EXHIBIT 10.24
October 11 , 1999
Dr. N. Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Re: Agreement Regarding Part-Time Special Assignment Position
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Dear Xxxxx:
On behalf of Amgen Inc. ("Amgen"), I am pleased to confirm in this letter
agreement (the "Agreement") the terms and conditions under which you will
continue to be employed by Amgen from and after the date upon which you cease to
serve as Amgen's Senior Vice President of Development, which we currently
contemplate will occur on October 20, 1999 (the "Effective Date"). You will
remain in your current position and receive all compensation and benefits of
that position between now and the Effective Date. This Agreement also provides
for the termination of your employment with Amgen on or before October 19, 2002,
as set forth below.
1. POSITION AND DUTIES
-------------------
On the Effective Date, you will cease to be a regular full-time employee of
Amgen and will resign from all offices you hold in Amgen and its
subsidiaries, but you will continue to be employed by Amgen as an employee
in a part-time special assignment position, at grade level 37, with the
title of Special Advisor, Development (in connection with resigning your
offices, you agree to execute and return to Amgen with this Agreement a
signed original resignation letter (the "Resignation Letter") on your Amgen
letterhead in the form provided in Appendix A to this Agreement. Appendix
A is hereby incorporated into and made part of the Agreement by reference).
As Special Advisor, Development, it is anticipated that you will work with
Xxxxxx Xxxxxxx on Amgen's Product Development efforts. As we have
discussed, Xxxxxx would like you to assist him in monitoring regulatory
developments in the Pharmaceutical industry as they relate to Amgen's
current products, products which Amgen is in the process of developing and
potential future products, including those which Amgen may acquire by
corporate or other acquisitions. You will provide to Xxxxxx from time to
time, upon his reasonable request, written or oral reports and/or copies of
other written materials with regard to the foregoing.
Also as we have discussed, the position of Special Advisor, Development is
a part-time special assignment position in which you will be expected to
work a minimum of ten (10) hours per month and no more than twenty (20)
hours per month. The times and places where this work will be performed
will be at your choosing. You will maintain a log showing the time you
have spent performing the foregoing services and this log shall be deemed
conclusive evidence of the time spent.
We have agreed that your part-time special assignment will continue until
October 19, 2002, subject to extension as you and Amgen may agree in
writing or to earlier termination by you or Amgen as set forth in Paragraph
8 of this Agreement. As long as you are employed by Amgen, you will
continue to be subject to Amgen's policies and procedures, including but
not limited to those relating to the non-disclosure of proprietary and
confidential information and you will continue to be subject to the Amgen
Inc. Proprietary Information and Inventions Agreement, executed by you on
or about January 15, 1982 (the "Proprietary Agreement") (which also
contains obligations that survive the termination of your employment with
Amgen).
2. COMPENSATION AND BENEFITS
-------------------------
Following is a brief description of the compensation and benefits you will
receive under this Agreement during your part-time special assignment. The
terms and conditions of all of your benefits are subject to the terms and
conditions of each of the applicable plans, policies or arrangements, as
they may be amended or terminated by Amgen from time to time.
2.1 Compensation: Your compensation will be $72,250 per month, subject to
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applicable income tax and employment tax withholding requirements. In
addition, Amgen will reimburse you for any reasonable business
expenses you incur in performing your duties, subject to Amgen's
standard employee expense reimbursement policies.
2.2 Administrative Support: Amgen will provide you with an office and
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secretarial assistance at our Thousand Oaks headquarters. You will
also have access to the services of Amgen's travel department.
2.3 Management Incentive Plan: You will not be eligible to participate in
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Amgen's Management Incentive Plan (the "MIP") for the calendar year
1999 or for any year after 1999.
2.4 Special Bonus for 1999 Calendar Year: As part of the transition to
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the part-time special assignment position, you will be entitled to a
special bonus in the amount that is the greater of: (1) the MIP
payment that you would have received for the calendar year 1999 based
on what would have been your MIP rating for the 1999 calendar year, if
you had been eligible for that MIP payment and if you had been deemed
to have been a regular full-time employee for the entire year for
purposes of the MIP or (2) the MIP payment you received for the 1998
calendar year. This special bonus will be paid to you at the same
time that MIP distributions are made to participants in the MIP in
2000.
2.5 Employee Stock Purchase Plan: You will be eligible to continue to
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participate in Amgen's Employee Stock Purchase Plan (the "ESPP") until
the end of the current purchase period (March 31, 2000). However, due
to the fact that you will be working less than twenty (20) hours per
week, you will not be eligible to participate in the ESPP after the
current purchase period.
