options in the war.

ImClone named John H. Johnson CEO in August 2007, having most recently served as company group chairman of Johnson & Johnson's worldwide biopharmaceuticals division. Once Icahn and his team members were installed in October 2006, Alex Denner and two others came together to run the company as an executive committee.

The last battle for control of ImClone came to an end in August 2006. Icahn won his prize, control of the company, and then-interim chief executive Joseph L. Fischer resigned his post and relinquished his own seat. The saga at the time marked the latest chapter in the company's storied history.

AND THEN THERE WAS ONE

Icahn's last victory came Oct. 20, 2006, when he won yet another board seat, this time for ally Peter Liebert, which left him just one seat short of a controlling majority.

• Ten days earlier, two Icahn foes stepped down from the Imclone board, two weeks after Icahn went public with cries for the ouster of half the board. The news that chairman David Kies and William Crouse would step down came just one week after details emerged surrounding the stalled sale of the company in August 2006.

New York-based ImClone said in a regulatory filing Oct. 4, 2006, that Icahn had the month before refused to support a $36 a share buyout offer (from to Paris' Sanofi-Aventis SA according to the New York Times) -- which carried a 32% premium to the company's stock at the time -- bringing about the unfruitful end to a search for a buyer that began in January.

• Icahn responded with a filing of his own, saying that if the board had thought the offer to be compelling, it should have approved it and tried to win stockholder' support. Then, as Lash pointed out, he took a dig of his own:

  "I believe that ImClone is worth more than $36 a share if it is run by competent people, including competent high-level management supervised by a competent Board of Directors."

ImClone's main beef seemed to have been that it believed Icahn was vying for control of the company without paying a premium to all shareholders. ImClone hired Lazard in January 2006 for a strategic review, which ended with no sale, but vocal activism from Icahn. Much transpired in the months between the stalled auction and Icahn's victory.

• Icahn had called for the ouster of half the board including Kies and Fischer, who he said were responsible for much of the company's troubles. ImClone called his move a distraction.
• ImClone and Icahn said in a filing Aug. 23, 2006 they would nominate Icahn and three of his selections to the company's board at the Sept. 20 shareholder's meeting, to avoid a proxy fight.
• After Kies wasn't ousted at the company's annual shareholder meeting Sept. 20, Icahn turned to a consent solicitation, a way of waging a proxy fight without waiting for the next shareholder meeting. The solicitation begins when the company receives the first shareholder ballot, unless the company sets a record date, and the solicitation period lasts 60 days. ImClone does not forbid consent solicitations, as many other companies do.
• ImClone and Icahn said in a filing Aug. 23, 2006 they would nominate Icahn and three of his selections to the company's board at the Sept. 20 shareholder's meeting, to avoid a proxy fight.
• Through a letter filed Sept. 28, Icahn won the support of Legg Mason Inc. subsidiary CAM North America LLC, which owns 11% of ImClone's stock.

BIOTECH BLUES

Icahn at the time wasn't ImClone's only headache.

• Thousand Oaks, Calif. rival Amgen Inc. received FDA approval Sept. 27, 2006 to sell Vectibix, a colorectal cancer drug to compete with Erbitux, ImClone's sole marketed product.
• The news came just days after ImClone lost a key patent case which effectively erases the exclusivity it has enjoyed to the license behind Erbitux. ImClone said it would appeal the decision.
  • Once installed, Icahn hammered the company for losing the patent battle.
• Interestingly enough, the FDA rejected Erbitux in 2001. ImClone Founder and then-chief executive Sam Waksal tipped off friends and family, which led to insider trading investigations and jail time for himself and Martha Stewart who was convicted of lying to investigators.

Dealwatch executive summary
The Date	The Action
10.06.08 10.01.08 9.22.08 9.10.08 8.2008 8.04.08 10.25.06	Eli Lilly and ImClone agree to a $6.5 billion deal. Eli Lilly is ImClone's mystery bidder, the WSJ says. Bristol-Myers bumps ImClone offer. ImClone: We have a $70-per-share offer from a large pharma. ImClone taps J.P. Morgan to advise as it weighs options. Does the ImClone board really want to split in two? Icahn wins control of ImClone's board.
10.20.06	Icahn gains one more ImClone board seat.
10.10.06	Kies and Crouse step down.
10.04.06	ImClone says Icahn blocked the possible sale of the company; Icahn fires back.
9.28.06	CAM North America throws its support to Carl Icahn.
9.21.06	ImClone board votes to keep Kies.
9.20.06	Icahn blasts ImClone for losing patent case.
9.18.06	ImClone loses patent exclusivity on its only marketed drug.
8.23.06	Icahn and friends will be nominated to ImClone's board.
8.10.06	ImClone ends its strategic review.
1.24.06	ImClose says it has launched a strategic review.
Source: The Deal, Press reports

 

 

 

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