Exhibit 10.1


 


1997 EMPLOYEE STOCK PURCHASE PLAN OF


INCYTE CORPORATION


(As amended on April 14, 2020)


 


The following constitute the provisions
of the 1997 Employee Stock Purchase Plan of Incyte Corporation, as amended and restated effective November 5, 2014 and as further
amended on March 16, 2016 and April 14, 2020.


 


1.
           Purpose.  The purpose of the Plan is
to provide employees of the Company and its Designated Subsidiaries with an opportunity to purchase Common Stock of the Company
through accumulated payroll deductions.  It is the intention of the Company to have the Plan qualify as an “Employee
Stock Purchase Plan” under Section 423 of the Internal Revenue Code of 1986, as amended.  The provisions of the
Plan, accordingly, shall be construed so as to extend and limit participation in a manner consistent with the requirements of that
section of the Code.


 


2.
           Definitions.


 


(a)
         “Administrator” shall mean the Board or
a committee consisting exclusively of members of the Board that has been appointed by the Board and authorized to administer the
Plan.


 


(b)
         “Board” shall mean the Board of Directors
of the Company.


 


(c)
         “Code” shall mean the Internal Revenue Code
of 1986, as amended.


 


(d)
         “Common Stock” shall mean the Common Stock,
$.001 par value, of the Company.


 


(e)
         “Company” shall mean Incyte Corporation.


 


(f)
          “Compensation” shall mean all cash
salary, wages, commissions and bonuses, but shall not include any imputed income or income arising from the exercise or disposition
of equity compensation.


 


(g)
         “Effective Date” shall mean November 5,
2014.


 


(h)
         “Designated Subsidiary” shall mean any Subsidiary
which has been designated by the Board or by an executive officer of the Company, from time to time in the Board’s or such
officer’s sole discretion, as eligible to participate in the Plan. A listing of Designated Subsidiaries shall be maintained
as Appendix A to the Plan.


 


(i)
          “Employee” shall mean any individual
who is an Employee of the Company or its Designated Subsidiaries for tax purposes whose customary employment is at least twenty
(20) hours per week and more than five (5) months in any calendar year.  For purposes of the Plan, the employment relationship
shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the Company or
its Designated Subsidiaries, as applicable.  Where the period of leave exceeds 90 days and the individual’s right to
reemployment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated
on the 91st day of such leave.


 


(j)
          “Enrollment Date” shall mean the first
day of each Offering Period.


 


(k)
         “Exercise Date” shall mean the last Trading
Day of each Purchase Period.


 






     


     


    

 


(l)
          “Fair Market Value” shall mean, as
of any date, the value of Common Stock determined as follows:


 


(1)
           If the Common Stock is listed on any established stock exchange
other than The NASDAQ Stock Market, its Fair Market Value shall be the last reported sale price for the Common Stock reported by
the applicable composite transactions report for such exchange on the date of determination, as reported on such stock exchange’s
website or such other source, including The Wall Street Journal, as the Administrator deems reliable; or


 


(2)
           If the Common Stock is listed on The NASDAQ Stock Market, its
Fair Market Value shall be the last reported sale price for the Common Stock quoted on The NASDAQ Stock Market on the date of determination,
as reported on www.nasdaq.com or such other source, including The Wall Street Journal, as the Administrator deems reliable;


 


(3)
           If the Common Stock is traded over-the-counter and is quoted
on the OTC Bulletin Board, its Fair Market Value shall be the last transaction price for the Common Stock quoted by the OTC Bulletin
Board on the date of determination, as reported on www.otcbb.com or such other source as the Administrator deems reliable;


 


(4)
           If the Common Stock is traded over-the-counter but is not quoted
on the OTC Bulletin Board, its Fair Market Value shall be the mean of the closing bid and asked prices for the Common Stock on
the date of determination, as reported on www.pinksheets.com or such other source as the Administrator deems reliable; or


 


(5)
           In the absence of an established market for the Common Stock,
the Fair Market Value thereof shall be determined in good faith by the Board.


 


(m)
        “Offering Periods” shall mean the periods of approximately
twenty-four (24) months during which an option granted pursuant to the Plan may be exercised, commencing on the first Trading Day
on or after May 1 and November 1 of each year and terminating on the last Trading Day in the periods ending twenty-four
months later.  The duration and timing of Offering Periods may be changed pursuant to Section 4 of this Plan.


