As filed with the Securities and Exchange Commission on September 30, 1998
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IMCLONE SYSTEMS INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 04-2834797
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
180 Varick Street
New York, New York 10014
(Address of Principal Executive Offices) (Zip Code)
ImClone Systems Incorporated 1998 Non-Qualified Stock Option Plan, As Amended
ImClone Systems Incorporated 1998 Employee Stock Purchase Plan
Option to Purchase 60,000 Shares of Common Stock
(Full title of the plan)
------------------
John B. Landes
Vice President, Business Development and General Counsel
ImClone Systems Incorporated
180 Varick Street
New York, New York 10014
(Name and address of agent for service)
(212) 645-1405
(Telephone number, including area code, of agent for service)
Copy to:
Lawrence A. Darby III, Esq.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022-3598
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Amount Proposed maximum Proposed maximum Amount of
securities to to be offering price aggregate registration
be registered registered(1) per share(2) offering price(2) fee
- --------------------------------------------------------------------------------
Common Stock,
$.001 par
value ....... 637,000 $11.44 $7,287,280 $2,150
363,000 9.625 3,493,875 1,031
500,000 9.625 4,812,500 1,420
60,000 10.125 607,500 180
- --------------------------------------------------------------------------------
Totals .... 1,560,000 $16,201,155 $4,781
================================================================================
- ----------
(1) Excludes such additional indeterminate number of shares as may be issuable
pursuant to the anti-dilution provisions of the Plans (as defined) or the
Martell Option (as defined). This total represents (i) 1,000,000 shares of
Common Stock and 500,000 shares of Common Stock reserved for issuance
pursuant to options granted or which may be granted under the ImClone
Systems Incorporated 1998 Non-Qualified Stock Option Plan, As Amended, and
the ImClone Systems Incorporated 1998 Employee Stock Purchase Plan,
respectively (together, the "Plans") and (ii) 60,000 shares of Common
Stock reserved for issuance to the Company's, Vice President, Marketing,
pursuant to a certain Option Agreement dated as of September 1, 1998.
(2) Estimated solely for the purposes of calculating the registration fee.
Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933,
as amended, the proposed maximum offering price per share and the proposed
maximum aggregate offering price of shares subject to outstanding options
have been determined on the basis of the average exercise prices of the
outstanding options and shares not subject to outstanding options have
been determined based on the average of the high and low prices of the
Common Stock on September 29, 1998, as reported by the NASDAQ National
Market.
<PAGE>
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants in the
Plans as specified by Rule 428(b)(i) under the Securities Act of 1933, as
amended. Such documents are not required to be, and are not being, filed by the
Company with the Securities and Exchange Commission, either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act of 1933, as amended. Such documents, together
with the documents incorporated by reference herein pursuant to Item 3 of Part
II of this Registration Statement on Form S-8, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by ImClone
Systems Incorporated, a Delaware corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 1998 and June 30, 1998.
3. The Company's Current Report on Form 8-K filed with the Commission on
February 10, 1998.
4. The description of the Company's Common Stock, par value $.001 per share,
contained in its Registration Statement on Form 8-A filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All other documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which de-registers all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents
(such documents, and the documents enumerated above, being hereinafter referred
to collectively as the "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained therein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statements
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation and Bylaws set forth the extent
to which officers and directors of the Company may be indemnified against any
liabilities which they may incur. The general effect of such provisions is that,
on the terms and conditions set forth in the Company's Certificate of
Incorporation and Bylaws, any person made a party or threatened to be made a
party to an action, suit or proceeding by reason of the fact that he or she is
or was a director or officer of the Company, or is or was serving as a director,
officer, employee or agent of another corporation or other enterprise at the
request of the Company, shall be indemnified by the Company against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
reasonably incurred or suffered by him or her in connection with such action,
suit or proceeding, to the full extent permitted under the laws of the State of
Delaware; provided, however, that, subject to certain limited exceptions, the
Company shall indemnify any such person
3
<PAGE>
seeking indemnification in connection with a proceeding initiated by such person
only if such proceeding was authorized by the Board of Directors of the Company.
The Company's Certificate of Incorporation gives the Board of Directors of the
Company the authority to extend such indemnification to employees and other
agents of the Company as well.
