Filed by Bowne Pure Compliance





EXHIBIT 10.7




AMENDMENT NO. 1




TO




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




AMENDMENT (“Amendment”) made effective on December 31, 2008 to the amended and restated
employment agreement dated as of May 1, 2006 (the “Employment Agreement”), among Celgene
Corporation, a Delaware corporation (the “Company”), and Sol. J. Barer (the “Executive”).



WHEREAS, the Company and the Executive have previously entered into the Employment Agreement;
and



WHEREAS, the Company and the Executive desire to amend the Employment Agreement in a manner
intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended.



NOW, THEREFORE, effective December 31, 2008, the Employment Agreement is hereby amended as
follows:



1. Section 3(d) of the Employment Agreement is hereby amended to insert a new sentence at the
end thereof to read as follows:




“Notwithstanding the foregoing, such stock options may not be
exercised beyond their stated term.”



2. Section 3(f) of the Employment Agreement is hereby amended to insert a new sentence at the
end thereof to read as follows:




“Any reimbursements made pursuant to this Section 3(f) shall be
subject to Section 22(c) hereof.”



3. Section 4 of the Employment Agreement is hereby amended to insert a new sentence at the end
thereof to read as follows:




“Any reimbursements made pursuant to this Section 4 shall be subject
to Section 22(c) hereof.”


 


 









 






4. The last paragraph of Section 10(c) is hereby amended in its entirety to read as follows:




“With respect to the health benefits under (iii) above, Employee (and,
if applicable, Employee’s dependents) shall timely elect continuation
of group health coverage following the termination of Employee’s
employment in accordance with the Consolidated Omnibus Budget
Reconciliation Act, as amended (“COBRA”). Provided that
Employee timely elects COBRA coverage, the Company shall
reimburse Employee (and, if applicable, Employee’s dependents), for a
period of eighteen (18) months following Employee’s termination for
the monthly premium for such COBRA coverage in an amount equal to 600%
of such monthly premium on a tax grossed-up basis (to the extent such
monthly premium is taxable), payable in a lump sum on the first
payroll date following the six (6) month anniversary of the date of
termination, and, beginning on the first day of the seventh
(7th) month following the date of termination, the Company
shall pay to Employee on the first payroll date in each month
following the termination date an amount equal to 100% of the monthly
premium for such COBRA coverage for the applicable month on a tax
grossed-up basis (to the extent such monthly premium is taxable).
Following the expiration of the applicable COBRA period, in the event
the plan under which Employee and his dependents were receiving health
benefits immediately prior to Employee’s date of termination is not
fully-insured, then the Company shall either, as determined by the
Company in its sole discretion: (A) provide health coverage to
Employee and his dependents pursuant to a fully-insured replacement
policy or (B) in lieu of such health coverage, pay Employee for the
remainder of the three-year period, monthly cash payments equal to the
premium cost the Company would have otherwise paid for such benefits
for Employee and Employee’s dependents, on a tax grossed-up basis, as
determined on the termination date (adjusted for increase in the
cost-of-living index, as defined in Treasury regulation §
1.401(a)(9)-6, Q&A-14(b)(2)). In lieu of the above, in the event the
plan under which Employee and his dependents were receiving health
benefits immediately prior to Employee’s date of termination is
fully-insured and the terms of such plan permit Employee and
Employee’s dependents to remain covered thereunder following his
termination of employment, then Employee and Employee’s dependents
shall receive continued coverage under such plan to the extent
permitted thereunder and any such coverage shall run concurrently with
the COBRA period following the date of termination.”



5. The first sentence of Section 10(d) of the Employment Agreement is hereby amended to insert
“Except to the extent provided in Section 10(e)” at the beginning thereof.






 


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6. Section 10(e) of the Employment Agreement is hereby amended to the following at the end
thereof to read as follows:



“Notwithstanding the foregoing, with respect to a termination pursuant
to Section 10(c) upon a Change in Control due to Employee’s
termination without Cause or for Good Reason within ninety (90) days
prior to a Change in Control, Change in Control shall mean the
occurrence of the following:




(i) any person (as defined in Section 3(a)(9) of the Exchange Act and
as used in Sections 13(d) and 14(d) thereof), excluding the Company,
any subsidiary of the Company and any employee benefit plan sponsored
or maintained by the Company or any subsidiary of the Company
(including any trustee of any such plan acting in his capacity as
trustee), becoming the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act) of securities of the Company representing
thirty percent (30%) of the total combined voting power of the
Company’s then outstanding securities;




(ii) a Transaction other than (A) a Transaction involving only the
Company and one or more of its subsidiaries, or (B) a Transaction
immediately following which the stockholders of the Company
immediately prior to the Transaction continue to have a majority of
the voting power in the resulting entity and no person (other than
those covered by the exceptions in (a) above) becomes the beneficial
owner of securities of the resulting entity representing more than
twenty-five percent (25%) of the voting power in the resulting entity;




(iii) during any period of one (1) year beginning on or after the date
hereof, the Incumbent Directors ceasing (for any reason other than
death) to constitute at least a majority of the Board or the board of
directors of any successor to the Company, provided that, any director
who was not a director as of the date hereof shall be deemed to be an
Incumbent Director if such director was elected to the board of
directors by, or on the recommendation of or with the approval of, a
majority of the directors who then qualified as Incumbent Directors
either actually or by prior operation of the foregoing, unless such
election, recommendation or approval occurs as a result of an actual
or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act or any successor
provision) or any other actual or threatened solicitation of proxies
or contests by or on behalf of a person other than a member of the
Board; or




(iv) the consummation of a sale of all or substantially all of the
Company’s assets other than the sale of all or substantially all of
the assets of the Company to a person or persons who beneficially own,
directly or indirectly, at least fifty percent (50%) or more of the
combined voting power of the outstanding voting securities of the
Company at the time of such sale.




