{"id":39271,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-imclone-systems-inc-and-john-landes.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-imclone-systems-inc-and-john-landes","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-imclone-systems-inc-and-john-landes.html","title":{"rendered":"Employment Agreement &#8211; ImClone Systems Inc. and John Landes"},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n\n            AGREEMENT, dated as of September 19, 2001, by and between ImClone\nSystems Incorporated, a Delaware corporation (the \"Company\"), and John Landes\n(\"Executive\").\n\n            IN CONSIDERATION of the premises and the mutual covenants set forth\nbelow, the parties hereby agree as follows:\n\n            1.    EMPLOYMENT. The Company hereby agrees to continue to employ\nExecutive as the General Counsel and Senior Vice President of the Company (\"GC\")\nand Executive hereby accepts such continued employment, on the terms and\nconditions hereinafter set forth.\n\n            2.    TERM. The period of employment of Executive by the Company \nunder this Agreement (the \"Employment Period\") shall commence on the date hereof\n(the \"Commencement Date\") and shall continue through the third anniversary\nthereof. The Employment Period may be sooner terminated by either party in\naccordance with Section 6 of this Agreement.\n\n            3.    POSITION AND DUTIES. During the Employment Period, Executive\nshall serve as GC, and shall report solely and directly to the Company's Chief\nExecutive Officer. Executive shall have those powers and duties normally\nassociated with the position of GC of entities comparable to the Company and\nsuch other powers and duties as may be prescribed by the Company; PROVIDED THAT,\nsuch other powers and duties are consistent with Executive's position as GC of\nthe Company. Executive shall devote as much of his working time, attention and\nenergies during normal business hours (other than absences due to illness or\nvacation) to satisfactorily perform his duties for the Company. Notwithstanding\nthe above, Executive shall be permitted, to the extent such activities do not\nsubstantially interfere with the performance by Executive of his duties and\nresponsibilities hereunder to (i) manage Executive's personal, financial and\nlegal affairs and (ii) to serve on civic or charitable boards or committees (it\nbeing expressly understood and agreed that Executive's continuing to serve on\nany such board and\/or committees on which Executive is serving, or with which\nExecutive is otherwise associated, as of the Commencement Date shall be deemed\nnot to interfere with the performance by Executive of his duties and\nresponsibilities under this Agreement).\n\n            4.    PLACE OF PERFORMANCE. The principal place of employment of\nExecutive shall be at the Company's principal executive offices in New York, New\nYork.\n\n            5.    COMPENSATION AND RELATED MATTERS.\n\n                  (a) BASE SALARY AND BONUS. During the Employment Period, the\nCompany shall pay Executive a base salary at the rate of not less than $225,000\nper year (\"Base Salary\"). Executive's Base Salary shall be paid in approximately\nequal installments in accordance with the Company's customary payroll practices.\nThe Compensation Committee (the \"Committee\") of the Board of Directors of the\nCompany (the \"Board\") shall review Executive's Base Salary for increase (but not\ndecrease) no less frequently than annually and consistent with \n\n\n\nthe compensation practices and guidelines of the Company. If Executive's Base\nSalary is increased by the Company, such increased Base Salary shall then\nconstitute the Base Salary for all purposes of this Agreement. In addition to\nBase Salary, Executive shall be paid an annual bonus (the \"Bonus\") as provided\nfor under the annual incentive plan maintained by the Company and\/or as the\nCommittee so determines; PROVIDED, THAT, Executive's annual Bonus shall be no\nless than $100,000.\n\n                  (b) EXPENSES. The Company shall promptly reimburse Executive\nfor all reasonable business expenses upon the presentation of reasonably\nitemized statements of such expenses in accordance with the Company's policies\nand procedures now in force or as such policies and procedures may be modified\nwith respect to all senior executive officers of the Company.\n\n                  (c) VACATION. Executive shall be entitled to the number of\nweeks of paid vacation per year that he was eligible for immediately prior to\nthe date of this Agreement, or, if greater, the number of weeks provided for by\nthe Company's vacation policy. In addition to vacation, Executive shall be\nentitled to the number of sick days and personal days per year that other senior\nexecutive officers of the Company with similar tenure are entitled under the\nCompany's policies.\n\n                  (d) SERVICES FURNISHED. During the Employment Period, the\nCompany shall furnish Executive, with office space, stenographic and secretarial\nassistance and such other facilities and services no less favorable than those\nthat he was receiving immediately prior to the date of this Agreement or, if\nbetter, as provided to other senior executive officers of the Company.\n\n                  (e) WELFARE, PENSION AND INCENTIVE BENEFIT PLANS AND\nPERQUISITES. During the Employment Period, Executive (and his spouse and\ndependents to the extent provided therein) shall be entitled to participate in\nand be covered under all the welfare benefit plans or programs maintained by the\nCompany from time to time for the benefit of its senior executives including,\nwithout limitation, all medical, hospitalization, dental, disability, accidental\ndeath and dismemberment and travel accident insurance plans and programs. The\nCompany shall at all times provide to Executive (and his spouse and dependents\nto the extent provided under the applicable plans or programs) (subject to\nmodifications affecting all senior executive officers) the same type and levels\nof participation and benefits as are being provided to other senior executives\n(and their spouses and dependents to the extent provided under the applicable\nplans or programs) on the Commencement Date. In addition, during the Employment\nPeriod, Executive shall be eligible to participate in all pension, retirement,\nsavings and other employee benefit plans and programs maintained from time to\ntime by the Company for the benefit of its senior executives. During the\nEmployment Period, Executive shall be provided such other benefits and\nperquisites that are no less favorable than those provided immediately prior to\nthe Commencement Date.