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EXHIBIT 99.7
IMCLONE SYSTEMS INCORPORATED
1996 NON-QUALIFIED STOCK OPTION PLAN, AS AMENDED(1)
ARTICLE 1
PURPOSE OF PLAN
SECTION 1.01. General Purpose. The purpose of this Non-Qualified Stock
Option Plan (the "PLAN") is to promote the interests of ImClone Systems
Incorporated (the "COMPANY") by affording consultants, advisors, directors and
employees an opportunity to acquire a proprietary interest in the Company
pursuant to stock options issued by the Company, and thus to create in such
persons increased personal interest in its continued success.
SECTION 1.02. Statutory Stock Option. Options granted under the Plan are
intended to be "non-qualified" stock options under the Internal Revenue Code of
1986, as amended (the "CODE").
ARTICLE 2
SHARES SUBJECT TO PLAN
SECTION 2.01. Description of Shares. Subject to Article VIII hereof, the
stock to which the Plan applies is shares of the Company's common stock, $.001
par value ("COMMON STOCK"), either authorized but unissued or Treasury shares.
The number of shares of Common Stock to be issued or sold pursuant to options
granted hereunder shall not exceed 5,500,000 shares; provided, that such number
shall be reduced by the number of shares which have been sold under, or may be
sold pursuant to options granted from time to time under, the Company's 1996
Incentive Stock Option Plan (the "INCENTIVE STOCK OPTION PLAN") to the same
extent as if such sales had been made or options had been granted pursuant to
this Plan.
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(1) This plan was adopted by the Board on February 25, 1996 and approved by
the stockholders on June 3, 1996; it was amended by the Board on April 3, 1997
and such amendments were ratified by the stockholders on June 3, 1997; it was
amended by the Board on March 29, 1999 and such amendments were ratified by the
stockholders on May 24, 1999; it was amended by the Board on December 16, 1999;
it was amended by the Board on April 14, 2000 and ratified by the stockholders
on May 31, 2000.
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SECTION 2.02. Restoration of Unpurchased Shares. Any shares subject to an
option granted hereunder that, for any reason, expires or is terminated
unexercised as to such shares may again be subject to an option to be granted
hereunder.
ARTICLE 3
ADMINISTRATION; COMMITTEES; AMENDMENTS
SECTION 3.01. Administration. The Plan shall be administered by any of
the Compensation Committee, the Stock Option Committee (which is a subcommittee
of the Compensation Committee) (collectively, the "COMMITTEES") or the Board of
Directors of the Company (the "BOARD"). The Committees shall be comprised of
not less than two persons who shall be appointed by the Board from among the
members of the Board. Members of the Committees and the Board shall be eligible
to become participants under the Plans and may receive discretionary and
non-discretionary grants of options.
SECTION 3.02. Duration; Removal; Etc. The members of the Committees shall
serve at the pleasure of the Board, which shall have the power at all times to
remove members from the Committees or to add members thereto. Vacancies in the
Committees, however caused, shall be filled by action of the Board.
SECTION 3.03. Meetings; Actions of Committee. Each of the Committees may
select one of its members as its Chairman and shall hold its meetings at such
times and places as it may determine. All decisions or determinations of the
Committees and the Board shall be made by the majority vote or decision of all
of its members, whether present at a meeting or not; provided, however, that
any decision or determination reduced to writing and signed by all of the
members shall be as fully effective as if this had been made at a meeting duly
called and held. Each of the Committees and the Board may make such rules and
regulations for the conduct of its business not inconsistent herewith as it may
deem advisable.
SECTION 3.04. Interpretation. The interpretation and construction by any
of the Committees or the Board of the provisions of the Plan or of the options
granted hereunder shall be final, unless in the case of the Committees
otherwise determined by the Board. No member of the Board or of the Committees
shall be liable for an action taken or determination made in good faith.
SECTION 3.05. Amendments or Discontinuation. The Board may make such
amendments, changes, and additions to the Plan, or may discontinue and
terminate the Plan, as it may deem advisable from time to time; provided,
however, that no action shall affect or impair any options theretofore granted
under the Plan, and provided, further, however, that the affirmative vote of
the owners of a majority of the outstanding shares of Common Stock present at a
meeting in person or by proxy and entitled to vote shall be necessary to effect
any
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amendment to the Plan which would increase the number of shares of Common Stock
subject to options granted under the Plan.