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2.6 Supplemental Retirement Plan: You will be eligible to participate in
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Amgen's Supplemental Retirement Plan (the "SRP") if you continue to
meet the eligibility requirements of the SRP. Notwithstanding the
foregoing, Amgen acknowledges and agrees that your inability to
participate in the Amgen Retirement and Savings Plan (the "401(k)
Plan") shall not make you ineligible to participate in the SRP.
2.7 Retirement and Savings Plan: Pursuant to Section 3.3 of the 401(k)
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Plan, employees that are eligible to participate in the 401(k) Plan
are those that are classified as "regular full-time" or "regular part-
time" employees. By signing below, you expressly acknowledge and
agree that Amgen is not classifying you as a regular full-time or
regular part-time employee and therefore, as of the Effective Date,
you will not be eligible to make contributions or to have
contributions made on your behalf to the 401(k) Plan. This letter
qualifies as an agreement pursuant to Section 3.3(c)(2) of the 401(k)
Plan. You will, however, be able to maintain your 401(k) account in
the Amgen plan to the extent allowed by law.
2.8 Change of Control Severance Plan: You will continue to be eligible to
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participate in the Amgen Inc. Change of Control Severance Plan (the
"CIC Plan"). However, on the Effective Date you will cease to be a
Group I Participant and will become a Group II Participant in the CIC
Plan by virtue of your ceasing to be a member of Amgen's Operating
Committee. Notwithstanding the foregoing, in the event that the
aggregate benefits provided for in this Agreement are greater than
those provided in the CIC Plan upon a termination of employment for
which you would be eligible to receive benefits under the terms and
conditions of the CIC Plan, this Agreement, rather than the CIC Plan
shall govern and control your rights upon a termination of employment;
provided, that, in such event, and if applicable, you shall also
receive the 280G tax gross-up benefit provided in Section 4.1(G) of
the CIC Plan.
2.9 Stock Options:
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2.9.1 No New Grants: As an employee in a part-time special
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assignment position, you will not be eligible to receive
additional stock option grants after the Effective Date.
2.9.2 Accelerated Vesting: Amgen shall take the necessary action to
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accelerate the vesting of the following options from previous
grants (and no others, unless an acceleration takes place
pursuant to Paragraph 8 of this Agreement) so that the
following options will be immediately and fully vested as of
the Effective Date (provided that the Agreement shall be
effective as provided in Subparagraph 1.2(e) of Appendix B to
this Agreement by October 20, 1999) to the extent that they
have not previously vested:
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No. of Option Shares Grant No. Originally Scheduled
------------------------ --------- --------------------
Expiration Date
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3,052 933511 7/1/03
1,642 945177 7/1/04
18,948 938853 7/1/03
8,013 945178 7/1/03
6,372 945178 7/1/04
Amgen shall provide you with a copy of the resolutions taking
the action described in this Subparagraph 2.9.2.
2.9.3 Vesting During Special Assignment: To the extent that you
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continue in your part-time special assignment, you will be
eligible to continue to vest in all unvested options that have
previously been granted to you by Amgen on the dates and in the
manner provided in your stock option grant agreements and
applicable stock option plans, except as provided in
Subparagraph 2.9.2. No stock options will vest following the
Termination Date as defined in Paragraph 8 of this Agreement.
2.9.4 Cooperation To Restructure: As we have discussed, it is our
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intention that your ability to continue to vest in and exercise
options while in your part-time special assignment position
will not result in any additional compensation charges to Amgen
in accordance with U.S. generally accepted accounting
principles. Accordingly, if at any time Amgen determines that
it is reasonably likely that Amgen will incur a compensation
charge as a result of your vesting or exercising options in
your part-time special assignment position then you agree that
you will use your reasonable best efforts to cooperate with
Amgen to restructure this Agreement and your position as Amgen
reasonably determines is necessary for you to continue to be
able to vest and exercise your options without creating a
compensation charge to Amgen in accordance with U.S. generally
accepted accounting principles and without causing you to lose
any of the benefits of this Agreement. However, if no such
accommodation is possible without materially affecting your
rights hereunder, your rights as set forth herein shall not be
modified or altered in any fashion which would have any adverse
effect on you.
2.9.5 No Amendment to Stock Option Grant Agreements or Stock Option
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Plans: Nothing in this Agreement shall be deemed to alter,
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amend, or otherwise modify the terms of your stock option grant
agreements or the terms of the applicable stock option plans.