The general effect of the indemnification provisions contained in Section
145 of the General Corporation Law of the State of Delaware (the "DGCL") is as
follows: A director or officer who, by reason of such directorship or
officership, is involved in any action, suit or proceeding (other than an action
by or in the right of the corporation) may be indemnified by the corporation
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, has no
reasonable cause to believe that his or her conduct was unlawful. A director or
officer who, by reason of such directorship or officership, is involved in any
action or suit by or in the right of the corporation may be indemnified by the
corporation against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which he or she shall have been adjudged to be liable to
the corporation unless and only to the extent that a court of appropriate
jurisdiction shall approve such indemnification.
The Company's Certificate of Incorporation provides that, to the maximum
extent permitted under the DGCL, a director of the Company shall not be
personally liable to the Company or to any of its stockholders for monetary
damages for breach of fiduciary duty as a director of the Company. Section
102(b)(7) of the DGCL permits a corporation to include in its certificate of
incorporation a provision that eliminates or limits the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director; provided, that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived in improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP with
respect to the legality of the securities being registered.
(Filed herewith).
23.1 Consent of KPMG Peat Marwick LLP. (Filed herewith).
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP.
(Included in Exhibit 5).
24. Power of Attorney. (Included on signature pages to this
Registration Statement).
99.1 ImClone Systems Incorporated 1998 Non-Qualified Stock
Option Plan. (Incorporated by reference to Exhibit 10.69 of
ImClone Systems Incorporated's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1998).
99.2 ImClone Systems Incorporated 1998 Employee Stock Purchase
Plan. (Incorporated by reference to Exhibit 10.68 of
ImClone Systems Incorporated's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1998).
4
<PAGE>
99.3 Option Agreement, dated as of September 1, 1998, between
ImClone Systems Incorporated and Ron Martell. (Filed herewith)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission
5
<PAGE>
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 30th day of
September 1998.
IMCLONE SYSTEMS INCORPORATED
By: /S/ Samuel D. Waksal
-----------------------------------
Samuel D. Waksal
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose individual signature
appears below hereby authorizes Samuel D. Waksal, Harlan W. Waksal and John B.
Landes, or any of them, to execute in the name and on behalf of each such person
and to file any amendment to this Registration Statement, and appoints Samuel D.
Waksal, Harlan W. Waksal and John B. Landes, or any of them, as attorney-in-fact
to sign on his behalf individually and in each capacity stated below, and to
file any amendments to this Registration Statement, including any and all
post-effective amendments.
Signature Title Date
--------- ----- ----
/S/ Robert F. Goldhammer Chairman of the Board September 30, 1998
- ------------------------- and Director
Robert F. Goldhammer
/S/ Samuel D. Waksal President, Chief Executive September 30, 1998
- --------------------- Officer and Director
Samuel D. Waksal (Principal Executive Officer)
/S/ Harlan W. Waksal Executive Vice President, September 30, 1998
- --------------------- Chief Operating Officer
Harlan W. Waksal and Director
/S/ Carl Goldfischer Vice President of Finance September 30, 1998
- --------------------- and Chief Financial Officer
Carl Goldfischer (Principal Financial and
Accounting Officer)
/S/ Jean Carvais Director September 30, 1998
- -----------------------
Jean Carvais
/S/ Vincent T. DeVita, Jr. Director September 30, 1998
- ---------------------------
Vincent T. DeVita, Jr.
/S/ Paul B. Kopperl Director September 30, 1998
- -----------------------
Paul B. Kopperl
/S/ William R. Miller Director September 30, 1998
- -----------------------
William R. Miller
/S/ David M. Kies Director September 30, 1998
- -----------------------
David M. Kies
/S/ Richard Barth Director September 30, 1998
- -----------------------
Richard Barth
/S/ John Mendelsohn Director September 30, 1998
- -----------------------
John Mendelsohn
S-1
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
- ------- ------------
5.1 Opinion of Messrs. Kaye, Scholer, Fierman, Hays & Handler, LLP.
(Filed herewith).
23.1 Consent of KPMG Peat Marwick LLP. (Filed herewith).
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP.
(Included in Exhibit 5).
24. Power of Attorney. (Included on signature pages to this
Registration Statement).
99.1 ImClone Systems Incorporated 1998 Non-Qualified Stock Option
Plan. (Incorporated by reference to Exhibit 10.69 of ImClone
Systems Incorporated's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1998).
