Exhibit 10.1


 


IMCLONE
SYSTEMS INCORPORATED

2006-2008 RETENTION PLAN


(Effective
as of January 1, 2006)


 


This
document sets forth the terms of the ImClone Systems Incorporated 2006-2008 Retention
Plan (the “Plan”).


 


1.  Purpose of
Plan and Overview


 


The
Plan is intended to reward employees of ImClone Systems Incorporated (the “Company”) for the Company achieving
specified performance goals over specified performance periods.  The Plan is effective as of January 1,
2006 (the “Effective Date”), and
was approved by the Compensation Committee of the Board of Directors of the
Company (the “Compensation Committee”)
on January 18, 2006 (the “Approval Date”).


 


With
respect to employees with a rank of Vice President or above, this Plan is a component
plan of the ImClone Systems Incorporated Annual Incentive Plan (the “Annual Incentive Plan”), and award
opportunities provided hereunder to such employees are subject to the
provisions of such Annual Incentive Plan. 
With respect to employees below the Vice President level, this Plan is a
separate plan from the Annual Incentive Plan.


 


2.  Plan
Administration


 


(a) Authority.  The Plan shall be administered by the
Committee.  The Committee is authorized,
subject to the provisions of the Plan, in its sole discretion, from time to
time to (i) select the individuals who are eligible to participate in the
Plan, (ii) determine Target Award Opportunities (as defined below) under
the Plan, (iii) prescribe Award Letters (as defined below), which need not
be identical, (iv) determine the other terms and conditions of, and all
other matters relating to, Target Award Opportunities and payouts of Awards (as
defined below) under the Plan, (v) establish, modify or rescind such rules and
regulations as it deems necessary for the proper administration of the Plan,
and (vi) make such determinations and interpretations and take such steps
in connection with the Plan, Target Award Opportunities and Award payouts under
the Plan as it deems necessary or advisable. 
All such actions by the Committee shall be final and binding on all
persons.


 


(b) Manner
of Exercise of Committee Authority.  The
Committee may delegate its responsibility with respect to the administration of
the Plan to one or more officers of the Company, to one or more members of the
Committee, or to one or more members of the Board of Directors of the Company
(the “Board”); provided, however,
that the Committee may not delegate its responsibility to (i) make awards under
the Plan to executive officers of the Company, (ii) make awards under the
Plan which are intended to constitute “qualified performance-based compensation”
under Section 162(m) of the Internal Revenue Code of 1986, as amended (the
“Code”) and the Annual Incentive
Plan, or (iii) certify the satisfaction of the level or levels of
performance required to be attained with respect to a Target Award Opportunity in
order that a Participant (as defined below) may become entitled to specified
rights in connection with a Target Award Opportunity (“Performance Objectives”) in accordance with
Section 162(m) of the Code and the Annual Incentive Plan.  The Committee may also appoint agents to
assist in the day-to-day administration of the Plan and may delegate the
authority to execute documents under the Plan to one or more members of the
Committee or to one or more officers of the Company.


 


(c) Limitation
of Liability.  The Committee may
appoint agents to assist it in administering the Plan.  The Committee and each member thereof shall
be entitled to, in good faith, rely or act upon any report or other information
furnished to him or her by any officer or employee of the Company, the Company’s
independent certified public accountants, consultants or any other agent
assisting in the administration of the Plan. 
Members of the Committee and any officer or employee of the Company and
any Board member to whom the Committee has delegated responsibility, acting at
the direction or on behalf of the Committee, shall not be personally liable for
any action or determination taken or made in good faith with respect to the
Plan, and shall, to the extent permitted by applicable law, be fully
indemnified and protected by the Company with respect to any such action or
determination.


 





















 


3.  Performance
Periods


 


Performance
goals hereunder will be measured over the two-year period beginning January 1,
2006 and ending December 31, 2007, and, separately, over the three-year
period beginning January 1, 2006 and ending December 31, 2008 (each,
a “Performance Period”), or such
shorter period as may be applicable as specified in Section 4, Section 5
or Section 6.


 


There
is no formal obligation or intent on the part of the Company or the Committee
to commence a new performance period prior to, subsequent to, or upon
completion of either of the Performance Periods.


 


4.  Eligibility
and Participation


 


Executive
officers of the Company (including those employed by any subsidiary) and other
employees designated by the Committee are eligible to participate in the Plan (“Eligible Employees”).  Eligible Employees designated by the Committee
to participate in the Plan are “Participants.”