2.10 Medical, Dental, and Vision Insurance and COBRA: Your medical,
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dental, and vision insurance coverage will terminate on the Effective
Date. If after the Effective Date, you or your eligible dependents
should elect to continue coverage under
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Amgen's group health plan(s) under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") continuation rights, and you or your
eligible dependents timely take the required steps to initiate such
coverage, then Amgen will pay the cost of COBRA coverage for you and
your eligible dependents until the earlier of April 19, 2001, or until
you and/or your eligible dependents no longer qualify for COBRA
continuation rights or, in the case of your dependents, the date on
which such dependents cease to be eligible dependents under Amgen's
group health plan(s), whichever occurs first. If you and/or your
eligible dependents qualify for COBRA benefits on or after April 19,
2001, then you and/or your eligible dependents will have the option of
continuing coverage under Amgen's group health plan(s), under COBRA
and at Amgen's expense until October 19, 2002 and at your own expense
thereafter. If you obtain health insurance coverage for you and/or
your COBRA eligible dependents for the period between April 19, 2001
and the Termination Date as defined in Paragraph 8 of this Agreement,
then Amgen will reimburse you for the full cost of such insurance
premiums. To receive reimbursement, submit copies of the health
insurance premium invoices and other applicable information on a
monthly basis to Amgen. For a complete description of the rights and
responsibilities you and your eligible dependents have under COBRA,
you must refer to the COBRA documents that will be sent to you by
Amgen or its designee under separate cover.
2.11 Basic Life Insurance: Your Basic Life Insurance coverage will
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terminate on the Effective Date. If you are interested in converting
this insurance to an individual policy, please contact Xxxx Xxxxx at
Aetna (000) 000-0000 within thirty (30) days after the Effective Date.
2.12 Long-Term Disability Insurance: Your Long-Term Disability Plan
------------------------------
coverage will terminate on the Effective Date and there is no
conversion policy or plan available for this coverage.
2.13 Other Benefits: As an employee in a part-time special assignment
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position, you will not be eligible to participate in the following
Amgen benefit plans and programs as well as any other benefits not
specifically listed in this letter: Dependent Care Assistance
Program; Medical Flexible Spending Account; Voluntary and Dependent
Life Insurance Coverage; Accidental Death and Dismemberment benefit;
use of Amgen Fitness Center facilities; use of Amgen Child Care Center
facilities; personal illness; vacation/optional holiday pay; family
illness/personal time; bereavement leave or holidays. Your accrued
and unused vacation hours and optional holiday pay will be paid to you
on the next regularly scheduled payroll date following the Effective
Date.
3. TRANSFER OF COMPANY PROPERTY
------------------------------
Except as provided in the remainder of this Subparagraph, you promise that
on or before the Termination Date, as defined in Paragraph 8 of this
Agreement, you will return to Amgen all files, memoranda, documents,
records, copies of the foregoing, credit cards, keys, and
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any other Amgen property in your possession or under your control. As an
employee in a part-time special assignment position, you will continue to
have access to and use of those two telecopier machines and two laptop
computers that Amgen previously provided to you. As of the termination of
your employment with Amgen, you will be entitled to retain the equipment
referenced in the preceding sentence provided that you take the steps
necessary to ensure that all of Amgen's proprietary information is deleted
from the two laptop computers by Amgen's computer services department as of
the Termination Date as defined in Paragraph 8 of this Agreement.
4. OFFICERS AND DIRECTORS INSURANCE
--------------------------------
During your part-time special assignment and for four (4) years following
the Termination Date, you will be covered by such officers and directors
insurance coverage that Amgen provides to its senior executive officers at
your salary grade level during that time period. In addition, Amgen shall
indemnify and hold you harmless both during and after the entire term of
your employment (including your service hereunder) to the fullest extent
permitted by law with regards to actions or inactions in relation to your
duties performed at Amgen, both before and after the date of this
Agreement. Furthermore, you will be entitled to reimbursement of expenses
incurred in accordance with your rights under California Labor Code Section
2802.
5. LEGAL FEE AND FINANCIAL/TAX CONSULTING REIMBURSEMENT
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Amgen will reimburse you for the legal expenses reasonably incurred by you
in connection with the review of this Agreement up to a maximum amount of
$20,000. Amgen will also reimburse you for financial and/or tax counseling
expenses that you reasonably incur, up to a maximum amount of $3,000 per
year, for each year of this Agreement.
6. REFERENCE
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Amgen will provide you with a positive written factual reference. I should
be listed as your work reference. You agree to confer with me on the form
and nature of the reference to be provided to prospective employers and
other third parties concerning the work that you have performed at Amgen.
