EXHIBIT 10.48
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and
entered into by and between Xxxxxx Xxxxxx (the "Former Executive")
and Amgen Inc., a Delaware corporation (the "Company").
W I T N E S S E T H
WHEREAS, Former Executive has resigned from his position as
Senior Vice President, Research, and from any and all other positions
he held with the Company or its affiliates effective as of October
31, 1996 (the "Termination Date");
WHEREAS, the Company wishes to retain Former Executive's
services as a consultant for a period of twenty-one (21) months
commencing on the Termination Date and concluding on July 31, 1998;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, it is hereby agreed by and between the
parties hereto as follows:
SUMMARY OF TERMS
1. Consulting Service. Under the general direction of
the Company's Chief Executive Officer, Chief Operating Officer, or
Sr. Vice President of Research, Former Executive shall provide
consulting services to the Company in any area of his expertise or
with regard to any matters in which he was involved while employed by
the Company. These services will include scientific advice in the
areas of new product discovery, in-license opportunities, research
strategy, etc. Such services shall be provided at such times,
locations, and by such means as reasonably required by the Company.
The Company also shall, to the extent consistent with the Company's
best interests, schedule Former Executive's services so as not to
interfere with Former Executive's other commitments. Requests by the
Company for Former Executive's Services shall not exceed, without
Former Executive's consent, which shall not be unreasonably withheld,
two (2) days per week or nine (9) days per month. Former Executive
shall be compensated for all services to be provided as specifically
set forth herein.
2. Consulting Period. Former Executive shall serve as a
consultant to the Company under the terms specified herein commencing
on the Termination Date and terminating on July 31, 1998 (the
"Consulting Period"). Former Executive's sole compensation and
benefits during the Consulting Period shall be as specified in this
Agreement.
3. Consideration for Consulting Services.
(a) Consulting Fee. The Company agrees to pay Former
Executive the sum of Three Thousand Four Hundred Thirty-eight Dollars
($3,438.00) for each eight hour day of consulting services provided
by Former Executive hereunder.
1
(b) Stock Option Vesting. Although Former
Executive's employment will have terminated effective as of the
Termination Date, Amgen will consider Former Executive a consultant
through and including July 31, 1998, for purposes of vesting and
extending the date through which Former Executive may exercise the
below-listed Stock Options (hereinafter referred to as the "Extended
Stock Options"). Therefore, except as provided below, Former
Executive will have until October 31, 1998 to exercise the Extended
Stock Options, unless they expire sooner. All other Amgen Stock
Options held by the Former Executive that may have vested prior to
Former Executive's Termination Date must also be exercised within the
same three (3) months after the termination of this Agreement or
their expiration date, whichever is sooner. Former Executive will
not be entitled to any reload rights in connection with either the
Extended Stock Options or any other Amgen Stock Options that may have
vested prior to Former Executive's Termination Date. Nothing herein
shall be deemed to have altered or extended the expiration date of
either the Extended Stock Options or any Amgen Stock Option granted
to Former Executive. In addition, all Amgen Stock Options, including
the Extended Stock Options, exercised more than three (3) months
after Former Executive's Termination Date will no longer qualify as
Incentive Stock Options. Former Executive will be required to pay
all withholding taxes required by law with respect to the exercise of
all Amgen Stock Options including the Extended Stock Options.