99.2 ImClone Systems Incorporated 1998 Employee Stock Purchase
Plan. (Incorporated by reference to Exhibit 10.68 of ImClone
Systems Incorporated's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1998).
99.3 Option Agreement, dated as of September 1, 1998, between
ImClone Systems Incorporated and Ron Martell. (Filed herewith)
EXHIBIT 5.1
[Kaye, Scholer, Fierman, Hays & Handler, LLP Letterhead]
(212) 836-8000
September 30, 1998
ImClone Systems Incorporated
180 Varick Street
New York, New York 10014
Ladies and Gentlemen:
We have acted as special counsel to ImClone Systems Incorporated, a
Delaware corporation (the "Company"), in connection with the Company's
registration statement on Form S-8 (the "Registration Statement") to be filed
pursuant to the Securities Act of 1933, as amended. The Registration Statement
relates to (i) an aggregate of 1,000,000 shares of the Company's Common Stock,
par value $.001 per share (the "Common Stock"), which may be issued upon the
exercise of stock options to be granted pursuant to the ImClone Systems
Incorporated 1998 Non-Qualified Stock Option Plan (the "Option Plan"), (ii) an
aggregate of 500,000 shares of Common Stock which may be issued upon the
exercise of stock options to be granted pursuant to the ImClone Systems
Incorporated 1998 Employee Stock Purchase Plan (the "Purchase Plan") and (iii)
an aggregate of 60,000 shares of Common Stock which may be issued upon the
exercise of stock options granted to Mr. Ron Martell pursuant to that certain
Non-Qualified Stock Option Agreement, dated as of September 1, 1998, between Mr.
Martell and the Company (the "Martell Option Agreement").
In that connection, we have reviewed the Company's certificate of
incorporation, as amended, its by-laws, resolutions adopted by its Board of
Directors and its stockholders, the Registration Statement, the Option Plan, the
Purchase Plan, the Martell Option Agreement, and such other documents and
proceedings as we have deemed appropriate.
On the basis of such review, and having regard to legal considerations
that we deem relevant, we are of the opinion that the shares of Common Stock to
be offered pursuant to the Registration Statement have been duly authorized and,
when issued in accordance with the terms set forth in the Option Plan or the
Purchase Plan or the Martell Option Agreement, as applicable, will be validly
issued, fully paid and nonassessable.
Our opinion set forth above is based as to matters of law solely on
applicable provisions of the General Corporation Law of the State of Delaware,
and we express no opinion as to any other laws, statutes, ordinances, rules or
regulations.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this opinion, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
/S/ Kaye, Scholer, Fierman, Hays & Handler, LLP
------------------------------------------------
Kaye, Scholer, Fierman, Hays & Handler, LLP
EXHIBIT 23.1
The Board of Directors
Imclone Systems Incorporated:
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
New York, New York
September 30, 1998
EXHIBIT 99.3
IMCLONE SYSTEMS INCORPORATED
NON-QUALIFIED
STOCK OPTION AGREEMENT
AGREEMENT, entered into as of the 1st day of September, 1998, by and
between ImClone Systems Incorporated, a Delaware corporation (the "Company"),
and the undersigned who has accepted a position with the Company as its Vice
President, Marketing (the "Employee").
WHEREAS, the Company desires to grant the Employee a non-qualified stock
option to acquire shares of the Company's common stock, $.001 par value per
share ("Common Stock"); and
WHEREAS the Employee desires to accept such option subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Employee, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, intending to be legally bound, hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Employee a
non-qualified stock option (the "Option") to purchase all (or any part of)
60,000 (sixty thousand) shares of Common Stock (the "Shares"), on the terms and
conditions hereinafter set forth. This Option is not intended to be treated as
an incentive stock option under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
2. Exercise Price. The exercise price (the "Exercise Price") for the
Shares covered by the Option shall be $10 1/8 (which was the closing price of
the Common Stock on the NASDAQ National Market on September 1, 1998).
3. Vesting Schedule. The Option shall vest and become exercisable by the
Employee cumulatively, in accordance with the following schedule:
(a) for 25% of the shares of Common Stock subject to the Option upon the
first anniversary of Employee's commencement of employment with the Company;
(b) for 25% of the shares of Common Stock subject to the Option upon the
second anniversary of Employee's commencement of employment with the Company;
(c) for 25% of the shares of Common Stock subject to the Option upon the
third anniversary of Employee's commencement of employment with the Company; and
(d) for 25% of the shares of Common Stock subject to the Option upon the
fourth anniversary of Employee's commencement of employment with the Company.