If, by sixty (60) days after the Effective Date, you are unable to reach
agreement with me on the written reference to be provided, then Amgen's
only obligation will be to respond to inquiries by confirming to
prospective employers or other third parties the dates of your employment
at Amgen and the last position you held as an Amgen employee.
7. RELOCATION
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If you decide to relocate outside of the fifty (50) mile radius of your
Residence (as defined below) during the period of your part-time special
assignment or immediately at the termination thereof for any reason other
than for a Stated Reason, as defined below, and sell your current, local,
primary residence located in North Ranch, California (the "Residence")
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so that the sale escrow closes no later than October 19, 2002, then Amgen
will provide you with the following:
7.1 If your new employer, if any, provides for part of the following
expenses, then Amgen would pay normal and customary amounts beyond
those which such new employer paid, up to the amounts that Amgen would
normally pay, as of the date your employment with Amgen terminated, to
newly hired Amgen employees in your job: normal and customary costs
for the packing, shipping, delivery, storage (for up to ninety (90)
days) and unpacking of your common household goods and furnishings.
7.2 If you shall sell your Residence so that the close of escrow on the
sale occurs prior to October 19, 2002, then in such event, Amgen will
reimburse you for those normal and non-recurring customary sales costs
associated with the sale of such residence, subject to the following
terms and conditions:
7.2.1 Amgen's obligation will be limited to that amount which, as of
the day immediately prior to the date of this Agreement, Amgen
would pay to reimburse other employees of your then salary
grade level;
7.2.2 to the extent that your new employer, if any, reimburses you
for, or pays any of, such non-recurring customary sales costs,
then Amgen will only reimburse you for that portion of the non-
recurring customary sales costs that exceed the amount paid for
by such new employer; and
7.2.3 you provide all documentation requested by Amgen in connection
with this Subparagraph 7.2, upon the request of Amgen.
7.3 If you meet the above conditions and so elect, Amgen will grant you
the opportunity to place your Residence in the "Amgen Marketing
Assistance and Homesale Program" (the "Program"). For a description
of the Program, please contact Xxxxxxxxx Xxxxxxxxx of the Amgen Human
Resources Department. In order to participate in the Program, you
must notify Xx. Xxxxxxxxx in writing, of your election to participate
in the Program no later than April 19, 2002, in order to complete the
home sale process by October 19, 2002. In order for Amgen to provide
you with the assistance provided for in this Subparagraph 7.3 in
connection with the sale of your Residence, you must give Amgen
control over the disposition of the property, must provide such
documentation as Amgen may request and must cooperate with Amgen in
the sale of the Residence.
8. EARLY TERMINATION OF SPECIAL ASSIGNMENT
---------------------------------------
We have agreed that you will continue in your part-time special assignment
position until October 19, 2002, at which time your employment with Amgen
will terminate, provided however, that Amgen may terminate your
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employment prior to October 19, 2002 in the event that a Stated Reason (as
defined below) occurs, and you may terminate your employment prior to
October 19, 2002 upon thirty (30) days prior written notice to Amgen in the
event of a Covered Breach (as defined below) or otherwise.
For purposes of this Paragraph 8, a "Stated Reason" means (i) your
conviction of a felony, or (ii) the engaging by you in conduct that
constitutes willful gross neglect or willful gross misconduct in carrying
out your duties set forth in Paragraph 1 of this Agreement, resulting, in
either case, in material economic harm to Amgen, unless you believed in good
faith that such conduct was in, or not contrary to, the best interests of
Amgen. For purposes hereof, no act, or failure to act, on your part shall be
deemed "willful" unless done, or omitted to be done, by you not in good
faith.
For purposes of this Paragraph 8, a "Covered Breach" means a breach by Amgen
of its obligations under this Agreement in the following manner only (i) any
reduction in your salary or benefits provided for in this Agreement or (ii)
the assignment of duties to you that are inconsistent with, or greater in
scope than, those set forth in Paragraph 1 of this Agreement or (iii) a
reduction in your title or position or the requirement that you work with
anyone other than Xxxxxx Xxxxxxx or a mutually agreed successor to Xxxxxx
Xxxxxxx or (iv) a failure by Amgen to have any successor expressly assume
this Agreement in accordance with Paragraph 17 of this Agreement. In order
for an event described in the preceding sentence to qualify as a Covered
Breach, you must give written notice of the event to Amgen and Amgen must
fail to cure the event within 30 days of receipt of that written notice.
In the event your employment is terminated by Amgen for a Stated Reason or
if you terminate your employment for any reason other than a Covered Breach
then your payments and benefits from Amgen under this Agreement, including
but not limited to the vesting of your stock options, will cease as of the
effective date of the termination of your employment.