\n\n            6.    TERMINATION. Executive's employment hereunder may be\nterminated during the Employment Period under the following circumstances:\n\n\n                                       2\n\n\n                  (a)   DEATH. Executive's employment hereunder shall terminate\nupon his death.\n\n                  (b)   DISABILITY. If, as a result of Executive's incapacity \ndue to physical or mental illness, Executive shall have been substantially\nunable to perform his duties hereunder for an entire period of six (6)\nconsecutive months, and within thirty (30) days after written Notice of\nTermination is given after such six (6) month period, Executive shall not have\nreturned to the substantial performance of his duties on a full-time basis, the\nCompany shall have the right to terminate Executive's employment hereunder for\n\"Disability\", and such termination in and of itself shall not be, nor shall it\nbe deemed to be, a breach of this Agreement.\n\n                  (c)   CAUSE. The Company shall have the right to terminate\nExecutive's employment for Cause, and such termination in and of itself shall\nnot be, nor shall it be deemed to be, a breach of this Agreement. For purposes\nof this Agreement, the Company shall have \"Cause\" to terminate Executive's\nemployment upon Executive's:\n\n                        (i) final conviction of or plea of guilty or no contest\n      to a felony involving moral turpitude; or\n\n                        (ii) willful misconduct that is materially and\n      demonstrably injurious economically to the Company.\n\nFor purposes of this Section 6(c), no act, or failure to act, by Executive shall\nbe considered \"willful\" unless committed in bad faith and without a reasonable\nbelief that the act or omission was in the best interests of the Company or any\nentity in control of, controlled by or under common control with the Company\n(\"Affiliates\") thereof. Cause shall not exist under paragraph (ii) unless and\nuntil the Company has delivered to Executive a copy of a resolution duly adopted\nby three-quarters of the Board (excluding Executive if he should be serving\nthereon) at a meeting of the Board called and held for such purpose (after\nreasonable (but in no event less than thirty (30) days) notice to Executive and\nan opportunity for Executive, together with his counsel, to be heard before the\nBoard), finding that in the good faith opinion of the Board, Executive was\nguilty of the conduct set forth in paragraph (ii) and specifying the particulars\nthereof in detail. This Section 6(c) shall not prevent Executive from\nchallenging in any arbitration or court of competent jurisdiction the Board's\ndetermination that Cause exists or that Executive has failed to cure any act (or\nfailure to act) that purportedly formed the basis for the Board's determination.\n\n                  (d)   GOOD REASON. Executive may terminate his employment for\n\"Good Reason\" within ninety (90) days after Executive has actual knowledge of\nthe occurrence, without the written consent of Executive, of one of the\nfollowing events:\n\n                        (i) (A) any change in the duties or responsibilities of\n      Executive that is inconsistent in any material and adverse respect with\n      Executive's position(s), duties, responsibilities or status with the\n      Company (including any material and adverse diminution of such duties or\n      responsibilities); PROVIDED, HOWEVER, that Good Reason shall not be deemed\n      to occur upon a change in duties or responsibilities that is solely and\n      directly a result of the Company no longer being a publicly traded entity\n      (other than such change which would have a material and adverse effect on\n      Executive's duties or responsibilities) and does not involve any other\n      event set forth in this paragraph (d) or \n\n\n                                       3\n\n\n      (B) a material and adverse change in Executive's titles or offices\n      (including, if applicable, membership on the Board) with the Company;\n\n                        (ii) a reduction in Executive's Base Salary or Bonus\n      opportunity;\n\n                        (iii) the relocation of the Company's principal\n      executive offices or Executive's own office location outside of Manhattan,\n      New York;\n\n                        (iv) the failure of the Company or any Affiliate to\n      continue in effect any material employee benefit plan, compensation plan,\n      welfare benefit plan or fringe benefit plan in which Executive is\n      participating immediately prior to the date of this Agreement or the\n      taking of any action by the Company or any Affiliate which would adversely\n      affect Executive's participation in or reduce Executive's benefits under\n      any such plan, unless Executive is permitted to participate in other plans\n      providing Executive with substantially equivalent benefits;\n\n                        (v) any refusal by the Company or any Affiliate to\n      continue to permit Executive to engage in activities not directly related\n      to the business of the Company which Executive was permitted to engage in\n      prior to the date of this Agreement;\n\n                        (vi) any purported termination of Executive's employment\n      for Cause which is not effected pursuant to the procedures of Section 6(c)\n      (and for purposes of this Agreement, no such purported termination shall\n      be effective);\n\n                        (vii) the Company's or any Affiliate's failure to\n      provide in all material respects the indemnification set forth in Section\n      11 of this Agreement;\n\n                        (viii) the failure of the Company to obtain the\n      assumption agreement from any successor as contemplated in Section 13(a);\n      or\n\n                        (ix) any other breach of a material provision of this\n      Agreement by the Company or any Affiliate.\n\nFor purposes of clauses (i) through (vii) and (ix) above, an isolated,\ninsubstantial and inadvertent action taken in good faith and which is remedied\nby the Company within ten (10) days after receipt of notice thereof given by\nExecutive shall not constitute Good Reason. Executive's right to terminate\nemployment for Good Reason shall not be affected by Executive's incapacity due\nto mental or physical illness and Executive's continued employment shall not\nconstitute consent to, or a waiver of rights with respect to, any event or\ncondition constituting Good Reason.