Notwithstanding anything herein to the contrary, the definition of
Change in Control for purposes of this Section 10(e) shall only
constitute a Change in Control for this purpose if the Change in
Control constitutes a “change in the ownership of the corporation,” a
“change in the effective control of a corporation” or a “change in the
ownership of a substantial portion of a corporation’s assets” pursuant
to Section 409A of the Code.”


 


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7. Section 11(a) of the Employment Agreement is hereby amended to insert a new sentence at the
end thereof to read as follows:




“The reduction of the Company Payments to the Reduced Amount, if
applicable, shall be made by reducing the payments and benefits under
the following sections in the following order: (i) Section 10(c)(iv);
(ii) Section 10(c)(i); and (iii) Section 10(c)(iii).”



8. The first sentence of Section 11(c) of the Employment Agreement is hereby amended in its
entirety to read as follows:




“For purposes of determining the amount of the Gross-up Payment,
Employee shall be deemed to pay taxes at the actual marginal rates of
federal, state and local income taxation in the calendar year in which
any such Gross-up Payment is to be made.”



9. Section 11(d) of the Employment Agreement is hereby amended to insert a new sentence at the
end thereof to read as follows:




“Notwithstanding the foregoing, any Gross-up Payment shall in all
events be paid within 60 days following the date on which Employee is
required to remit the Excise Tax. In the event that the Company is
required to make an additional Gross-up Payment as a result of a later
and final determination by the Internal Revenue Service, then such
additional Gross-up Payment shall be paid by the Company no later than
the date by which such taxes were due to have been paid as a result of
such final and non-appealable determination, and in all events by the
end of the taxable year following the date of such determination, or
on such earlier date as payment is due to avoid the Employee becoming
subject to the entry of a judgment against him or other action by the
Internal Revenue Service to enforce such assessment.”



10. Section 22 of the Employment Agreement is hereby amended in its entirety to read as
follows:




“22. Section 409A of the Code.




(a) Although the Company does not guarantee to Employee any
particular tax treatment relating to the payments and benefits under
this Agreement, it is intended that such payments and benefits be
exempt from, or comply with, Section 409A of Code and the regulations
and guidance promulgated thereunder (collectively “Code Section
409A”), and all provisions of this Agreement shall be construed in
a manner consistent with the requirements for avoiding taxes or
penalties under Code Section 409A. If any provision of this Agreement
(or of any award of compensation, including equity compensation or
benefits) would cause Employee to incur any additional tax or interest
under Code Section 409A, the Company
shall, upon Employee’s specific request, use its reasonable business
efforts to in good faith reform such provision to comply with Code
Section 409A; provided, that to the maximum extent practicable, the
original intent and economic benefit to Employee and the Company of
the applicable provision shall be maintained, but the Company shall
have no obligation to make any changes that could create any
additional economic cost or loss of benefit to the Company.


 


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(b) To the extent a payment or benefit is deferred compensation
subject to Code Section 409A, a termination of employment shall not be
deemed to have occurred for purposes of any provision of this
Agreement providing for the payment of any amounts or benefits upon or
following a termination of employment unless such termination is also
a “separation from service” within the meaning of Code Section 409A
and, for purposes of any such provision of this Agreement, references
to a “termination,” “termination of employment” or like terms shall
mean “separation from service.”




(c) With regard to any provision herein that provides for
reimbursement of costs and expenses or in-kind benefits, except as
permitted by Code Section 409A, (i) the right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for
another benefit; (ii) the amount of expenses eligible for
reimbursement, or in-kind benefits, provided during any taxable year
shall not affect the expenses eligible for reimbursement, or in-kind
benefits to be provided, in any other taxable year, provided,
that the foregoing clause (ii) shall not be violated with regard to
expenses reimbursed under any arrangement covered by Section 105(b) of
the Code solely because such expenses are subject to a limit related
to the period the arrangement is in effect; and (iii) such payments
shall be made on or before the last day of Employee’s taxable year
following the taxable year in which the expense was incurred.




(d) Whenever a payment under this Agreement specifies a payment period
with reference to a number of days (e.g., “payment shall be
made within ten (10) days following the date of termination”), the
actual date of payment within the specified period shall be within the
sole discretion of the Company.




(e) If under this Agreement, an amount is to be paid in two or more
installments, for purposes of Code Section 409A, each installment
shall be treated as a separate payment.”


 


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IN WITNESS WHEREOF, the undersigned has caused this Amendment to
be executed this 22nd day of December, 2008.



	 	 	 	 	 
	 	EXECUTIVE 	 
	 	 	 
	 	/s/
Sol J. Barer 	 
	 	Sol J. Barer 	 
	 	 	 
	 	CELGENE CORPORATION

 	 
	 	By:  	/s/
Robert J. Hugin	 
	 	 	Name:  	Robert J. Hugin	 
	 	 	Title:  	Chief Operating Officer	 




 


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