ARTICLE 4
PARTICIPANTS; MAXIMUM GRANT; DURATION OF PLAN
SECTION 4.01. Eligibility and Participation. Options shall be granted
only to persons ("PARTICIPANTS") who at the time of granting are consultants,
advisors, directors or employees of the Company. Any of the Committees or the
Board shall determine the consultants, advisors, directors and employees to be
granted options hereunder, the number of shares of Common Stock subject to such
options, the exercise prices of options, the terms thereof and any other
provisions not inconsistent with the Plan.
SECTION 4.02. Guidelines for Participation. In selecting Participants and
determining the numbers of shares of Common Stock for which options are to be
granted, any of the Committees or the Board shall consult with officers and
directors of the Company, and shall take into account the duties of the
respective persons, their present and potential contributions to the success of
the Company, and such other factors as any of the Committees or the Board shall
deem relevant.
SECTION 4.03. Duration of Plan. All options under the Plan shall be
granted within ten years from the date the Plan is approved by the shareholders
of the Company.
ARTICLE 5
TERMS AND CONDITIONS OF OPTIONS
SECTION 5.01. Stock Option Agreements or Notices. All stock options
granted pursuant to the Plan shall be evidenced by stock option agreements or
notices ("STOCK OPTION AGREEMENTS"), which need not be identical, in such form
as any of the Committees or the Board shall from time to time approve, subject
to the terms of the Plan, which may, but need not, be executed or acknowledged
by a Participant.
SECTION 5.02. Number of Shares. Each Stock Option Agreement shall state
the total number of shares of Common Stock with respect to which the option is
granted, the terms and conditions of the option, and the exercise price or
prices thereof, it being understood that any of
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the Committees or the Board shall, subject to the terms of Article VII hereof,
have authority to prescribe in any Stock Option Agreement that the option
evidenced thereby may be exercisable in full or in part, as to any number of
shares subject thereto, at any time or from time to time during said term as
any of the Committees or the Board may determine; provided that no option
granted pursuant to the Plan shall be exercisable after the expiration of ten
years from the date such option is granted. Except as otherwise provided in any
Stock Option Agreement, an option may be exercised at any time or from time to
time during the term of the option as to any or all full (but no fractional)
shares which have become purchasable under such option. Subject to the terms of
Article VII hereof, any of the Committees or the Board shall have the right to
accelerate, in whole or in part, from time to time, conditionally or
unconditionally, the right to exercise any option granted hereunder.
SECTION 5.03. Option Price. Subject to the terms of Article VII hereof,
the price at which the shares of Common Stock subject to each option granted
under this Plan may be purchased (the "OPTION PRICE" or "EXERCISE PRICE") shall
be determined by any of the Committees or the Board, which shall have the
authority at the time the option is granted to prescribe in any Stock Option
Agreement that the price per share, with the passage of pre-determined periods
of time, shall increase from the original price to higher prices.
SECTION 5.04. Method of Exercising Option; Full Payment. Subject to the
terms of Article VII hereof and Section 6.01 and Section 6.02 hereof, options
granted pursuant to the Plan may be exercised only if the Participant was, at
all times during the period beginning on the date the option was granted and
ending on the date of such exercise, a consultant, advisor, director or
employee of the Company. Options shall be exercised by written notice to the
Company, addressed to the Company at its principal place of business. Such
notice shall state the Participant's election to exercise the option and the
number of shares of Common Stock in respect of which it is being exercised, and
shall be signed by the Participant so exercising the option. Such notice shall
be accompanied by payment of the full purchase price of such shares, which
payment shall be in cash, by check or in stock of the Company that has been
owned by the Participant for at least six months, or notes of the Company or,
as agreed to by the Board, other consideration; and such written
representations and other documents 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 purchaser as soon as
practicable after receipt of such notice, subject to Article IX hereof. Any of
the Committees or the Board may amend an
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already outstanding Stock Option Agreement to add a provision permitted by
clause (b) of this Section 5.4, and no such amendment, by itself, shall be
deemed to constitute the grant of a new option for purposes of this Plan.
SECTION 5.05. Rights as a Shareholder. No Participant shall have any
rights as a shareholder with respect to shares of Common Stock subject to an
option granted under the Plan until the date of the issuance to such
Participant 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.