\n\n                  (e)   WITHOUT CAUSE. The Company shall have the right to\nterminate Executive's employment hereunder without Cause by providing Executive\nwith a Notice of Termination at least thirty (30) days prior to such\ntermination, and such termination shall not in and of itself be, nor shall it be\ndeemed to be, a breach of this Agreement.\n\n\n                                       4\n\n\n                  (f)   WITHOUT GOOD REASON. Executive shall have the right to\nterminate his employment hereunder without Good Reason by providing the Company\nwith a Notice of Termination at least thirty (30) days prior to such\ntermination, and such termination shall not in and of itself be, nor shall it be\ndeemed to be, a breach of this Agreement.\n\nFor purposes of this Agreement, a \"Change in Control\" of the Company means the\noccurrence of one of the following events:\n\n                  (1) individuals who, on the Commencement Date, constitute the\n      Board (the \"Incumbent Directors\") cease for any reason to constitute at\n      least a majority of the Board, provided that any person becoming a\n      director subsequent to the Commencement Date whose election or nomination\n      for election was approved by a vote of at least two-thirds of the\n      Incumbent Directors then on the Board (either by a specific vote or by\n      approval of the proxy statement of the Company in which such person is\n      named as a nominee for director, without objection to such nomination)\n      shall be an Incumbent Director; PROVIDED, HOWEVER, that no individual\n      initially elected or nominated as a director of the Company as a result of\n      an actual or threatened election contest with respect to directors or as a\n      result of any other actual or threatened solicitation of proxies by or on\n      behalf of any person other than the Board shall be an Incumbent Director;\n\n                  (2) any \"person\" (as such term is defined in Section 3(a)(9)\n      of the Securities Exchange Act of 1934 (the \"Exchange Act\") and as used in\n      Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes, after\n      the Commencement Date, a \"beneficial owner\" (as defined in Rule 13d-3\n      under the Exchange Act), directly or indirectly, of securities of the\n      Company representing 35% or more of the combined voting power of the\n      Company's then outstanding securities eligible to vote for the election of\n      the Board (the \"Company Voting Securities\"); PROVIDED, HOWEVER, that an\n      event described in this paragraph (2) shall not be deemed to be a Change\n      in Control if any of following becomes such a beneficial owner: (A) the\n      Company or any majority-owned subsidiary (provided, that this exclusion\n      applies solely to the ownership levels of the Company or the\n      majority-owned subsidiary), (B) any tax-qualified, broad-based employee\n      benefit plan sponsored or maintained by the Company or any majority-owned\n      subsidiary, (C) any underwriter temporarily holding securities pursuant to\n      an offering of such securities, (D) any person pursuant to a\n      Non-Qualifying Transaction (as defined in paragraph (3)), or (E) Executive\n      or any group of persons including Executive (or any entity controlled by\n      Executive or any group of persons including Executive);\n\n                  (3) the consummation of a merger, consolidation, statutory\n      share exchange or similar form of corporate transaction involving the\n      Company or any of its Subsidiaries that requires the approval of the\n      Company's stockholders, whether for such transaction or the issuance of\n      securities in the transaction (a \"Business Combination\"), unless\n      immediately following such Business Combination: (A) 60% or more of the\n      total voting power of (x) the corporation resulting from such Business\n      Combination (the \"Surviving Corporation\"), or (y) if applicable, the\n      ultimate parent corporation that directly or indirectly has beneficial\n      ownership of 100% of the voting securities eligible to elect directors of\n      the Surviving Corporation (the \"Parent Corporation\"), is represented by\n      Company Voting Securities that were outstanding immediately prior to such\n      Business \n\n\n                                       5\n\n\n      Combination (or, if applicable, is represented by shares into which such\n      Company Voting Securities were converted pursuant to such Business\n      Combination), and such voting power among the holders thereof is in\n      substantially the same proportion as the voting power of such Company\n      Voting Securities among the holders thereof immediately prior to the\n      Business Combination, (B) no person (other than any employee benefit plan\n      (or related trust) sponsored or maintained by the Surviving Corporation or\n      the Parent Corporation), is or becomes the beneficial owner, directly or\n      indirectly, of 35% or more of the total voting power of the outstanding\n      voting securities eligible to elect directors of the Parent Corporation\n      (or, if there is no Parent Corporation, the Surviving Corporation) and (C)\n      at least a majority of the members of the board of directors of the Parent\n      Corporation (or if there is no Parent Corporation, the Surviving\n      Corporation) following the consummation of the Business Combination were\n      Incumbent Directors at the time of the Board's approval of the execution\n      of the initial agreement providing for such Business Combination (any\n      Business Combination which satisfies all of the criteria specified in (A),\n      (B) and (C) above shall be deemed to be a \"Non-Qualifying Transaction\");\n      or\n\n                        (4) Stockholder approval of a liquidation or dissolution\n      of the Company, unless the voting common equity interests of an ongoing\n      entity (other than a liquidating trust) are beneficially owned, directly\n      or indirectly, by the Company's shareholders in substantially the same\n      proportions as such shareholders owned the Company's outstanding voting\n      common equity interests immediately prior to such liquidation and such\n      ongoing entity assumes all existing obligations of the Company to\n      Executive under this Agreement.\n\nNotwithstanding the foregoing, a Change in Control of the Company shall not be\ndeemed to occur solely because any person acquires beneficial ownership of more\nthan 35% of the Company Voting Securities as a result of the acquisition of\nCompany Voting Securities by the Company which reduces the number of Company\nVoting Securities outstanding; PROVIDED, THAT, if after such acquisition by the\nCompany such person becomes the beneficial owner of Company Voting Securities\nthat increases the percentage of outstanding Company Voting Securities\nbeneficially owned by such person, a Change in Control of the Company shall then\noccur.