4. Term of Option; Termination.
(a) Basic Term. The Option shall expire on, and not be exercisable
following, the tenth anniversary of the date hereof; provided, that the Option
is subject to earlier termination as provided in Section 4(b) and Section 4(c).
(b) Termination of Employee. Upon the termination of the Employee's
employment relationship with the Company or a subsidiary thereof for any reason
(other than by reason of the death or disability of the Employee), the
Employee's right to exercise any previously unexercised portion of the Option
shall immediately terminate on the date of such termination of employment.
<PAGE>
(c) Death or Disability of Employee. In the event that the Employee dies
or is disabled while he is an employee of the Company or a subsidiary thereof,
the Option shall be exercisable only within the next 12 months immediately
succeeding such death or disability, and then only (a) in the case of death, by
the person or persons to whom the Employee's rights under the Option shall pass
by will or the laws of descent and distribution, and in the case of disability,
by the Employee or his legal representative, and (b) if and to the extent that
the Employee was entitled to exercise the Option at the date of his death or
disability. The unvested portion of the Option shall terminate immediately upon
the date of such death or disability.
5. Transferability.
(a) The Option shall not be transferred or otherwise assigned in any
manner otherwise than by will, by the laws of descent and distribution, or
pursuant to a qualified domestic relations order ("QDRO") as defined by the
Internal Revenue Code of 1986, as amended, or Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules thereunder. During the
Employee's lifetime, the Option shall be exercised only by the Employee, the
Employee's guardian or legal representative, or the Employee's transferee
pursuant to a QDRO. The terms of this Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of Employee. Any purported
transfer of the Option or this Agreement contrary to the provisions of this
Section 5 shall be null and void ab initio.
(b) By acceptance of this Option and execution of this Agreement, the
Employee hereby agrees, on his own behalf and on behalf of his heirs, executors,
administrators and assigns that, in connection with any underwritten public
offering of shares of Common Stock, the Employee and the Employee's heirs,
executors, administrators and assigns will enter into such restrictions on the
sale or transfer of the shares of Common Stock issuable upon exercise of this
Option as the Company and any underwriter(s) for such offering may reasonably
request in order to facilitate the offer, sale and distribution of securities of
the Company in connection with such offering, whether or not this Option has
been exercised at the time of such offering.
6. Method of Exercising Option; Full Payment. Subject to the terms of
Section 4(b) and Section 4(c) hereof, the Option granted hereby may be exercised
only if the Employee was, at all times during the period beginning on the date
hereof and ending on the date of such exercise, an employee of the Company or a
subsidiary. The Option shall be exercised by written notice to the Company,
addressed to the Company at its principal place of business. Such notice shall
state the Employee's election to exercise the Option and the number of shares of
Common Stock in respect of which it is then being exercised, and shall be signed
by the Employee. Such notice shall be accompanied by (a) this Agreement (which,
if not then being exercised by the Employee for all the shares of Common Stock
then remaining subject to the Option granted hereby, shall be appropriately
endorsed and returned to the Employee); (b) payment of the full purchase price
of such shares, which payment shall be by wire transfer, certified or bank check
or in stock of the Company that has been owned by the Employee for at least six
months, or as agreed to by the Board (as defined), other consideration; and such
written representations and other documents, including legal opinions, as may be
desirable, in the opinion of the Company's legal counsel, for purposes of
compliance with state or Federal securities or other laws. In the case of
payment made in stock of the Company, the stock shall be valued at its Fair
Market Value (as hereinafter defined) on the last business day prior to the date
of exercise. The term "Fair Market Value" for the Common Stock on any particular
date shall mean the last reported sale price of the Common Stock on the
principal market on which the Common Stock trades on such date or, if no trades
of Common Stock are made or reported on such date, then on the next preceding
date on which the Common Stock traded. The Company shall deliver a certificate
or certificates representing shares of Common Stock purchased pursuant to such
notice to the Employee as soon as practicable after receipt of such notice,
subject to Section 10 hereof.