 


Participants
designated as such by the Committee on the Approval Date will have an “Entry Date” for purposes hereof of January 1,
2006.  Participants may be added after
the Approval Date as designated by the Committee (e.g., as a result of
promotion, or new hire), but any Target Award Opportunities for any such Participant
will be based on the achievement of performance goals, prospectively, in
respect of the portion of the applicable Performance Period which occurs
following the date such Eligible Employee first becomes a Participant (such
Participant’s “Entry Date”).


 


Each
Participant will receive an award letter (“Award
Letter”) indicating the Participant’s participation in the Plan and
the Participant’s Target Award Opportunity, as set forth in Section 5.


 


5.  Target Award
Opportunity


 


Each
Participant will be assigned a target award opportunity with respect to the applicable
Performance Period expressed as a dollar amount (“Target Award Opportunity”). 
Target Award Opportunities will be established by the Committee
reasonably promptly following the inception of the applicable Performance
Period, but, to the extent required by Section 162(m) of the Code, by no
later than the earlier of the date that is ninety days after the commencement
of the Performance Period or the day prior to the date on which twenty-five
percent of the Performance Period has elapsed. 
Target Award Opportunities may vary among Participants, including within
various levels of seniority.


 


The
Target Award Opportunity established for a Participant will not be subject to
adjustment during the applicable Performance Period, except in circumstances
determined by the Committee, in its sole discretion, that warrant adjustment (but
subject to the requirements of the Annual Incentive Plan, if applicable, and
subject to Section 6).


 


An
Eligible Employee who becomes a Participant in the Plan after the Approval Date
will be assigned a Target Award Opportunity that reflects the portion of the applicable
Performance Period such Participant is anticipated to complete following such Participant’s
Entry Date.


 


6.  Performance
Goals and Award Determination


 


(a) Committee
Certification.  Following the
completion of the applicable Performance Period, the Committee shall certify in
writing, in accordance with the requirements of Section 162(m) of the
Code, whether the Performance Objectives and other material terms for paying
amounts in respect of Target Award Opportunities related to that Performance
Period have been achieved or met.  Unless
the Committee determines otherwise, Award payouts in respect of the applicable
Performance Period will not occur before such Committee certification.


 


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(b) General
Methodology.  The percentage of the
Target Award Opportunity actually earned (if any) by a Participant with respect
to a Performance Period (the Participant’s “Award”)
will be determined by the Committee, and is subject to the requirement that the
Participant be in active, full-time employment with the Company on the last day
of the applicable Performance Period, except as expressly provided below in
this Section 6 and in Section 8.


 


The
percentage of the Target Award Opportunity actually earned (if any) by a Participant
with respect to a Performance Period will be determined by comparing actual
Company share performance at the conclusion of the applicable Performance
Period with the approved share performance goals set by the Committee for such
Performance Period, using the methodology set forth in this Section 6.


 


For
purposes of measuring Company share performance, (i) the Company share
price at the conclusion of a Performance Period will be calculated based on the
average daily closing market price of a share of the Company’s common stock as
quoted on the NASDAQ National Market on days such market is open for trading during
the 30 calendar day period ending on the last day of such Performance Period
(i.e., December 31, 2007 or December 31, 2008) (the “Closing Price”), and (ii) the Company
share price at the beginning of a Performance Period will be calculated based
on the average daily closing market price of a share of the Company’s common
stock as quoted on the NASDAQ National Market on days such market is open for
trading during the 30 calendar day period ending on the Participant’s Entry
Date (the “Grant Date Price”).


 


The
percentage of the Target Award Opportunity actually earned (if any) with
respect to a Performance Period, and, correspondingly, the amount of the actual
Award payout to the Participant with respect to such Performance Period will be
(i) equal to the Target Award Opportunity, (ii) greater than the Target
Award Opportunity (but in no event more than 150% of the Target Award Opportunity),
or (iii) zero, in each case based on actual Company share performance
(measured by comparing the applicable Closing Price to the applicable Grant
Date Price for the Participant), using the following thresholds.


 


	
  Closing Price

  Measurement Threshold

  	
   

  	
  % of Target

  Award

  Opportunity

  Earned

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  150% of
  Grant Date Price and above

  	
   

  	
  150

  	
  %

  
	
  Grant Date
  Price

  	
   

  	
  100

  	
  %

  
	
  Less than
  Grant Date Price

  	
   

  	
  0

  	
  %

  



 


No
amounts will be payable in respect of a Performance Period if the Closing Price
is lower than the Grant Date Price for the Participant.  No portion of a Target Award Opportunity in
respect of one Performance Period may be transferred to the other Performance
Period.  In no event will any Award
payout to any Participant exceed 150% of the Target Award Opportunity for such
Performance Period for such Participant. 
Linear interpolation will be used to calculate the percentage of the
Target Award Opportunity earned for performance above the Grant Date Price (not
to exceed 150% of the Target Award Opportunity).