\n\n            7.    TERMINATION PROCEDURE.\n\n                  (a)   NOTICE OF TERMINATION. Any termination of Executive's\nemployment by the Company or by Executive during the Employment Period (other\nthan termination pursuant to Section 6(a)) shall be communicated by written\nNotice of Termination to the other party hereto in accordance with Section 14.\nFor purposes of this Agreement, a \"Notice of Termination\" shall mean a notice\nwhich shall indicate the specific termination provision in this Agreement relied\nupon and shall set forth in reasonable detail the facts and circumstances\nclaimed to provide a basis for termination of Executive's employment under the\nprovision so indicated.\n\n                  (b)   DATE OF TERMINATION. \"Date of Termination\" shall mean \n(i) if Executive's employment is terminated by his death, the date of his death,\n(ii) if Executive's employment is terminated pursuant to Section 6(b), thirty\n(30) days after Notice of Termination (provided that Executive shall not have\nreturned to the substantial performance of his duties on a \n\n\n                                       6\n\n\nfull-time basis during such thirty (30) day period), and (iii) if Executive's\nemployment is terminated for any other reason, the date on which a Notice of\nTermination is given or any later date (within thirty (30) days after the giving\nof such notice) set forth in such Notice of Termination.\n\n            8. COMPENSATION UPON TERMINATION OR DURING DISABILITY. In the event\nExecutive is disabled or his employment terminates during the Employment Period,\nthe Company shall provide Executive with the payments and benefits set forth\nbelow. Executive acknowledges and agrees that the payments set forth in this\nSection 8 constitute liquidated damages for termination of his employment during\nthe Employment Period.\n\n                  (a) TERMINATION BY COMPANY WITHOUT CAUSE OR BY EXECUTIVE FOR\nGOOD REASON. If Executive's employment is terminated by the Company without\nCause or by Executive for Good Reason:\n\n                        (i) within five (5) days following such termination, the\n      Company shall pay to Executive (A) his Base Salary and Bonus earned and\/or\n      accrued, but unpaid through the Date of Termination, as soon as\n      practicable following the Date of Termination, (B) a pro rata portion of\n      Executive's annual bonus for the fiscal year in which Executive's Date of\n      Termination occurs in an amount at least equal to (1) Executive's target\n      Bonus amount, multiplied by (2) a fraction, the numerator of which is the\n      number of days in the fiscal year in which the Date of Termination occurs\n      through the Date of Termination and the denominator of which is three\n      hundred sixty-five (365) (the \"Pro-Rated Bonus\"); (C) any accrued vacation\n      pay; and (D) a lump-sum cash payment equal to three (3) times the sum of\n      Executive's Base Salary and highest Bonus paid to Executive in the\n      three-year period immediately preceding such termination (including, for\n      this purpose, any and all bonuses paid to Executive prior to the date of\n      this Agreement); PROVIDED, THAT, for purposes of this Section 8(a)(i), \n      Executive's Bonus shall be deemed to be no less than $100,000; and\n\n                        (ii) the Company shall maintain in full force and\n      effect, for the continued benefit of Executive, his spouse and his\n      dependents for a period of three (3) years following the Date of\n      Termination the medical, hospitalization, dental, and life insurance\n      programs in which Executive, his spouse and his dependents were\n      participating immediately prior to the Date of Termination at the level in\n      effect and upon substantially the same terms and conditions (including\n      without limitation contributions required by Executive for such benefits)\n      as existed immediately prior to the Date of Termination; PROVIDED, THAT,\n      if Executive, his spouse or his dependents cannot continue to participate\n      in the Company programs providing such benefits, the Company shall arrange\n      to provide Executive, his spouse and his dependents with the economic\n      equivalent of such benefits which they otherwise would have been entitled\n      to receive under such plans and programs (\"Continued Benefits\"), PROVIDED,\n      THAT, such Continued Benefits shall terminate on the date or dates\n      Executive receives equivalent coverage and benefits, without waiting\n      period or pre-existing condition limitations, under the plans and programs\n      of a subsequent employer (such coverage and benefits to be determined on a\n      coverage-by-coverage or benefit-by-benefit, basis); and\n\n\n                                       7\n\n\n                        (iii) the Company shall reimburse Executive pursuant to\n      Section 5 for reasonable expenses incurred, but not paid prior to such\n      termination of employment; and\n\n                        (iv) Executive shall be entitled to any other rights,\n      compensation and\/or benefits as may be due to Executive in accordance with\n      the terms and provisions of any agreements, plans or programs of the\n      Company; and\n\n                        (v) with respect to equity awards granted or made on or\n      after the Commencement Date, notwithstanding the terms or conditions of\n      any stock option, stock appreciation right, restricted stock or similar\n      agreements between the Company and Executive to the contrary, and for\n      purposes thereof, such agreements shall be deemed to be amended in\n      accordance with this Section 8(a)(v) if need be as of the Date of\n      Termination and neither the Company, the Board nor the Committee shall\n      take or assert any position contrary to the foregoing, such that Executive\n      shall vest, as of the Date of Termination, in all rights under such\n      agreements (E.G., stock options that would otherwise vest after the\n      Date of Termination) and in the case of stock options, stock appreciation\n      rights or similar awards, thereafter shall be permitted to exercise any\n      and all such rights until the end of the term of such awards (regardless\n      of any termination of employment restrictions therein contained) and\n      restricted stock held by Executive shall become immediately vested as of\n      the Date of Termination; and\n\n                        (vi) Executive shall be paid a lump sum payment equal