 


(n)
         “Plan” shall mean this 1997 Employee Stock
Purchase Plan of Incyte Corporation.


 


(o)
         “Purchase Price” shall mean an amount equal
to 85% of the Fair Market Value of a share of Common Stock on the Enrollment Date or on the Exercise Date, whichever is lower.


 


(p)
         “Purchase Period” shall mean the approximately
six-month period commencing after one Exercise Date and ending with the next Exercise Date, except that the first Purchase Period
of any Offering Period shall commence on the Enrollment Date and end with the next Exercise Date.  The duration and timing
of Purchase Periods may be changed pursuant to Section 4 of this Plan.


 


(q)
         “Reserves” shall mean the number of shares
of Common Stock covered by each option under the Plan which have not yet been exercised and the number of shares of Common Stock
which have been authorized for issuance under the Plan but not yet placed under option.


 


(r)
          “Subsidiary” shall mean a corporation
(as defined in Treasury Regulation section 1.421-1(i)), domestic or foreign, of which not less than 50% of the voting shares are
held by the Company or a Subsidiary, whether or not such corporation now exists or is hereafter organized or acquired by the Company
or a Subsidiary.


 


(s)
         “Trading Day” shall mean a day on which
the national securities exchange or stock market on which the Common Stock is principally traded, or, if the Common Stock is not
listed or quoted on any securities exchange or stock market, the New York Stock Exchange, is open for trading.


 


3.
           Eligibility.


 


(a)
         Any Employee who has been employed for one month or more on
a given Enrollment Date shall be eligible to participate in the Plan.


 


(b)
         Any provisions of the Plan to the contrary notwithstanding,
no Employee shall be granted an option under the Plan (i) to the extent that, immediately after the grant, such Employee (or
any other person whose stock would be attributed to such Employee pursuant to Section 424(d) of the Code) would own stock
and/or hold outstanding options to purchase such stock possessing five percent (5%) or more of the total combined voting power
or value of all classes of stock of the Company, its parent or any Subsidiary, or (ii) to the extent that his or her rights
to purchase stock under all employee stock purchase plans of the Company, its parent and Subsidiaries accrues at a rate which exceeds
Twenty-Five Thousand Dollars ($25,000) worth of stock (determined at the fair market value of the shares at the time such option
is granted) for each calendar year in which such option is outstanding at any time.


 






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4.
           Offering Periods.  The Plan shall be
implemented by consecutive, overlapping Offering Periods with a new Offering Period commencing on the first Trading Day on or after
May 1 and November 1 each year, or on such other dates as the Board shall determine, and continuing thereafter until
terminated in accordance with Section 19 hereof.  The Board or a committee thereof shall have the power to change the
duration of Offering Periods (including the commencement dates thereof) and Purchase Periods thereunder with respect to future
offerings without stockholder approval if such change is announced at least five (5) days prior to the scheduled beginning
of the first Offering Period to be affected thereafter.


 


5.
           Participation.


 


(a)
         An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions substantially in the form of Exhibit A to this Plan and
filing it with the Company’s stock administrator not later than ten (10) business days prior to the applicable Enrollment
Date.


 


(b)
         Payroll deductions for a participant shall commence on the
first payroll following the Enrollment Date and shall end on the last payroll in the Offering Period to which such authorization
is applicable, unless sooner terminated by the participant as provided in Section 10 hereof.


 


6.
           Payroll Deductions.


 


(a)
         At the time a participant files his or her subscription agreement,
he or she shall elect to have payroll deductions made on each pay day during the Offering Period in an amount not less than one
percent (1%) and not more than ten percent (10%) of the participant’s Compensation, with such amount designated in integral
multiples of one percent (1%); provided, however, that the aggregate of such payroll deductions during any Offering Period shall
not exceed ten percent (10%) of the participant’s aggregate Compensation during such Offering Period.


 


(b)
         All payroll deductions made for a participant shall be credited
to his or her account under the Plan and shall be withheld in whole percentages only.  A participant may not make any additional
payments into such account.