In the event your employment is terminated by Amgen not for a Stated Reason
or if you terminate your employment for a Covered Breach, then (i) you shall
be paid in a cash lump-sum all of the remaining payments due to you under
this Agreement from the date of your termination through October 19, 2002,
(ii) you shall continue to be provided the benefits set forth in Paragraph
2.10 of this Agreement through October 19, 2002 and (iii) Amgen shall take
the necessary action to accelerate the vesting of all of your outstanding
and then unvested stock options so that they shall vest and become
immediately exercisable in full as of the Termination Date; such stock
options, as so accelerated shall be exercisable as provided in your stock
option grant agreements and applicable stock option plans. Amgen shall
provide you with a copy of the resolutions taking the action described in
clause (iii) of the preceding sentence.
The date of the termination of your employment for any of the foregoing
reasons, or upon your death, is hereinafter referred to as the "Termination
Date."
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9. DEATH
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In the event of the termination of your employment hereunder by reason of
your death prior to October 19, 2002, all of the remaining payments
pursuant to Paragraph 2.1 of this Agreement will be payable to the
beneficiary or beneficiaries that you designate in writing to Amgen. Your
other remaining benefits will be treated according to their specific terms
concerning such death. For purposes of Paragraph 10(a) of the Amgen Inc.
Amended and Restated 1991 Equity Incentive Plan, your employment with Amgen
shall be deemed to have commenced in 1982.
10. RELEASE
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In exchange for consideration provided to you under this Agreement, you
hereby agree to execute and be bound by the General Release attached hereto
as Appendix B (the "General Release") and to return the executed Agreement,
together with the executed General Release, to me on or before October 12,
1999. The General Release is hereby incorporated into and made part of the
Agreement by this reference.
11. INTERPRETATION
--------------
This Agreement, Resignation Letter attached hereto as Appendix A, and the
General Release attached hereto as Appendix B shall be construed as a whole
according to their fair meaning, and not strictly for or against any of the
parties. Unless the context indicates otherwise, the term "or" shall be
deemed to include the term "and" and the singular or plural number shall be
deemed to include the other. Paragraph headings used in this Agreement and
the General Release are intended solely for convenience of reference and
shall not be used in the interpretation of any of this Agreement or the
General Release.
12. NOTICES
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For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested,
postage prepaid, addressed, if to you, to the last address on file with
Amgen and if to Amgen, to its executive offices or to such other address as
any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only
upon receipt.
13. LEGAL FEES; ARBITRATION
-----------------------
13.1 Agreement to Arbitrate: Any dispute (an "Arbitrable Dispute")
----------------------
arising between the parties, including but not limited to those
concerning the formation, validity, interpretation, effect, or alleged
violations of this Agreement or the General Release, must be submitted
to binding arbitration for resolution in Los Angeles, California in
accordance with the rules and procedures of the Employment Dispute
Resolution
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Rules of the American Arbitration Association then in effect. The
decision of the arbitrator shall be final and binding on both parties,
and any court of competent jurisdiction may enter judgment upon the
award. Amgen shall pay all expenses relating to such arbitration,
including, but not limited to, your legal fees. Except for an action
taken outside of arbitration pursuant to Subparagraph 13.3 of this
Agreement, should either party pursue any other legal or
administrative action against the other, the responding party shall be
entitled to the return of any payments that party made under the
Agreement and shall be entitled to recover all costs, expenses and
attorneys' fees the responding party incurs as a result of such
action. The arbitrator may not modify or change this Agreement or the
General Release in any way.
13.2 Exclusive Remedy: Arbitration in this manner shall be the exclusive
----------------
remedy for any Arbitrable Dispute. The arbitrator's decision or award
shall be fully enforceable and subject to an entry of judgment by a
court of competent jurisdiction. Except for an action taken outside
of arbitration pursuant to Subparagraph 13.3 of this Agreement, should
you or Amgen, without the consent of the other party, attempt to
resolve an Arbitrable Dispute by any method other than arbitration
pursuant to this Paragraph 13, the responding party shall be entitled
to recover from the initiating party all damages, expenses and
attorneys' fees incurred as a result.
13.3 Sole Exception: Notwithstanding the foregoing, a dispute relating to
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the alleged use or disclosure of information which is prohibited by
the Proprietary Agreement, and/or the criticism, denigration or
disparagement of Amgen, any other Amgen Releasee, as defined in
Subparagraph 1.1 of the General Release, or any of Amgen's products,
processes, experiments, policies, practices, standards of business
conduct, or areas or techniques of research may be resolved through a
means other than arbitration, at Amgen's sole option.