to\n      the present value of the Company contributions that would have been made\n      under all Company savings programs (whether or not intended to be\n      qualified under Section 401(a) of the Internal Revenue Code of 1986, as\n      amended (the \"Code\") if Executive had continued in the employ of the\n      Company for an additional three (3) years following his Date of\n      Termination earning during such three-year period the rate of Base Salary\n      and Bonus in effect as of his Date of Termination, assuming that the\n      Company would have made the maximum contributions permitted under such\n      savings programs, and assuming, for purposes of determining the amount of\n      any Company matching contributions, that Executive would have contributed\n      the amount necessary to receive the maximum matching contributions\n      available under such savings programs; and\n\n                        (vii) Any and all insurance benefits or policies for the\n      benefit of Executive shall become the sole property of Executive and, to\n      the extent applicable, all of the Company's rights therein (including\n      repayment of premiums) shall be forfeited by the Company and, to the\n      extent not already made, the Company shall make all contributions or\n      payments required of such policies for the year of termination.\n\n                  (b) CAUSE OR BY EXECUTIVE WITHOUT GOOD REASON. If Executive's\nemployment is terminated by the Company for Cause or by Executive (other than\nfor Good Reason):\n\n                        (i) the Company shall pay Executive his Base Salary,\n      Bonus and his accrued vacation pay through the Date of Termination, as\n      soon as practicable following the Date of Termination; and\n\n\n                                       8\n\n\n                        (ii) the Company shall reimburse Executive pursuant to\n      Section 5 for reasonable expenses incurred, but not paid prior to such\n      termination of employment; and\n\n                        (iii) Executive shall be entitled to any other rights,\n      compensation and\/or benefits as may be due to Executive in accordance with\n      the terms and provisions of any agreements, plans or programs of the\n      Company.\n\n                  (c)   DISABILITY. During any period that Executive fails to\nperform his duties hereunder as a result of incapacity due to physical or mental\nillness (\"Disability Period\"), Executive shall continue to receive his full Base\nSalary set forth in Section 5(a) until his employment is terminated pursuant to\nSection 6(b). In the event Executive's employment is terminated for Disability\npursuant to Section 6(b):\n\n                        (i) the Company shall pay to Executive (A) his Base\n      Salary, Bonus and accrued vacation pay through the Date of Termination, as\n      soon as practicable following the Date of Termination, (B) his Pro-Rated\n      Bonus and (C) Continued Benefits for one (1) year; and\n\n                        (ii) the Company shall reimburse Executive pursuant to\n      Section 5 for reasonable expenses incurred, but not paid prior to such\n      termination of employment; and\n\n                        (iii) Executive shall be entitled to any other rights,\n      compensation and\/or benefits as may be due to Executive in accordance with\n      the terms and provisions of any agreements, plans or programs of the\n      Company.\n\n            (d)   DEATH. If Executive's employment is terminated by his death:\n\n                        (i) the Company shall pay in a lump sum to Executive's\n      beneficiary, legal representatives or estate, as the case may be,\n      Executive's Base Salary, Bonus and accrued vacation pay through the Date\n      of Termination, his Pro-Rated Bonus and shall provide Executive's spouse\n      and dependents with Continued Benefits for two (2) years; and\n\n                        (ii) the Company shall reimburse Executive's\n      beneficiary, legal representatives, or estate, as the case may be,\n      pursuant to Section 5 for reasonable expenses incurred, but not paid prior\n      to such termination of employment; and\n\n                        (iii) Executive's beneficiary, legal representatives or\n      estate, as the case may be, shall be entitled to any other rights,\n      compensation and benefits as may be due to any such persons or estate in\n      accordance with the terms and provisions of any agreements, plans or\n      programs of the Company.\n\n            (e)   ADDITIONAL PAYMENTS. (i) Anything in this Agreement to the\ncontrary notwithstanding, in the event it shall be determined that any payment,\naward, benefit or distribution (or any acceleration of any payment, award,\nbenefit or distribution) by the Company or any entity which effectuates a Change\nin Control (or other change in ownership) to or for the \n\n\n                                       9\n\n\nbenefit of Executive (the \"Payments\") would be subject to the excise tax imposed\nby Section 4999 of the Code, or any interest or penalties are incurred by\nExecutive with respect to such excise tax (such excise tax, together with any\nsuch interest and penalties, are hereinafter collectively referred to as the\n\"Excise Tax\"), then the Company shall pay to Executive an additional payment (a\n\"Gross-Up Payment\") in an amount such that after payment by Executive of all\ntaxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive\nretains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax\nimposed upon the Payments and (y) the product of any deductions disallowed\nbecause of the inclusion of the Gross-Up Payment in Executive's adjusted gross\nincome and the highest applicable marginal rate of federal income taxation for\nthe calendar year in which the Gross-Up Payment is to be made. For purposes of\ndetermining the amount of the Gross-Up Payment, Executive shall be deemed to (A)\npay federal income taxes at the highest marginal rates of federal income taxes\nat the highest marginal rate of taxation for the calendar year in which the\nGross-Up Payment is to be made, (B) pay applicable state and local income taxes\nat the highest marginal rate of taxation for the calendar year in which the\nGross-Up Payment is to be made, net of the maximum reduction in federal income\ntaxes which could be obtained from deduction of such state and local taxes and\n(C) have otherwise allowable deductions for federal income tax purposes at least\nequal to those which could be disallowed because of the inclusion of the\nGross-Up Payment in Executive's adjusted gross income. Notwithstanding the\nforegoing provisions of this Section 8(e)(i), if it shall be