 


(c)
         A participant may discontinue his or her participation in the
Plan as provided in Section 10, or may increase or decrease the rate of his or her payroll deductions as provided in this
Section 6(c).  A participant may increase the rate of his or her payroll deductions only as of the beginning of a Purchase
Period.  Such increase shall take effect with the first payroll following the beginning of the new Purchase Period provided
the participant has completed and delivered to the Company’s stock administrator a new subscription agreement authorizing
the increase in the payroll deduction rate at least ten (10) business days prior to the beginning of the new Purchase Period. 
A participant may decrease the rate of his or her payroll deductions each month.  Any decrease shall become effective as of
the first payroll of the next calendar month following the date that the participant completes and delivers to the Company’s
stock administrator a new subscription agreement authorizing the decrease in the payroll deduction rate.  However, if the
subscription agreement is not received at least five (5) business days prior to such payroll, the decrease shall become effective
as of the first payroll of the second succeeding calendar month.  The Administrator may, in its discretion, limit the number
of participation rate changes during any Offering Period.  Subject to the foregoing, a participant’s subscription agreement
shall remain in effect for successive Offering Periods unless terminated as provided in Section 10 hereof.


 


(d)
         Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) hereof, a participant’s payroll deductions may be
decreased to zero percent (0%) at any time during a Purchase Period.  Such a decrease shall not be treated as a withdrawal
from the Plan subject to Section 10, unless the participant elects to withdraw pursuant to Section 10.  Payroll
deductions shall recommence at the rate provided in such participant’s subscription agreement at the beginning of the first
Purchase Period which is scheduled to end in the following calendar year, unless the participant elects to withdraw from the Plan
as provided in Section 10 hereof.


 






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(e)
         At the time the option is exercised, in whole or in part, or
at the time some or all of the Common Stock issued under the Plan is disposed of, the participant must make adequate provision
for the federal, state, or other tax withholding obligations, if any, which arise upon the exercise of the option or the disposition
of the Common Stock.  At any time, the Company or a Designated Subsidiary, as applicable, may, but shall not be obligated
to, withhold from the participant’s compensation the amount necessary to meet applicable withholding obligations, including
any withholding required to make available any tax deductions or benefits attributable to sale or early disposition of Common Stock
by the Employee.


 


7.
           Grant of Option.  On the Enrollment
Date of each Offering Period, each eligible Employee participating in such Offering Period shall be granted an option to purchase
on each Exercise Date during such Offering Period (at the applicable Purchase Price) up to a number of shares of Common Stock determined
by dividing such Employee’s payroll deductions accumulated prior to such Exercise Date and retained in the Participant’s
account as of the Exercise Date by the applicable Purchase Price; provided that in no event shall an Employee be permitted to purchase
during each Purchase Period more than eight thousand (8,000) shares of Common Stock (subject to any adjustment pursuant to Section 18)
on the Enrollment Date, and provided further that such purchase shall be subject to the limitations set forth in Sections 3(b) and
13 hereof.  Exercise of the option shall occur as provided in Section 8 hereof, unless the participant has withdrawn
pursuant to Section 10 hereof.  The option shall expire on the last day of the Offering Period.


 


8.
           Exercise of Option.  Unless a participant
withdraws from the Plan as provided in Section 10 hereof, his or her option for the purchase of shares of Common Stock shall
be exercised automatically on the Exercise Date, and the maximum number of full shares of Common Stock subject to option shall
be purchased for such participant at the applicable Purchase Price with the accumulated payroll deductions in his or her account. 
No fractional shares shall be purchased; any payroll deductions accumulated in a participant’s account which are not sufficient
to purchase a full share shall be retained in the participant’s account for the subsequent Purchase Period or Offering Period,
subject to earlier withdrawal by the participant as provided in Section 10 hereof.  Any other monies left over in a participant’s
account after the Exercise Date shall be returned to the participant.  During a participant’s lifetime, a participant’s
option to purchase shares hereunder is exercisable only by him or her.


 


9.
           Delivery.  As promptly as practicable
after each Exercise Date on which a purchase of shares occurs, a share certificate or certificates representing the number of shares
of Common Stock so purchased shall be delivered to a brokerage account designated by the Company and kept in such account pursuant
to a subscription agreement between each participant and the Company and subject to the conditions described therein which may
include a requirement that shares be held and not sold for certain time periods, or the Company shall establish some other means
for such participants to receive ownership of the shares.