 


(c) Death or Disability Terminations.  In the event the Participant’s employment
with the Company terminates prior to the conclusion of the Performance Period due
to the Participant’s death or due to the Participant becoming “disabled” within
the meaning of Section 409A(a)(2)(C) and related rules and
regulations in effect from time to time (“Disability”),
the percentage of the Target Award Opportunity actually earned (if any) by such
Participant, and, correspondingly, the amount of the actual Award payout to
such Participant, will be determined using the methodology set forth above in paragraph
(b) (without duplication), except that (i) the Performance Period
shall be deemed to end on the date of such Participant’s termination of
employment with the Company, such that the Closing Price will be calculated
based on the average daily closing market price of a share of the Company’s
common stock as quoted on the NASDAQ National Market on the days such market is
open for trading during the 30 calendar day period ending on such termination
date (which Company share price shall be deemed to equal the Participant’s Grant
Date Price if such termination of employment due to death or Disability occurs
during the first 12 months of 


 


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the Performance Period), and (ii) the Target
Award Opportunity of such Participant will be pro rated to reflect the portion
of the Performance Period actually completed by such Participant as of the date
of such Participant’s termination of employment.  In such instance, the pro rata Target Award
Opportunity shall be determined by multiplying the Target Award Opportunity by
a fraction, the numerator of which shall equal the actual days of employment
with the Company on and after the Participant’s Entry Date through the date of
termination of employment during the Performance Period, and the denominator of
which shall equal the number of days in the Performance Period on and after the
Participant’s Entry Date assuming no such termination of employment had
occurred.


 


(d) Change
in Control.  In the event a “Change in Control” (as defined in the
Annual Incentive Plan) occurs during the Performance Period, the percentage of
the Target Award Opportunity actually earned (if any) with respect to such Performance
Period, and, correspondingly, the amount of the actual Award payout to the Participant
will be calculated using the methodology set forth above in paragraph (b) (without
duplication), except that the Performance Period shall be deemed to end on the
date of the Change in Control, such that the Closing Price will be calculated
based on the average daily closing market price of a share of the Company’s
common stock as quoted on the NASDAQ National Market on the days such market is
open for trading during the 10 calendar day period ending on the date of such
Change in Control.  In such event, the Target
Award Opportunity of the Participant with respect to a Performance Period shall
not be pro rated to reflect the portion of such Performance Period actually
completed as of the date of such Change in Control.


 


Also in such event, if the Plan and outstanding Target
Award Opportunities and Award Letters are not assumed and continued following
the Change in Control, any Award payout to the Participant calculated under
this Section 6(d) shall be paid in cash in a single lump sum within
fifteen days following the Change in Control. 
If the Plan and outstanding Target Award Opportunities and Award Letters
are assumed and continued following such Change in Control, any Award payout to
the Participant (or Participant’s Beneficiary, as defined below) calculated
under this Section 6(d) shall be paid in cash in a single lump sum at
the earliest of (i) the last day of the applicable Performance Period
assuming no Change in Control had occurred (i.e., December 31, 2007 or December 31,
2008), (ii) within fifteen days following the Participant’s termination of
employment with the Company due to death or Disability, or (iii) within
thirty days following the Participant’s Qualifying Termination Event.  For these purposes, “Qualifying Termination Event” means (i) with
respect to a Participant then covered by the ImClone Systems Inc.
Change-in-Control Plan (the “CIC Plan”),
an involuntary termination of the Participant’s employment with the Company
without “Cause” or a voluntary termination of the Participant’s employment with
the Company for “Good Reason,” each as defined under the CIC Plan, that occurs
within 24 months following the Change in Control, or (ii) with respect to
a Participant not then covered by the CIC Plan, an involuntary termination of
the Participant’s employment with the Company without “Cause” (as defined in
the CIC Plan).


 


Following such Change in Control, other than as set
forth in this paragraph (d), no other amounts shall become payable to any
person under this Plan (whether under Section 8 or otherwise).


 


In
the event a Change in Control occurs during a Performance Period, or after the
conclusion of a Performance Period but prior to full payment of then-outstanding
Awards, the Committee shall not be authorized to reduce or eliminate such
outstanding Target Award Opportunities or then-outstanding Award amounts.


 


(e) Non-Duplication.  The provisions of paragraphs (b), (c) and
(d) above are intended to be mutually exclusive, such that, in the event
the Participant becomes entitled to an Award payout pursuant to either paragraph
(b), (c) or (d) above in respect of a Performance Period, such Award payout
shall be the exclusive Award payout for the Participant under the Plan in
respect of such Performance Period.