determined that\nExecutive is entitled to a Gross-Up Payment, but that the Payments would not be\nsubject to the Excise Tax if the Payments were reduced by an amount that is less\nthan 10% of the portion of the Payments that would be treated as \"parachute\npayments\" under Section 280G of the Code, then the amounts payable to Executive\nunder this Agreement shall be reduced (but not below zero) to the maximum amount\nthat could be paid to Executive without giving rise to the Excise Tax (the \"Safe\nHarbor Cap\"), and no Gross-Up Payment shall be made to Executive. The reduction\nof the amounts payable hereunder, if applicable, shall be made by reducing first\nthe payments under Section 8(a)(i)(D), unless an alternative method of reduction\nis elected by Executive. For purposes of reducing the Payments to the Safe\nHarbor Cap, only amounts payable under this Agreement (and no other Payments)\nshall be reduced. If the reduction of the amounts payable hereunder would not\nresult in a reduction of the Payments to the Safe Harbor Cap, no amounts payable\nunder this Agreement shall be reduced pursuant to this provision.\n\n            (ii) Subject to the provisions of Section 8(e)(i), all\ndeterminations required to be made under this Section 8(e), including whether\nand when a Gross-Up Payment is required, the amount of such Gross-Up Payment,\nthe reduction of the Payments to the Safe Harbor Cap and the assumptions to be\nutilized in arriving at such determinations, shall be made by a nationally\nrecognized public accounting firm that is retained by the Company (the\n\"Accounting Firm\"). In the event that the Accounting Firm is serving as\naccountant or auditor for the individual, entity or group effecting the Change\nin Control (or change in ownership), Executive may appoint another nationally\nrecognized public accounting firm to make the determinations required hereunder\n(which accounting firm shall then be referred to as the Accounting Firm\nhereunder). The Accounting Firm shall provide detailed supporting calculations\nboth to the Company and Executive within fifteen (15) business days of the\nreceipt of notice from the Company or the Executive that there has been a\nPayment, or such earlier time as is requested by the Company (collectively, the\n\"Determination\"). All fees and expenses of the Accounting Firm shall be borne\nsolely by the Company and the Company shall enter into any agreement requested\n\n\n                                       10\n\n\nby the Accounting Firm in connection with the performance of the services\nhereunder. The Gross-up Payment under this Section 8(e) with respect to any\nPayments shall be made no later than thirty (30) days following such Payment. If\nthe Accounting Firm determines that no Excise Tax is payable by Executive, it\nshall furnish Executive with a written opinion to such effect, and to the effect\nthat failure to report the Excise Tax, if any, on Executive's applicable federal\nincome tax return should not result in the imposition of a negligence or similar\npenalty. In the event the Accounting Firm determines that the Payments shall be\nreduced to the Safe Harbor Cap, it shall furnish Executive with a written\nopinion to such effect. The Determination by the Accounting Firm shall be\nbinding upon the Company and Executive.\n\n            (iii) As a result of the uncertainty in the application of Section\n4999 of the Code at the time of the Determination, it is possible that Gross-Up\nPayments which will not have been made by the Company should have been made\n(\"Underpayment\") or Gross-Up Payments are made by the Company which should not\nhave been made (\"Overpayment\"), consistent with the calculations required to be\nmade hereunder. In the event that the Executive thereafter is required to make\npayment of any Excise Tax or additional Excise Tax, the Accounting Firm shall\ndetermine the amount of the Underpayment that has occurred and any such\nUnderpayment (together with interest at the rate provided in Section\n1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the\nbenefit of Executive. In the event the amount of the Gross-up Payment exceeds\nthe amount necessary to reimburse the Executive for his Excise Tax, the\nAccounting Firm shall determine the amount of the Overpayment that has been made\nand any such Overpayment (together with interest at the rate provided in Section\n1274(b)(2) of the Code) shall be promptly paid by Executive to or for the\nbenefit of the Company. Executive shall cooperate, to the extent his expenses\nare reimbursed by the Company, with any reasonable requests by the Company in\nconnection with any contests or disputes with the Internal Revenue Service in\nconnection with the Excise Tax.\n\n            9.    MITIGATION. Executive shall not be required to mitigate \namounts payable under this Agreement by seeking other employment or otherwise,\nand there shall be no offset against amounts due Executive under this Agreement\non account of subsequent employment except as specifically provided herein.\nAdditionally, amounts owed to Executive under this Agreement shall not be offset\nby any claims the Company may have against Executive and the Company's\nobligation to make the payments provided for in this Agreement and otherwise to\nperform its obligations hereunder, shall not be affected by any other\ncircumstances, including, without limitation, any counterclaim, recoupment,\ndefense or other right which the Company may have against Executive or others.\n\n            10.   RESTRICTIVE COVENANTS.\n\n                  (a) CONFIDENTIAL INFORMATION. Executive shall hold in a\nfiduciary capacity for the benefit of the Company all trade secrets and\nconfidential information, knowledge or data relating to the Company and its\nbusinesses and investments, which shall have been obtained by Executive during\nExecutive's employment by the Company and which is not generally available\npublic knowledge (other than by acts by Executive in violation of this\nAgreement). Except as may be required or appropriate in connection with his\ncarrying out his duties under this Agreement, Executive shall not, without the\nprior written consent of the Company or as may otherwise be required by law or\nany legal process, or as is necessary in \n\n\n                                       11\n\n\nconnection with any adversarial proceeding against the Company (in which case\nExecutive shall use his reasonable best efforts in cooperating with the Company\nin obtaining a protective order against disclosure by a court of competent\njurisdiction), communicate or divulge any such trade secrets, information,\nknowledge or data to anyone other than the Company and those designated by the\nCompany or on behalf of the Company in the furtherance of its business or to\nperform duties hereunder.