While it has the right to place two directors on the nine-member board, it only has one, John Celentano, a senior vice president in charge of strategy.

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Celentano, a Bristol-Myers senior vice president, sits on ImClone's board.

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Since Celentano will not be involved in considering the takeover offer, Icahn will have to show that Bristol-Myers Squibb had "somehow screwed around with the process" or scared off other potential bidders to force a court-ordered review, said Hamermesh.

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