14. GOVERNING LAW
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This Agreement is governed by, and is to be construed and enforced in
accordance with, the laws of the State of California, without regard to
principles of conflicts of laws.
15. TAXES
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You acknowledge and agree that all payments made pursuant to this Agreement
shall be made less applicable tax withholdings and/or other withholdings as
required by law. You acknowledge and agree that you, and not Amgen, shall
be solely responsible for any taxes imposed upon you as a result of the
payments and benefits you receive under the Agreement with the sole
exception of the potential 280G tax gross-up as provided in Subparagraph
2.8 of this Agreement.
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16. MITIGATION
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You shall not be required to mitigate amounts payable under this Agreement
by seeking other employment or otherwise, and there shall be no offset
against amounts due you under this Agreement on account of subsequent
employment. Additionally, amounts owed to you under this Agreement shall
not be offset by any claims Amgen may have against you and Amgen's
obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder, shall not be affected by
any other circumstances, including, without limitation, any counterclaim,
recoupment, defense or other right which Amgen may have against you or
others.
17. SUCCESSORS; BINDING AGREEMENT
-----------------------------
17.1 Amgen's Successors: No rights or obligations of Amgen under this
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Agreement may be assigned or transferred except that Amgen will
require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Amgen to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that
Amgen would be required to perform it if no such succession had taken
place. As used in this Agreement, "Amgen" shall mean Amgen as herein
before defined and any successor to its business and/or assets (by
merger, purchase or otherwise) which executes and delivers the
agreement provided for in this Paragraph 17 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation
of law.
17.2 Your Successors: No rights or obligations of you under this
---------------
Agreement may be assigned or transferred by you other than your rights
to payments or benefits hereunder, which may be transferred only by
will or the laws of descent and distribution. Upon your death, this
Agreement and all rights of you hereunder shall inure to the benefit
of and be enforceable by your beneficiary or beneficiaries, personal
or legal representatives, or estate, to the extent any such person
succeeds to your interests under this Agreement. You shall be
entitled to select and change a beneficiary or beneficiaries to
receive any benefit or compensation payable hereunder following your
death by giving Amgen written notice thereof. In the event of your
death or a judicial determination of your incompetence, reference in
this Agreement to you shall be deemed, where appropriate, to refer to
your beneficiary(ies), estate or other legal representative(s). If
your should die following your Termination Date while any amounts
would still be payable to you hereunder if you had continued to live,
all such amounts unless otherwise provided herein shall be paid in
accordance with the terms of this Agreement to such person or persons
so appointed in writing by you, or otherwise to your legal
representatives or estate.
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18. ENTIRE AGREEMENT
----------------
Other than the Proprietary Agreement, your stock option agreements and
applicable stock option plans, and the CIC Plan, this Agreement, the
Resignation Letter attached hereto as Appendix A, and the General Release
attached hereto as Appendix B constitute the entire agreement, arrangement
and understanding between you and Amgen; they may not be modified or
canceled in any manner except by a writing signed by both you and Amgen.
This Agreement and the General Release supersede any prior or
contemporaneous agreement, arrangement or understanding on this subject
matter. By executing this Agreement, the Resignation Letter, and the
General Release below, you expressly acknowledge the termination of any
such prior agreement, arrangement or understanding. Also, by executing
this Agreement, the Resignation Letter, and the General Release, you affirm
that no one has made any written or verbal statement that contradicts the
provisions of this Agreement, the Resignation Letter, or the General
Release.
Sincerely yours,
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Amgen Inc.
By: Xxxxxx X. Xxxxxx
Chief Executive Officer and Chairman
Acknowledged and Agreed:
/s/ Dr. N. Xxxxx Xxxxx
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Dr. N. Xxxxx Xxxxx Dated: 10/11/99
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APPENDIX A
[To be printed on Xx. X. Xxxxx Alton's Amgen Stationery]
RESIGNATION
-----------
The undersigned hereby resigns as an officer and/or director of the following
corporations, effective October 20, 1999:
Amgen Inc.
Kirin Amgen, Inc.
/s/ Dr. N. Xxxxx Xxxxx
---------------------------------
Dr. N. Xxxxx Xxxxx
APPENDIX B
MUTUAL GENERAL RELEASE
By signing below, Amgen Inc. ("Amgen" or the "Company") and you, Dr. N.
Xxxxx Xxxxx, agree to all of the terms and conditions set forth in this Mutual
General Release, which resolves all issues between you and the Company
including, but not limited to, those related to your employment with the
Company, and the termination thereof.