\n\n            (b) NON-SOLICITATION. Executive hereby agrees, in consideration of\nhis employment hereunder and in view of the confidential position to be held by\nExecutive hereunder, that after his termination of employment in which he is\nentitled to the benefits set forth in Section 8(a) hereof and through the first\nanniversary thereof, Executive shall not directly or indirectly induce any\nemployee of the Company to terminate such employment or to become employed by\nany other biopharmaceutical company.\n\n            (c) NON-COMPETITION. Executive hereby agrees, in consideration of\nhis employment hereunder and in view of the confidential position to be held by\nExecutive hereunder, that after his termination of employment in which he is\nentitled to the benefits set forth in Section 8(a) hereof and through the first\nanniversary thereof, he shall not be employed by or perform activities on behalf\nof, or have an ownership interest in, any person, firm, corporation or other\nentity, or in connection with any business enterprise, that is directly or\nindirectly engaged in any of the biopharmaceutical business in which the Company\nand its subsidiaries have significant involvement (other than direct or\nbeneficial ownership of up to one percent (1%) of any entity whether or not in\nthe same or competing business).\n\n            (d) BLUE PENCIL. The parties hereby acknowledge that the\nrestrictions in this Section 10 have been specifically negotiated and agreed to\nby the parties hereto and are limited only to those restrictions necessary to\nprotect the Company and its subsidiaries from unfair competition. The parties\nhereby agree that if the scope or enforceability of any provision, paragraph or\nsubparagraph of this Section 10 is in any way disputed at any time, and should a\ncourt find that such restrictions are overly broad, the court may modify and\nenforce the covenant to the extent that it believes to be reasonable under the\ncircumstances. Each provision, paragraph and subparagraph of this Section 10 is\nseparable from every other provision, paragraph, and subparagraph and\nconstitutes a separate and distinct covenant. Executive acknowledges that the\nCompany's business is not limited by geographical scope, is operating throughout\nthe world and that the effect of Section 10(c) may be to prevent him from\nworking in a competitive business after his termination of employment hereunder.\n\n            (e) REMEDIES. Executive hereby expressly acknowledges that any\nbreach or threatened breach by Executive of any of the terms set forth in\nSection 10 of this Agreement may result in significant and continuing injury to\nthe Company, the monetary value of which would be impossible to establish.\nTherefore, Executive agrees that the Company shall be entitled to apply for\ninjunctive relief in a court of appropriate jurisdiction.\n\n            11. INDEMNIFICATION. The Company agrees that if Executive is made a\nparty or a threatened to be made a party to any action, suit or proceeding,\nwhether civil, criminal, administrative or investigative (a \"Proceeding\"), by\nreason of the fact that Executive is or was a trustee, director or officer of\nthe Company or any subsidiary of the Company or is or was serving \n\n\n                                       12\n\n\nat the request of the Company or any subsidiary as a trustee, director, officer,\nmember, employee or agent of another corporation or a partnership, joint\nventure, trust or other enterprise, including, without limitation, service with\nrespect to employee benefit plans, whether or not the basis of such Proceeding\nis alleged action in an official capacity as a trustee, director, officer,\nmember, employee or agent while serving as a trustee, director, officer, member,\nemployee or agent, Executive shall be indemnified and held harmless by the\nCompany to the fullest extent authorized by Delaware law, as the same exists or\nmay hereafter be amended, against all Expenses incurred or suffered by Executive\nin connection therewith, and such indemnification shall continue as to Executive\neven if Executive has ceased to be an officer, director, trustee or agent, or is\nno longer employed by the Company and shall inure to the benefit of his heirs,\nexecutors and administrators. As used in this Agreement, the term \"Expenses\"\nshall include, without limitation, damages, losses, judgments, liabilities,\nfines, penalties, excise taxes, settlements, and costs, attorneys' fees,\naccountants' fees, and disbursements and costs of attachment or similar bonds,\ninvestigations, and any expenses of establishing a right to indemnification\nunder this Agreement.\n\n            12.   LEGAL FEES; ARBITRATION. As soon as administratively possible\nfollowing the Commencement Date and in any case, within 10 business days\nthereafter, the Company shall reimburse Executive for his legal fees and\nexpenses associated with the preparation and negotiation of this Agreement.\nExcept as provided for in Section 10 of this Agreement, if any contest or\ndispute arises between the parties with respect to this Agreement, such contest\nor dispute shall be submitted to binding arbitration for resolution in New York,\nNew York in accordance with the rules and procedures of the Employment Dispute\nResolution Rules of the American Arbitration Association then in effect. The\ndecision of the arbitrator shall be final and binding on both parties, and any\ncourt of competent jurisdiction may enter judgment upon the award. The Company\nshall pay all expenses relating to such arbitration, including, but not limited\nto, Executive's legal fees and expenses, regardless of outcome, unless the\narbitrator determines that Executive has acted in bad faith.\n\n            13.   SUCCESSORS; BINDING AGREEMENT.\n\n                  (a) COMPANY'S SUCCESSORS. No rights or obligations of the\nCompany under this Agreement may be assigned or transferred except that the\nCompany will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business\nand\/or assets of the Company to expressly assume and agree to perform this\nAgreement in the same manner and to the same extent that the Company would be\nrequired to perform it if no such succession had taken place. As used in this\nAgreement, \"Company\" shall mean the Company as herein before defined and any\nsuccessor to its business and\/or assets (by merger, purchase or otherwise) which\nexecutes and delivers the agreement provided for in this Section 13 or which\notherwise becomes bound by all the terms and provisions of this Agreement by\noperation of law.