No. of Option Grant No. Date of Vesting
Shares
3,200 884633 June 22, 1997
316 910684 September 1, 1997
3,434 910685 September 1, 1997
2 914247 July 1, 1997
5,188 914248 July 1, 1997
1,034 914268 July 1, 1997
9,200 918034 July 1, 1997
10,000 921197 July 3, 1997
5,190 914247 July 1, 1998
384 914267 July 1, 1998
650 914268 July 1, 1998
9,200 918034 July 1, 1998
10,000 921197 July 3, 1998
(c) Health Coverage. Should Former Executive and/or
Former Executive's eligible dependents elect to continue coverage
under Amgen's group health plan(s) under the Consolidated Omnibus
Budget Reconciliation Act ("COBRA") continuation rights, and Former
Executive and/or Former Executive's eligible dependents timely submit
to Amgen the documents necessary to initiate such coverage, then
Amgen will pay the cost of COBRA coverage for Former Executive and/or
Former Executive's eligible dependents until the earlier of April 30,
1998, or until Former Executive and/or Former Executive's eligible
dependents no longer qualify for COBRA continuation rights or, in the
case of Former Executive's dependents, the date on which such
dependents cease to be eligible dependents under Amgen's group health
insurance plan(s), which
2
ever shall first occur. If Former Executive and/or Former
Executive's eligible dependents qualify for COBRA benefits as of
April 30, 1998, then Former Executive and/or Former Executive's
eligible dependents will have the option of continuing coverage under
Amgen's group health plan(s), under COBRA and at Former Executive's
own expense, for the remainder of the period for which Former
Executive is entitled to receive COBRA benefits, generally no more
than eighteen (18) months from the date of the termination of Former
Executive's employment, provided that Former Executive and/or Former
Executive's eligible dependents meet the qualification requirements
under COBRA and under Amgen's group health plan(s). For a complete
description of the rights and responsibilities of Former Executive
and Former Executive's eligible dependents under COBRA, Former
Executive must refer to the COBRA documents that will be sent to
Former Executive by the Company after Former Executive's employment
terminates.
(d) Financial Advice. Company agrees to reimburse
Former Executive for financial, tax and estate planning assistance
incurred during 1996 in a sum not to exceed Three Thousand Dollars
($3,000.00). Former Executive agrees to provide Company invoices
covering the cost of such assistance upon which Company's payment
will be made.
(e) Expenses. Former Executive shall incur no
expenses on behalf of the Company without the Company's prior written
approval. The Company will reimburse Former Executive, pursuant to
Company policy and regular business practice, for all reasonable
business expenses he incurs during the Consulting Period in
furtherance of his obligations hereunder upon prior written approval
by the Company. For purposes of this subparagraph, "reasonable
business expense" shall include, without limitation, travel,
telephone, hotel and meal expenses.
(f) Management Incentive Plan. Except as provided in
this paragraph, all other benefits provided by the Company
(including, but not limited to participant elected contributions,
matching payments, profit sharing contributions, and other Amgen
contributions made under the Amgen Retirement and Savings Plan, and
all stock purchase plan rights, and life and disability insurance)
will cease as of the Termination Date. Company and Former Executive
acknowledge that Former Executive will be entitled to receive a bonus
under the Company's Management Incentive Plan (the "MIP") for the
calendar year ending December 31, 1996, which MIP bonus shall be
prorated based upon the Company's 1996 results through September 30,
1996, and which MIP bonus shall be paid to Former Executive on the
same date in early 1997 as such MIP bonuses are paid to current
members of Amgen's management. Former Executive also acknowledges
and agrees that Former Executive will not be entitled to participate
in any MIP benefits after 1996. Former Executive agrees that the
Former Executive is not entitled to receive, will not claim and
expressly waives any entitlement to rights, benefits or compensation
other than as expressly set forth in this Agreement.
3
(g) Reimbursement. Former Executive will submit
written detailed invoices on a regular basis covering his retained
time (nine days per month) plus any additional days in excess of the
nine days and all expense incurred under this Consulting Agreement
for reimbursement by Company. Such invoices are to be submitted to
Xxxxxx Xxxxxxx, Vice President, Human Resources. Former Executive
shall incur no expenses on behalf of the Company without the
Company's prior written approval. The Company will reimburse Former
Executive pursuant to Company policy and regular business practice,
for all reasonable business expenses he incurs during the period
covered by this Agreement in furtherance of his obligations hereunder
upon prior written approval by the Company. For purposes of this
subparagraph, "reasonable business expenses" shall include, without
limitation, travel, telephone, hotel and meal expenses.
4. Independent Contractor. Former Executive shall have
no responsibilities as a consultant to the Company other than as
provided for herein and shall not represent or purport to represent
the Company in any manner whatsoever to any third party. Former
Executive is being engaged by Amgen as an independent contractor and
not an employee and Former Executive will be solely responsible for
making appropriate filings and payments to the Internal Revenue
Service and state taxing authorities, including payments of all taxes
due on compensation received under this Agreement.
5. Inventions. Former Executive hereby assigns to the
Company his entire right, title and interest in and to all Inventions
(and all proprietary rights with respect thereto) whether or not
patentable or registrable under copyright or similar statutes, made
or conceived of or reduced to practice or learned by Former
Executive, either alone or jointly with others, during the term of
the Consulting Period in the course of or as a result of performing
consulting services hereunder. Former Executive agrees that all such
inventions are the sole property of the Company.