1. COMPLETE RELEASE
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1.1 Release: In exchange for consideration provided to you and the
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Company under the Agreement, the receipt of which and adequacy thereof
you and the Company hereby acknowledge, you irrevocably and
unconditionally release all the claims described in Subparagraph 1.2
of this General Release that you may have against the following
persons or entities (collectively the "Amgen Releasees"): Amgen, all
related or affiliated companies and all of Amgen's or such related or
affiliated companies' predecessors, successors, and assigns; and, with
respect to each such entity, all of its past and present employees,
officers, directors, stockholders, owners, representatives, assigns,
attorneys, agents, insurers, employee benefit programs (and the
trustees, administrators, fiduciaries and insurers of such programs)
and any other persons acting by, through, under or in concert with any
of the persons or entities listed in this Subparagraph and each of
them; and the Company irrevocably and unconditionally releases all the
claims described in Subparagraph 1.2 of this General Release that the
Company may have against you, your employees, agents, attorneys,
representatives, successors, and assigns, past and present and each of
them.
1.2 Claims Released: Except as provided in Subparagraph 1.4 of this
---------------
General Release, the claims released include all claims of whatever
nature, whether known or unknown, suspected or unsuspected, by either
you or Amgen which you or Amgen now owns or holds or has at any time
previously held, or (with the sole exception of claims covered by
Subparagraph 1.4 of this General Release) ever in the future may hold
including statutory claims arising under the employment discrimination
laws. In particular, you acknowledge and agree that by signing the
Agreement and this General Release, in addition to the matters
discussed above, you are waiving and releasing any and all claims,
charges, or rights you may have under the Age Discrimination In
Employment Act of 1967, as amended (the "ADEA"), that this waiver and
release is knowing and voluntary, and that the consideration given for
this waiver and release is in addition to anything of value to which
you were already entitled as an employee of Amgen. You further
acknowledge that you have been advised that: (a) you should consult
with an attorney (at your own expense, subject to your right to
reimbursement as set forth in Paragraph 5 of the Agreement) prior to
executing the Agreement and this General Release; (b) you have at
least twenty-one (21) days in which to consider the Agreement and this
General Release (although you may choose to execute the Agreement and
this General Release earlier and waive all of or part of the 21-day
period); (c) the Agreement and this General
Release do not waive or release any rights or claims you may have
under the ADEA which may arise after you execute the Agreement and
this General Release; (d) you have seven (7) days following execution
of the Agreement and this General Release to revoke your consent to
the Agreement and this General Release (to be effective, any
revocation must be actually received in writing by me by 5:30 p.m. on
the seventh day); and (e) the Agreement and this General Release shall
not be effective until the seven (7) day revocation period has
expired. In the event that you exercise this right to revoke this
General Release, you and Amgen agree that the Agreement (including
without limitation the Resignation Letter attached to the Agreement as
Appendix A) will be simultaneously revoked. You also acknowledge and
agree that you were given a copy of the Agreement and this General
Release on September 21, 1999, that you have been given the
opportunity to consult with whomever you wish regarding the Agreement
and this General Release and that you have entered into the Agreement
and this General Release voluntarily and with full knowledge of its
final and binding effect.
1.3 Release Extends to Both Known and Unknown Claims: This General
------------------------------------------------
Release covers both claims that you and/or Amgen know about and those
you and/or Amgen do not know about. You understand the significance
of this release of unknown claims and this waiver of statutory
protection against a release of unknown claims by both you and Amgen.
You and Amgen each expressly waive all rights afforded by any statute
which limits the effect of a release with respect to unknown claims.
You and Amgen each expressly waive the protection of (S) 1542 of the
Civil Code of the State of California.
1.4 Claims Not Released: This General Release does not release your right
-------------------
or the Company's right to enforce the Agreement.
2. YOUR PROMISES
-------------
In addition to the release of claims provided for in Paragraph 1 of this
General Release, you also agree to the following:
2.1 No Future Employment: You understand that, as provided in Paragraph 8
--------------------
of the Agreement, your employment with Amgen and all related or
affiliated companies will terminate forever on the Termination Date
and you promise never to seek employment with Amgen or its related or
affiliated companies in the future. If your employment is not
terminated by Amgen for a Stated Reason, Amgen shall treat this
termination as a resignation on its records. You acknowledge and
agree that the Agreement, together with this General Release,
contemplates your termination from Amgen on the Termination Date, and
that the release in Paragraph 1 of this General Release shall cover
your entire employment with Amgen and the termination of that
employment. On the day after the Termination Date, you and Amgen each
promise to execute and be bound by a second General Release which
contains all of the provisions set forth in this General Release and
which reconfirms each party's release of such claims as of the
Termination Date.