\n\n                  (b) EXECUTIVE'S SUCCESSORS. No rights or obligations of\nExecutive under this Agreement may be assigned or transferred by Executive other\nthan his rights to payments or benefits hereunder, which may be transferred only\nby will or the laws of descent and distribution. Upon Executive's death, this\nAgreement and all rights of Executive hereunder shall inure to the benefit of\nand be enforceable by Executive's beneficiary or beneficiaries, \n\n\n                                       13\n\n\npersonal or legal representatives, or estate, to the extent any such person\nsucceeds to Executive's interests under this Agreement. Executive shall be\nentitled to select and change a beneficiary or beneficiaries to receive any\nbenefit or compensation payable hereunder following Executive's death by giving\nthe Company written notice thereof. In the event of Executive's death or a\njudicial determination of his incompetence, reference in this Agreement to\nExecutive shall be deemed, where appropriate, to refer to his beneficiary(ies),\nestate or other legal representative(s). If Executive should die following his\nDate of Termination while any amounts would still be payable to him hereunder if\nhe had continued to live, all such amounts unless otherwise provided herein\nshall be paid in accordance with the terms of this Agreement to such person or\npersons so appointed in writing by Executive, or otherwise to his legal\nrepresentatives or estate.\n\n            14. NOTICE. For the purposes of this Agreement, notices, demands and\nall other communications provided for in this Agreement shall be in writing and\nshall be deemed to have been duly given when delivered either personally or by\nUnited States certified or registered mail, return receipt requested, postage\nprepaid, addressed as follows:\n\n            If to Executive:\n\n            c\/o ImClone Systems Incorporated\n            180 Varick Street\n            New York, New York  10014\n\n\n            If to the Company:\n\n            ImClone Systems Incorporated\n            180 Varick Street\n            New York, New York  10014\n            Attention:  Chief Operating Officer\n\nor to such other address as any party may have furnished to the others in\nwriting in accordance herewith, except that notices of change of address shall\nbe effective only upon receipt.\n\n            15. MISCELLANEOUS. No provisions of this Agreement may be amended,\nmodified, or waived unless such amendment or modification is agreed to in\nwriting signed by Executive and by a duly authorized officer of the Company, and\nsuch waiver is set forth in writing and signed by the party to be charged. No\nwaiver by either party hereto at any time of any breach by the other party\nhereto of any condition or provision of this Agreement to be performed by such\nother party shall be deemed a waiver of similar or dissimilar provisions or\nconditions at the same or at any prior or subsequent time. No agreements or\nrepresentations, oral or otherwise, express or implied, with respect to the\nsubject matter hereof have been made by either party which are not set forth\nexpressly in this Agreement. The respective rights and obligations of the\nparties hereunder of this Agreement shall survive Executive's termination of\nemployment and the termination of this Agreement to the extent necessary for the\nintended preservation of such rights and obligations. The validity,\ninterpretation, construction and \n\n\n                                       14\n\n\nperformance of this Agreement shall be governed by the laws of the State of New\nYork without regard to its conflicts of law principles.\n\n            16. VALIDITY. The invalidity or unenforceability of any provision or\nprovisions of this Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement, which shall remain in full force and\neffect.\n\n            17. COUNTERPARTS. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which\ntogether will constitute one and the same instrument.\n\n            18. ENTIRE AGREEMENT. Except as other provided herein, this\nAgreement sets forth the entire agreement of the parties hereto in respect of\nthe subject matter contained herein and supersede all prior agreements,\npromises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative\nof any party hereto in respect of such subject matter. Except as other provided\nherein, any prior agreement of the parties hereto in respect of the subject\nmatter contained herein is hereby terminated and cancelled.\n\n            19. WITHHOLDING. All payments hereunder shall be subject to any\nrequired withholding of Federal, state and local taxes pursuant to any\napplicable law or regulation.\n\n            20. NONCONTRAVENTION. The Company represents that the Company is not\nprevented from entering into, or performing this Agreement by the terms of any\nlaw, order, rule or regulation, its by-laws or declaration of trust, or any\nagreement to which it is a party, other than which would not have a material\nadverse effect on the Company's ability to enter into or perform this Agreement.\n\n            21. SECTION HEADINGS. The section headings in this Agreement are for\nconvenience of reference only, and they form no part of this Agreement and shall\nnot affect its interpretation.\n\n\n\n\n                                       15\n\n\n\n\n            IN WITNESS WHEREOF, the parties hereto have executed this Agreement\non the date first above written.\n\n                                    IMCLONE SYSTEMS INCORPORATED\n\n\n\n                                    By:  \/s\/ Samuel D. Waksal\n                                        ----------------------------------\n                                        Name:  Samuel D. Waksal\n                                        Title: President &amp; Chief Executive\n                                               Officer\n\n\n                                     \/s\/ John B. Landes, Esq.\n                                    --------------------------------------\n                                    John B. Landes, Esq.\n\n\n\n\n\n                                       16\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7835],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9539,9544],"class_list":["post-39271","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imclone-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39271","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39271"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39271"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39271"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39271"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}