6. Noncompetition. Former Executive hereby agrees that
during the Consulting Period he will not, without first obtaining the
Company's prior written approval, directly or indirectly engage or
prepare to engage in any activities in competition with the Company
or accept employment or establish a business relationship or accept a
position on a Board of Directors with any company. For purposes of
this paragraph, the holding of less than one percent (1%) of the
outstanding voting securities of any firm or business organization in
competition with the Company shall not constitute activities or
services precluded by this Agreement.
7. Termination. This Agreement may be terminated by
either party by 30 days advance written notice. In the event that
this Agreement is terminated prior to July 31, 1998, then only those
extended stock options which have already vested by the date this
Agreement terminates shall vest. In addition, in the event the
Agreement terminates prior to July 31, 1998, then Former Executive
4
shall have until three months from the date this Agreement terminates
or the expiration date of the options, whichever is sooner, to
exercise any options that have vested prior to the date this
Agreement terminates.
8. Proprietary Information Obligations. Former Executive
hereby acknowledges his responsibilities under the terms of that
certain Proprietary Information and Inventions Agreement between the
Company and Former Executive, dated February 26, 1982 (the
"Proprietary Information Agreement"), attached hereto as Exhibit A,
and Former Executive agrees to continue to be bound by all of the
terms and conditions thereof.
9. Nonsolicitation of Employees. Former Executive agrees
not to entice, induce or encourage any of the Company's employees to
engage in any activity which, were it done by Former Executive, would
violate any provision of the Proprietary Information Agreement.
Former Executive further agrees that for a period of two years
following the end of the term of this Agreement, he will not directly
or indirectly solicit, entice, induce or encourage employees of the
Company to leave the Company to accept other employment or to provide
services to Former Executive or any other person or entity.
10. No Other Authority. Former Executive shall have no
responsibilities or duties to the Company other than as provided for
above and shall not represent or purport to represent the Company in
any manner whatsoever to any third party, unless required to do so
pursuant to this Agreement or by specific written authorization of
the Company's Chief Executive Officer or Chief Operating Officer.
11. Entire Agreement. This Agreement, including the
Exhibits attached hereto, represents the final, complete, and
exclusive embodiment of the entire agreement and understanding
between the Company and Former Executive concerning Former
Executive's consulting services to the Company, and supersedes and
replaces any and all prior agreements and understandings concerning
Former Executive's relationship with the Company and his compensation
by the Company. It is expressly understood that there is no
agreement or understanding between the parties about or pertaining to
Former Executive's employment with or Retirement from the Company or
any matter addressed in this Agreement except what is set forth in
this Agreement (including the Exhibits hereto). This Agreement may
only be amended in a writing signed by Former Executive and the Chief
Executive Officer of the Company.
12. Severability. If any provision of this Agreement is
determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement.
13. Notices. All notices required or permitted to be
given under this Agreement must be in writing and may be given by any
method of delivery which provides evidence or confirmation of receipt
including but not limited to personal delivery, express courier (such
5
as Federal Express) and prepaid certified or registered mail with
return receipt requested. Notices shall be deemed to have been given
and received on the date of actual receipt or, if either of the
following dates is applicable and is earlier, then on such earlier
date: one (1) business day after sending, if sent by or express
courier; or three (3) business days after deposit in the U.S. mail,
if sent by certified or registered mail. Notices shall be given
and/or addressed to the respective parties at the following
addresses:
To the Company: Amgen Inc.
Attn.: General Counsel
Amgen Center
0000 XxXxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
To Former Executive: Xxxxxx Xxxxxx
000 Xxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Any party may change its address for the purpose of this paragraph by
giving written notice of such change to the other party in the manner
herein provided.
14. Applicable Law. This Agreement shall be construed
according to the laws of the State of California as applied to
contracts entered into within such state by residents thereof.
15. Binding Effect. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto; notwithstanding the foregoing,
Former Executive shall not delegate any of his duties hereunder.
16. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, all of which
together shall constitute one and the same instrument.
6
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the respective dates written below.
CONSULTANT:
/s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx
Date: November 15, 1996
AMGEN INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
Chairman of the Board and CEO
Date: November 12, 1996
7