SECTION 5.06. Other Provisions. Stock Option Agreements entered into
pursuant to the Plan may contain such other provisions (not inconsistent with
the Plan) as any of the Committees or the Board may deem necessary or
desirable, including, but not limited to, covenants on the part of the
Participant not to compete, not to sell Common Stock obtained from the exercise
of options for specified periods of time, and remedies available to the Company
in the event of the breach of any such covenant.
ARTICLE 6
TERMINATION; TRANSFERABILITY
SECTION 6.01. Termination of Employment. Except as otherwise provided in
connection with the grant of any option or the termination of any Participant,
in the event a Participant's employment or service with the Company is
terminated other than by reason of death or disability, the right to exercise
any unvested option or unvested portion of any option granted under the Plan
shall terminate on the date of termination of the relationship between the
Participant and the Company and the right to exercise any option or portion of
any option granted under the Plan which is vested as of the date of termination
of employment or service shall terminate upon the earlier of the thirtieth day
following such termination of employment or service or the date such option or
portion of an option would have expired had it not been for the termination of
employment or service. The option may not be exercised after its expiration in
accordance with the foregoing terms, and the shares of Common Stock subject to
the unexercised portion of such option may again be subject to new options
under the Plan. Such restrictions shall not apply to the options granted
pursuant to Article VII which shall be exercisable in accordance with the terms
thereof.
SECTION 6.02. Death or Disability of Participant. Except as otherwise
permitted in connection with the grant of any option or the death or disability
of a Participant, in the event a Participant dies or is disabled while he is a
consultant, advisor, director or employee of the Company, any options
theretofore granted to him shall be exercisable only within the next 12 months
immediately succeeding such death or disability and then only (a) in the case
of death,
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by the person or persons to whom the Participants rights under the option shall
pass by will or the laws of descent and distribution, and in the case of
disability, by such Participant or his legal representative, and (b) if and to
the extent that he was entitled to exercise the option at the date of his death
or disability. Such restrictions shall not apply to the options of
Participating Directors which shall be exercisable in accordance with the terms
set forth in Article VII hereof.
SECTION 6.03. Transferability. Options granted to a Participant under the
Plan shall not be transferable otherwise than by will, by the laws of descent
and distribution, (if authorized in the applicable Stock Option Agreement)
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 or
to a member of the immediate family of the Participant, within the meaning of
Rule 16a-1(e) of the Securities Exchange Act of 1934, as amended, a trust for
such family members, a partnership whose only partners are such family members
or a charitable institution within the meaning of Section 501(c)(3) of the Code
(each an "AUTHORIZED TRANSFEREE"). During the Participant's lifetime, options
shall be exercised only by such Participant, such Participant's guardian or
legal representative, or such Participant's Authorized Transferee.
ARTICLE 7
DIRECTORS' GRANTS
SECTION 7.01. Eligibility. Annually, on February 15 of each of the
Company's Fiscal Years, any Director of the Company who at the time is not a
full-time employee of the Company (a "PARTICIPATING DIRECTOR"), shall be
granted an option for 15,000 shares of Common Stock, except that the Chairman
who is not a full-time employee of the Company shall be granted an option for
30,000 shares of Common Stock. Each person who becomes a Participating Director
after the first day of the Company's fiscal year and within nine months of that
date shall be granted, on the date that person becomes a Participating
Director, an option for a number of shares of Common Stock determined by pro
rating the normal 15,000 share annual amount (or 30,000 if the Chairman) based
on the period of time remaining in the fiscal year in which such person becomes
a Participating Director. No person who owns 10% or more of the outstanding
Common Stock of the Company (including shares of Common Stock issuable upon
exercise of outstanding options and warrants), shall be granted options under
this Article. Options under this Article are non-discretionary.
SECTION 7.02. Options Terms. Options granted under this Article VII shall
not be exercisable until the date upon which the option holder has provided one
year of continuous service as a Participating Director following the date of
grant of such option. Options granted
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pursuant to this Article shall have an exercise price equal to the Fair Market
Value (as hereinafter defined) of the Common Stock on the date of the grant.
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. Notwithstanding any other provisions of this Plan, except
as set forth in Section 6.03, options granted under this Article shall remain
exercisable for ten years after the date of grant and the option holder (or his
legal representative or that of his estate) may continue to exercise an option
notwithstanding that the holder ceases to be a Participating Director.
