Exhibit 10.10.2


 


AMENDMENT TO EMPLOYMENT AGREEMENT


 


This
Amendment to the Employment Agreement (this “Amendment”) is effective as of the
1st day of January, 2009 (the “Effective Date”) by and between INCYTE
CORPORATION, (f/k/a Incyte Genomics, Inc.), a Delaware corporation (the “Company”),
and Paul Friedman (the “Executive”).


 


WHEREAS,
the parties entered into that certain Employment Agreement dated as of  November 26, 2001 (the “Employment
Agreement”).


 


WHEREAS,
the parties desire to amend the Employment Agreement, as set forth below, to
comply with the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements included in
this Amendment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:


 


1.                                       Section 3(a)(i) of the
Employment Agreement is hereby amended by deleting the last paragraph of such
section and replacing it with the following:


 


“Subject to Section 10(c),
the payments described in this Section 3(a)(i) shall be paid to the
Executive in a lump sum payment within 30 days after the Date of Termination.”


 


2.                                       Section 3(b)(i) of the
Employment Agreement is hereby amended by deleting the last paragraph of such
section and replacing it with the following:


 


“Subject to Section 10(c),
the payments described in this Section 3(b)(i) shall be paid to the
Executive in a lump sum payment within 30 days after the Date of Termination.”


 


3.                                       The Employment Agreement is hereby
amended to include the following new Section 10:


 


“SECTION 10.  CODE SECTION 409A
COMPLIANCE.


 


(a)                                  To the fullest extent applicable, amounts
and other benefits payable under this Agreement are intended to be exempt from
the definition of “nonqualified deferred compensation” under section 409A of
the Code (“Section 409A”) in accordance with one or more of the exemptions
available under the final Treasury regulations promulgated under Section 409A
and, to the extent that any such amount or benefit is or becomes subject to Section 409A
due to a failure to qualify for an exemption from the definition of
nonqualified deferred compensation in accordance with such final Treasury
regulations, this Agreement is intended to comply with the applicable
requirements of Section 409A with 


 

















 


respect to such amounts or benefits.  This Agreement shall be interpreted and
administered to the extent possible in a manner consistent with the foregoing
statement of intent.


 


(b)                                 Notwithstanding
anything in this Agreement or elsewhere to the contrary, for purposes of
determining the payment date of any amounts that are treated as nonqualified
deferred compensation under Section 409A of the Code that become payable
under this Agreement in connection with a termination of employment, the Date
of Termination shall be the date on which the Executive has incurred a “separation
from service” within the meaning of Treasury Regulation section 1.409A-1(h), or
in subsequent IRS guidance under Code section 409A.


 


(c)                                  Notwithstanding
anything in this Agreement or elsewhere to the contrary, if the Company
reasonably determines that (A) the Executive is a “specified employee”
(within the meaning of Treasury Regulation Section 1.409A-1(i)) on the
Executive’s Date of Termination and (B) commencement of any payments or
other benefits payable under this Agreement in connection with the Executive’s
separation from service, including without limitation, payment of any of the
payments on the scheduled payment dates specified in Section 3, will
subject the Executive to an “additional tax” under Section 409A(a)(1)(B) (together
with any interest or penalties imposed with respect to, or in connection with,
such tax, a “Section 409A Tax”), then the Company shall withhold payment
of any such payments or benefits until the first business day of the seventh
month following the date of the Executive’s Date of Termination or, if earlier,
the date of the Executive’s death (the “Delayed Payment Date”).  In the event that this Section 10(c) requires
any payments to be withheld, such withheld payments shall be accumulated and
paid in a single lump sum, with interest at the applicable federal rate
provided in section 7872(f)(2) of the Code, on the Delayed Payment Date.


 


(d)                                 In each case where this Agreement
provides for the payment of an amount that constitutes nonqualified deferred
compensation under Section 409A to be made to the Executive within a
designated period (e.g., within 30 days after the Date of Termination) and such
period begins and ends in different calendar years, the exact payment date
within such range shall be determined by the Company, in its sole discretion,
and the Executive shall have no right to designate the year in which the
payment shall be made.


 


(e)                                  The Company and
the Executive may agree to take other actions to avoid the imposition of a Section 409A
Tax at such time and in such manner as permitted under Section 409A.”


 


4.                                       The Employment
Agreement is and shall continue in full force and effect, except as amended by
this Amendment.


 


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5.                                       Any and all
capitalized terms which are not explicitly defined herein shall have the
meaning ascribed to them in the Employment Agreement.


 


6.                                       This Amendment
may be signed in counterpart originals, which collectively shall have the same
legal effect as if all signature appeared on the same physical document.  This Amendment may be signed and exchanged by
electronic or facsimile transmission, with the same legal effect as if the
signatures had appeared in original handwriting on the same physical document.


 


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IN WITNESS WHEREOF, the parties have duly executed
and delivered this Amendment effective as of the date written above.


 


	
   

  	
   

  	
  EXECUTIVE

  
	
  Date:  December 30,
  2008

  	
   

  	
    /s/ Paul
  Friedman

  
	
   

  	
   

  	
    Paul Friedman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  INCYTE CORPORATION

  
	
  Date:  December 30, 2008

  	
   

  	
  By:

  	
  /s/ Paula J. Swain

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Paula J. Swain

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  



 


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