7. Capital Adjustments. If any change is made in the shares of Common
Stock subject to the Option (through merger, consolidation, reorganization,
recapitalization, stock dividend, split-up, combination of shares, exchange of
shares, issuance of rights to subscribe, or change in capital structure),
appropriate adjustments shall be made by either the Committee (as defined) or
the Board as to the maximum number of shares subject to the Option and the
number of shares and price per share subject to the Option as shall be equitable
to prevent dilution or enlargement of
2
<PAGE>
option rights of the Employee. Any determination made by either the Committee or
the Board under this Section 7 shall be final, binding and conclusive upon the
Employee.
8. Administration; Interpretation. The Option and this Agreement shall be
administered by any of the Compensation and Stock Option Committee of the
Company (the "Committee") or the Board of Directors of the Company (the
"Board"). The interpretation and construction by the Committee or the Board of
the provisions of the Option granted hereunder and of this Agreement shall be
final, unless in the case of the Committee otherwise determined by the Board. No
member of the Board or of the Committee shall be liable for an action taken or
determination made in good faith.
9. Rights as a Shareholder. The Employee shall have no rights as a
shareholder with respect to shares of Common Stock subject to the Option granted
hereby until the date of the issuance to Employee of a stock certificate in
respect of such shares. No adjustment shall be made for dividends or other
rights for which the record date is prior to the date such stock certificate is
issued.
10. Legal Requirements, Etc.
(a) Revenue Stamps. The Company shall be responsible and shall pay for any
transfer, revenue, or documentary stamps with respect to shares of Common Stock
issued upon the exercise of the Option.
(b) Legal Requirements. The Company shall not be required to issue
certificates for shares upon the exercise of the Option unless and until, in the
opinion of the Company's legal counsel, such issuance would not result in a
violation of any state or Federal securities or other law. As a condition to the
exercise of the Option, the Company may require Employee to make any
representation or warranty to the Company as may be required by applicable
securities laws or any other law or governmental regulation. Certificates for
shares, when issued, shall have, if required in the opinion of the Company's
legal counsel, the following legend, or statements of other restrictions,
endorsed thereon, and may not immediately be transferable:
" The shares of Common Stock evidenced by this certificate have been
issued to the registered owner in reliance upon written representations
that these shares have been purchased for investment. These shares may not
be sold, transferred, or assigned unless, in the opinion of the Company
and its legal counsel, such sale, transfer, or assignment will not be in
violation of the Securities Act of 1933, as amended, applicable rules and
regulations of the Securities and Exchange Commission and any applicable
state securities laws."
11. Private Offering. By the act of accepting this Option and executing
this Agreement, in the absence of an effective registration statement under the
Securities Act of 1933, as amended, the Employee hereby agrees that upon
exercise of such Option, he will acquire the shares of Common Stock that are the
subject thereof for the purposes of investment only, and not with any intention
at such time to resell or redistribute the same, and Employee hereby agrees that
he shall upon request of the Company confirm such agreement at the time of
exercise in a writing reasonably satisfactory to the Company and its counsel;
provided, however, that the neglect or failure to confirm the same in writing
shall in no way be construed or interpreted to be a limitation of such
agreement.
12. Right of the Company to Terminate Relationship. Nothing contained in
this Agreement shall confer upon the Employee any right to be continued as an
employee of the Company or any subsidiary thereof, or interfere in any way with
the right of the Company or any subsidiary thereof to terminate such
relationship for any reason whatsoever, with or without cause, at any time.
13. No Obligation to Exercise. The granting of the Option hereunder shall
impose no obligation upon the Employee to exercise such Option.
14. Tax Requirements. The exercise or surrender of this Option shall
constitute the Employee's full and complete consent to whatever action the
Committee or the Board elect to satisfy the Federal and state withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise.
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<PAGE>
15. Governing Law. This Agreement and the Option granted hereby shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York from time to time in effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute a duplicate original, and all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed,
by its officer thereunto duly authorized, and the Employee has executed this
Agreement, all as of the day and year first written above.
IMCLONE SYSTEMS INCORPORATED EMPLOYEE
By: /S/ John B. Landes /S/ Ron Martell
-------------------------- ----------------------
John B. Landes (Sign name)
General Counsel
______________________________
Ron Martell
Address:
______________________________
______________________________
______________________________
Telecopier Number:
______________________________
Social Security Number:
______________________________
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