 


7.  Form of
Payout and Timing


 


Subject
to Section 6(d), Award payouts to Participants with respect to a
Performance Period will be made in cash in a single lump sum within fifteen days
following the conclusion of the applicable Performance Period, without interest.


 


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8.  Termination
of Employment


 


To
be eligible to receive an Award payout under the Plan with respect to a
Performance Period, the Participant must be in active, full-time employment with
the Company on the last day of the applicable Performance Period, except as
expressly provided in Section 6(d) or in this Section 8.


 


Subject
to Section 6(d), in the event the Participant’s employment with the Company
terminates for any reason other than due to death or Disability during a
Performance Period, the Participant shall forfeit any unpaid amounts for such
Performance Period.


 


In
the event the Participant’s employment with the Company terminates during a Performance
Period due to the Participant’s death or Disability, the Participant shall be
eligible for a pro rata Award payout in respect of such Performance Period,
calculated as set forth in Section 6(c). 
Any such Award payout shall be paid in cash in a single lump sum within fifteen
days following the date of such termination of employment to the Participant or
the Participant’s Beneficiary, as applicable (subject to the six-month deferral
requirement if applicable under Section 409A of the Code).  Following such termination of employment, no
other amounts shall become payable to the Participant or the Participant’s
Beneficiary in respect of such Performance Period under this Plan.


 


The
Participant’s “Beneficiary” shall
be the person or persons designated in writing to the Committee or, failing
such designation, to the Participant’s estate. 
No beneficiary designation shall be effective unless it is in writing
and received by the Committee prior to the date of death of the Participant.


 


9.  Amendments and
Termination


 


The
Committee reserves the right at any time, to terminate, amend or suspend the
Plan and the terms and provisions of any Target Award Opportunities or Award
Letters theretofore granted to any Participant which has not been earned and
paid, except that no amendment shall be made that would adversely affect the
rights of a Participant under a Target Award Opportunity theretofore granted,
without the Participant’s consent.  No Target
Award Opportunities may be granted during any suspension of the Plan.


 


10.  Miscellaneous


 


(a) Taxes.  The Company is authorized to withhold from
any Award payout, or any payroll or other payment to a Participant, amounts of
withholding and other taxes due in connection with any transaction involving any
Award payout, and to take such other action as the Committee may deem advisable
to enable the Company and Participants to satisfy obligations for the payment
of withholding taxes and other tax obligations relating to any Award payout.


 


(b) Section 409A.  This Plan is intended to comply with the
applicable requirements of Section 409A of the Code and shall be limited,
construed and interpreted in accordance with such intent.  To the extent that any payment or benefit
hereunder is subject to Section 409A of the Code, it shall be paid in a
manner that will comply with Section 409A of the Code, including proposed,
temporary or final regulations or any other guidance issued by the Secretary of
the Treasury and the Internal Revenue Service with respect thereto, without additional
liability to the Company. 
Notwithstanding anything herein to the contrary, any provision in this
Plan that is inconsistent with Section 409A of the Code shall be deemed to
be amended to comply with Section 409A of the Code and to the extent such
provision cannot be amended to comply therewith, such provision shall be null
and void.


 


(c) Limitations
on Rights Conferred Under Plan and Beneficiaries.  Neither status as a Participant nor receipt of
an Award Letter shall be construed as a commitment that any amount will become
payable under the Plan.  Nothing
contained in the Plan, any Award Letter or any other documents related to the
Plan shall confer upon any Eligible Employee or Participant any right to continue
as an Eligible Employee, Participant or in the employ of the Company or any of
its affiliates or constitute any contract or agreement of employment, or
interfere in any way with the right of the Company to reduce such person’s
compensation, to change the position held by such person or to terminate the
employment of such person, with or without cause, but nothing contained in this
Plan or any document related thereto shall affect any other contractual right
of any Eligible Employee or Participant. 
No benefit payable under, or 


 


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interest
in, this Plan shall be transferable by a Participant except by will or the laws
of descent and distribution or otherwise be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge.


 


(d) Unfunded
Plan.  The Plan shall be unfunded and
shall not create (or be construed to create) a trust or a separate fund or
funds.  To the extent any Participant
holds any obligation of the Company hereunder, such obligation shall constitute
a general unsecured liability of the Company and accordingly shall not confer
upon such person any right, title, or interest in any assets of the Company.


 


(e) Other
Benefit Arrangements.  Compensation
received under the Plan and/or the Target Award Opportunity shall not be
considered for purposes of determining benefits under any other plan or
arrangement maintained by the Company as of the Effective Date or adopted
subsequently, unless such plan or arrangement specifically provides for inclusion
of amounts payable under the Plan.


 


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