 


10.
         Discontinuation; Withdrawal.


 


(a)
         A participant may discontinue his or her participation in the
Plan only by withdrawing from the Plan as provided in this Section 10.  A participant may withdraw all but not less than
all the payroll deductions credited to his or her account and not yet used to exercise his or her option under the Plan by giving
written notice to the Company substantially in the form of Exhibit B to this Plan.  Such notice must be received by the
Company no later than 2:00 p.m. Pacific Standard Time on the second Trading Day preceding the Exercise Date.  All of
the participant’s payroll deductions credited to his or her account shall be paid to such participant promptly after receipt
of notice of withdrawal and such participant’s option for the Offering Period shall be automatically terminated, and no further
payroll deductions for the purchase of shares shall be made for such Offering Period.  If a participant withdraws from an
Offering Period, payroll deductions shall not resume at the beginning of the succeeding Offering Period unless the participant
delivers to the Company a new subscription agreement in accordance with Section 5(a).


 






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(b)
         A participant’s withdrawal from an Offering Period shall
not have any effect upon his or her eligibility to participate in any similar plan which may hereafter be adopted by the Company
or in succeeding Offering Periods which commence after the participant withdraws from the Plan, subject to compliance with Section 5(a).


 


11.
         Termination of Employment.


 


Upon a participant’s ceasing to be an
Employee, for any reason, he or she shall be deemed to have elected to withdraw from the Plan and the payroll deductions credited
to such participant’s account during the Offering Period but not yet used to exercise the option shall be returned to such
participant or, in the case of his or her death, to the person or persons entitled thereto under Section 15 hereof, and such
participant’s option shall be automatically terminated.


 


12.
         Interest.  No interest shall accrue on the payroll
deductions of a participant in the Plan.


 


13.
         Stock.


 


(a)
         The maximum number of shares of Common Stock which shall be
made available for sale under the Plan shall be nine million six hundred thousand (9,600,000) shares, subject to adjustment upon
changes in capitalization of the Company as provided in Section 18 hereof.  If, on a given Exercise Date, the number
of shares with respect to which options are to be exercised exceeds the number of shares then available under the Plan, the Company
shall make a pro rata allocation of the shares remaining available for purchase in as uniform a manner as shall be practicable
and as it shall determine to be equitable.


 


(b)
         The participant shall have no interest or voting right in shares
covered by his option until such option has been exercised.


 


(c)
         Shares purchased by a participant under the Plan shall be registered
in the name of the participant or in the name of the participant and his or her spouse.


 


14.
         Administration.  The Plan shall be administered
by the Administrator.  The Administrator shall have full and exclusive discretionary authority to adopt such rules, guidelines
and forms as it deems appropriate to implement the Plan, to construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan.  Every finding, decision and determination made by the Administrator
shall, to the full extent permitted by law, be final and binding upon all parties.


 


15.
         Designation of Beneficiary.


 


(a)
         A participant may file a written designation of a beneficiary
who is to receive any shares and cash, if any, from the participant’s account under the Plan in the event of such participant’s
death subsequent to an Exercise Date on which the option is exercised but prior to delivery to such participant of such shares
and cash.  In addition, a participant may file a written designation of a beneficiary who is to receive any cash from the
participant’s account under the Plan in the event of such participant’s death prior to exercise of the option. 
If a participant is married and the designated beneficiary is not the spouse, spousal consent shall be required for such designation
to be effective.


 


(b)
         Such designation of beneficiary may be changed by the participant
at any time by written notice.  In the event of the death of a participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant’s death, the Company shall deliver such shares and/or cash to
the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one
or more dependents or relatives of the participant, or if no spouse, dependent or relative is known to the Company, then to such
other person as the Company may designate.


 


16.
         Transferability.  Neither payroll deductions credited
to a participant’s account nor any rights with regard to the exercise of an option or to receive shares under the Plan may
be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution
or as provided in Section 15 hereof) by the participant.  Any such attempt at assignment, transfer, pledge or other disposition
shall be without effect, except that the Company may treat such act as an election to withdraw funds from an Offering Period in
accordance with Section 10 hereof.


 






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17.
         Use of Funds.  All payroll deductions received
or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated
to segregate such payroll deductions.