SECTION 7.03. Other Provisions. In all other respects, Options granted
under this Article VII shall be subject to the other provisions of the Plan,
including but not limited to those governing method of exercise, exercise
payment, tax withholding, and transferability. Notwithstanding any other
provisions of this Plan, the provisions of this Article VII may not be amended
more than once every six months, other than to comport with changes in the
Code.
ARTICLE 8
CAPITAL ADJUSTMENTS
SECTION 8.01. Capital Adjustments. If any change is made in the shares of
Common Stock subject to the Plan or subject to any option granted under the
Plan (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 any of the Committees or the Board as to the maximum number of
shares subject to the Plan and the number of shares and price per share subject
to outstanding options as shall be equitable to prevent dilution or enlargement
of option rights. Any determination made by any of the Committees or the Board
under this Article VIII shall be final, binding and conclusive upon each
Participant.
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ARTICLE 9
LEGAL REQUIREMENTS, ETC
SECTION 9.01. Revenue Stamps. The Company shall be responsible and shall
pay for any transfer, revenue, or documentary stamps with respect to shares
issued upon the exercise of options granted under the Plan.
SECTION 9.02. Legal Requirements. The Company shall not be required to
issue certificates for shares upon the exercise of any 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. 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.
SECTION 9.03. Private Offering. The options to be granted under the Plan
are available only to a limited number of present and future key consultants,
advisors, directors and employees of the Company who have knowledge of the
Company's financial condition, management, and affairs. Such options are not
intended to provide additional capital for the Company, but are to encourage
stock ownership by the Company's key personnel. By the act of accepting an
option, in the absence of an effective registration statement under the
Securities Act of 1933, as amended, Participants shall agree that upon exercise
of such option, they will acquire the shares of Common Stock that are the
subject thereof for investment and not with any intention at such time to
resell or redistribute the same, and they shall confirm such agreement at the
time of exercise, but the neglect or failure to confirm the same in writing
shall not be a limitation of such agreement.
ARTICLE 10
GENERAL
SECTION 10.01. Application of Funds. The proceeds received by the Company
from the sale of shares of Common Stock pursuant to the exercise of options
therefor shall be used for general corporate purposes.
SECTION 10.02. Right of the Company to Terminate Relationship. Nothing
contained in the Plan or in a Stock Option Agreement shall confer upon any
Participant any right to be
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continued as a consultant, advisor, director or employee of the Company, or
interfere in any way with the right of the Company to terminate such
relationship for any reason whatsoever, with or without cause, at any time.
SECTION 10.03. No Obligation to Exercise. The granting of an option
hereunder shall impose no obligation upon the Participant to exercise such
option.
SECTION 10.04. Effectiveness of Plan. The Plan shall become effective
upon its adoption by the Board. Options may be granted under the Plan prior to
the approval of the Plan by the Shareholders, but no such option may be
exercised prior to such approval.
SECTION 10.05. Other Benefits. Participation in the Plan shall not
preclude a Participant from eligibility in any other stock benefit plan of the
Company or any old age benefit, insurance, pension, profit sharing, retirement,
bonus or other plan which the Company has adopted, or may, at any time, adopt.
SECTION 10.06. Tax Requirements. The exercise or surrender of any option
under this Plan shall constitute a Participant's full and complete consent to
whatever action any of the Committees 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.
SECTION 10.07. Interpretations and Adjustments. To the extent permitted
by Law, an interpretation of the Plan and a decision on any matter within any
of the Committees' or the Board's discretion made in good faith is binding on
all persons. A misstatement or other mistake of fact shall be corrected when it
becomes known, and the person responsible shall make such adjustment on account
thereof as he considers equitable and practicable.
SECTION 10.08. Information. The Company shall, upon request or as may be
specifically required hereunder, furnish or cause to be furnished, all of the
information or documentation which is necessary or required by any of the
Committees or the Board to perform its duties and functions under the Plan.
SECTION 10.09. Governing Law. The Plan and any and all options granted
thereunder 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.
SECTION 10.10. Certain Definitions.
(a) "PARENT". The term "parent" shall mean a "parent corporation" as defined
in Section 424(e) of the Code.
(b) "SUBSIDIARY". The term "subsidiary" shall mean a "subsidiary
corporation" as defined in Section 424(f) of the Code.
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(c) "DISABLED". The term "disabled" shall have the definition set forth in
Section 22(a)(3) of the Code.
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