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2.2 You are Not to Harm Amgen: You agree not to knowingly and willfully
-------------------------
criticize, denigrate or otherwise disparage Amgen, any other Amgen
Releasee, or any of Amgen's products, processes, experiments,
policies, practices, standards of business conduct, or areas or
techniques of research to the extent that such conduct causes
demonstrable injury to Amgen; provided, however, that nothing in this
General Release shall prohibit you from complying with any lawful
subpoena or court order.
2.3 No Knowledge of Violations: You represent that you are not aware of
--------------------------
any facts that would (a) establish, (b) tend to establish, or (c) in
any way support an allegation of a violation by Amgen of the federal
False Claims Act (or any similar state or federal qui tam statute).
--- ---
3. CONSEQUENCES OF YOUR VIOLATION OF YOUR PROMISES
-----------------------------------------------
3.1 General Consequences: If you break any of the promises made in the
--------------------
Agreement or this General Release, for example, by filing or
prosecuting a lawsuit based on claims that you have released, or
declining to execute the second General Release contemplated by
Paragraph 2.1, or if any representation made by you in this General
Release was false when made, you (a) shall forfeit all right to future
benefits under the Agreement; (b) must repay all benefits previously
received, other than the monthly compensation paid to you under
Paragraph 2.1 of the Agreement, upon Amgen's demand; and (c) must pay
reasonable attorneys' fees and all other costs incurred as a result of
your breach or false representation, such as the cost of defending any
suit brought with respect to a released claim by you or other owner of
a released claim. It is agreed that your breach of Subparagraph 2.2
of this Agreement will not be covered by this Paragraph 3.1 unless you
are given written notice by the Company specifying your breach of
Subparagraph 2.2 and you fail to cure such a breach within 14 days of
receipt of such notice.
In addition, in order to ensure that you have complied fully with your
obligations under Paragraph 2.3 of this General Release, you hereby
covenant and agree that to the full extent permitted by law, you
hereby waive and release any and all rights or claims you may have to
any personal claim for proceeds or awards that you may be entitled to
under any qui tam proceeding brought against Amgen. You further agree
--- ---
that you shall deliver any such money, proceeds, or awards to the U.S.
government.
3.2 Injunctive Relief: You further agree that Amgen would be irreparably
-----------------
harmed by any use or disclosure of information that is prohibited by
the Amgen Inc. Proprietary Information and Inventions Agreement,
executed by you on or about January 15, 1982 (the "Proprietary
Agreement") (which contains obligations that survive the termination
of your employment with Amgen), and that Amgen shall be entitled to an
injunction prohibiting you from committing any such violation.
3.3 Challenges to Validity: Should you attempt to challenge the formation
----------------------
or enforceability of the Agreement and/or this General Release, you
shall initially
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tender, by certified check delivered to Amgen, all amounts received
pursuant to the Agreement, other than the monthly compensation paid to
you under Paragraph 2.1 of the Agreement, plus interest at the legal
rate and invite Amgen to cancel the Agreement. In the event Amgen
accepts this offer, the Agreement shall be canceled. In the event
Amgen does not accept this offer, Amgen shall so notify you and the
amount tendered by you shall be placed in an interest-bearing account
pending a determination of the enforceability of the Agreement and/or
this General Release. If the Agreement and this General Release are
determined to be enforceable, the amount in the account shall be
repaid to you; if the Agreement and/or this General Release are
determined not to be enforceable, the amount in the account shall be
retained by Amgen or its designee.
4. VOLUNTARILY ENTERING AGREEMENT
------------------------------
You acknowledge that you (a) have had a sufficient period to consider and
review the Agreement and this General Release before signing them; (b) have
carefully read the Agreement and this General Release; and (c) fully
understand the Agreement and this General Release and are entering into
them voluntarily.
5. SEVERABILITY
------------
The provisions of this General Release are severable. If any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect and
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be affected or impaired in any way, it being intended that all of
the parties' rights and privileges arising hereunder shall be enforceable
to the fullest extent permitted by law.
PLEASE READ THIS GENERAL RELEASE CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
Executed at Thousand Oaks, California this 11th day of October, 1999.
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/s/ Dr. N. Xxxxx Xxxxx
---------------------
Dr. N. Xxxxx Xxxxx
Executed at Thousand Oaks, California this 11th day of October, 1999.
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/s/ Xxxxxx X. Xxxxxx
--------------------
Amgen Inc.
By: Xxxxxx X. Xxxxxx
Chief Executive Officer and Chairman
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