 


18.          Adjustments
Upon Changes in Capitalization, Dissolution, Liquidation, Merger or Asset Sale.


 


(a)
         Changes in Capitalization.  Subject to any required
action by the stockholders of the Company, the Reserves, the maximum number of shares each participant may purchase each Purchase
Period (pursuant to Section 7), as well as the Purchase Price per share and the number of shares of Common Stock covered by
each option under the Plan which has not yet been exercised shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification
of the Common Stock, or any other increase or decrease in the number of outstanding shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed
to have been “effected without receipt of consideration”.  Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive.  Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common Stock subject to an option.


 


(b)
         Dissolution or Liquidation.  In the event of the
proposed dissolution or liquidation of the Company, the Offering Periods shall terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Board.


 


(c)
         Merger or Asset Sale.  In the event of a proposed
sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, limited
liability company or other entity, the Plan shall terminate upon the date of the consummation of such transaction and any Purchase
Periods then in progress shall be shortened by setting a new Exercise Date (the “New Exercise Date”) and any Offering
Periods then in progress shall end on the New Exercise Date, unless the plan of merger, consolidation or reorganization provides
otherwise.  The New Exercise Date shall be determined by the Board in its sole discretion; provided, that the New Exercise
Date shall be before the date of the Company’s proposed sale or merger.  The Administrator shall notify each participant
in writing, at least ten (10) business days prior to the New Exercise Date, that the Exercise Date for the participant’s
option has been changed to the New Exercise Date and that the participant’s option shall be exercised automatically on the
New Exercise Date, unless prior to such date the participant has withdrawn from the Offering Period as provided in Section 10
hereof.  The Plan shall in no event be construed to restrict the Company’s right to undertake any liquidation, dissolution,
merger, consolidation or other reorganization.


 


19.
         Amendment or Termination.


 


(a)
         The Board may at any time and for any reason terminate or amend
the Plan.  Except as provided in Section 18 hereof, no such termination can affect options previously granted, provided
that an Offering Period may be terminated by the Board on any Exercise Date if the Board determines that the termination of the
Plan is in the best interests of the Company and its stockholders.  Except as provided in Section 18 hereof, no amendment
may make any change in any option theretofore granted which adversely affects the rights of any participant.  To the extent
necessary to comply with Section 423 of the Code (or any successor rule or provision or any other applicable law, regulation
or stock exchange rule), the Company shall obtain stockholder approval in such a manner and to such a degree as required.


 


(b)
         Without stockholder consent and without regard to whether any
participant rights may be considered to have been “adversely affected,” the Administrator shall be entitled to change
the Offering Periods or Purchase Periods, limit the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding
in excess of the amount designated by a participant in order to adjust for delays or mistakes in the Company’s processing
of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock for each participant properly correspond with amounts
withheld from the participant’s Compensation, and establish such other limitations or procedures as the Administrator determines
in its sole discretion advisable which are consistent with the Plan.


 






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20.
         Notices.  All notices or other communications by
a participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the
form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.


 


21.
         Conditions Upon Issuance of Shares.  Shares shall
not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange or stock market upon which the shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.


 


As a condition to the exercise of an option,
the Company may require the person exercising such option to represent and warrant at the time of any such exercise that the shares
are being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion
of counsel for the Company, such a representation is required by any of the aforementioned applicable provisions of law.


 


22.
         No Rights As An Employee.  Nothing in the Plan
or in any right granted under the Plan shall confer upon a participant any right to continue in the employ of the Company or any
Designated Subsidiary for any period of specific duration or interfere with or otherwise restrict in any way the rights of the
Company or any Designated Subsidiary or of a participant, which rights are hereby expressly reserved by each, to terminate his
or her employment at any time and for any reason, with or without cause.


 


23.
         Term of Plan.  The Plan, as amended and restated,
shall become effective upon the Effective Date.  It shall continue until terminated under Section 19 hereof.


 


24.
         Automatic Transfer to Low Price Offering Period. 
To the extent permitted by any applicable laws, regulations, or stock exchange rules, if the Fair Market Value of the Common Stock
on any Exercise Date in an Offering Period is lower than the Fair Market Value of the Common Stock on the Enrollment Date of such
Offering Period, then all participants in such Offering Period shall be automatically withdrawn from such Offering Period immediately
after the exercise of their option on such Exercise Date and automatically re-enrolled in the immediately following Offering Period
as of the first day thereof.


 






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