EXHIBIT 10.42
March 6, 2000
Dr. Lawrence M. Souza, Ph.D.
417 Camino de Celeste
Thousand Oaks, CA 91360
Re: Agreement Regarding Part-Time Special Assignment Position
---------------------------------------------------------
Dear Larry:
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 Research which will occur on March 15,
2000 (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 July 31, 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, Research reporting to Dr. Dennis Fenton, Senior
Vice President, or his designee or successor. 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 a Special Advisor, Research, you will assist Dennis, or his designee or
successor, by providing technical and professional assessments of Amgen's
current products and products which Amgen is in the process of developing
as of the Effective Date and such other matters as you and Dennis, or his
designee or successor, may mutually agree upon in the future. You will be
a member of the Research Department and, as such, Dennis or his successor
or designee will assign these matters to you from time to time and you will
provide Dennis, or his successor or designee with written or oral reports
of your assessments. Dennis or his successor or designee will evaluate
your performance.
Also, you will assist Steve Odre, Associate General Counsel, or his
designee or successor, on intellectual property or other related legal
matters or litigation. This assistance may include, but shall not be
limited to your meeting with Amgen attorneys, and testifying or otherwise
appearing at depositions or court hearings scheduled as a result of any
such litigation, including preparation for all the above. Steve, or his
designee or successor, will assign these matters from time to time and will
evaluate your performance.
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 2
Dennis and/or Steve, or their designees or successors (collectively, "Your
Supervisor") will control and direct the manner in which you perform the
services under this Agreement, including the details and means by which you
provide your services.
You will be an employee of Amgen for all purposes during the term of this
Agreement and will not be an independent contractor.
You will also be required to provide to Your Supervisor, upon their
reasonable request, written or oral reports and/or copies of other written
materials with regard to the foregoing.
As we have discussed, the position of Special Advisor, Research is a part-
time special assignment position in which you will be expected to work a
minimum of ten (10) hours per month; however, you also agree that, to the
extent that Your Supervisor requests, you will work up to twenty (20) hours
per month.
If requested by Your Supervisor, you agree to attend certain scientific
meetings or programs related to your area of expertise so long as such
meeting or program does not unreasonably interfere with your other
activities.
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. Amgen, at any time, may request a copy of your log and you
agree to provide such a copy within a reasonable period of time after the
request is made. Furthermore, from time to time, your duties may require
you to travel and attend meetings at various locations, including Amgen's
Thousand Oaks facility, and you agree that no reasonable request by Your
Supervisor for travel or attendance at meetings will be refused. Your
Supervisor will work with you in scheduling any such business trips or
meetings so that they do not unreasonably interfere with your other
activities and Amgen will reimburse you for your reasonable travel
expenses.
We have agreed that your part-time special assignment will continue until
July 31, 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 July 27, 1981 (the "Proprietary Agreement") (which also contains
obligations that survive the termination of your employment with Amgen).
During the term of your part-time special assignment, except as set forth
herein, you may not be employed by any person or company other than Amgen,
without Amgen's prior approval. You may, however, consult for companies
outside the fields of biotechnology and/or pharmaceutics, or companies
within these fields having less than 500 employees and no current
contractual relationship with Amgen, provided that such consulting does not
violate the Proprietary Agreement or interfere with your duties under this
Agreement. In addition, you may be self-employed, an independent
contractor, a partner or a consultant in a venture
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 3
fund, or a founding member of a biotechnology startup, provided these
activities do not violate the Proprietary Agreement or interfere with your
duties under this Agreement. Your engaging in the consulting and other
activities described in the preceding two sentences shall not constitute a
violation of paragraph D.2 of the Proprietary Agreement, provided that such
consulting and other activities are not for any profit or non-profit
institution which is competitive with or involves the businesses in which
Amgen is engaged or its actual research and development, as of the
Effective Date of this Agreement. You also agree that during the term of
this Agreement you will not solicit for employment or affiliation,
including as an independent contractor, any officer, director, or employee
of Amgen or its subsidiaries.
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 $66,995 per month, subject to
------------
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
----------------------
secretarial assistance for any work that you perform while at Amgen's
Thousand Oaks headquarters. You will also be provided any office
equipment and supplies you may need to perform your duties under this
Agreement and you will have access to the services of Amgen's travel
department.
2.3 Management Incentive Plan: You will not be eligible to participate in
-------------------------
Amgen's Management Incentive Plan (the "MIP") for any year after the
1999 calendar year.
2.4 Special Bonus for 2000 Calendar Year: As part of the transition to
------------------------------------
your part-time special assignment position, you will be entitled to a
special bonus in the amount of 25% of your actual 1999 MIP award. This
payment will be paid to you shortly after you receive your 1999 MIP
payment.
2.5 Employee Stock Purchase Plan: You will be eligible to continue to
----------------------------
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.
2.6 Supplemental Retirement Plan: As an employee in a part-time special
----------------------------
assignment position, you will no longer be eligible to receive
additional credits in your supplemental retirement plan account,
although you will continue to maintain an account and receive earnings
on the balance in your account until the termination of
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 4
your employment.
2.7 Retirement and Savings Plan: Pursuant to Section 3.3 of the 401(k)
---------------------------
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
--------------------------------
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:
-------------
2.9.1 No New Grants: As an employee in a part-time special
-------------
assignment position, you will not be eligible to receive
additional stock option grants after the Effective Date.
2.9.2 Vesting During Special Assignment: To the extent that you
---------------------------------
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. No stock options will vest
following the Termination Date as defined in Paragraph 8 of
this Agreement.
2.9.3 Cooperation To Restructure: As we have discussed, it is our
--------------------------
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
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 5
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. It is expressly understood that
Dr. Souza's "reasonable best efforts to cooperate with Amgen"
shall not require that he take or forbear from taking any
action that would result in any loss of value of the options.
2.9.4 No Amendment to Stock Option Grant Agreements or Stock Option
-------------------------------------------------------------
Plans: Nothing in this Agreement shall be deemed to alter,
-----
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, 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 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
September 14, 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.
Generally, the period during which you and/or your eligible dependents
will be eligible for COBRA benefits will be no more than eighteen (18)
months from the Effective Date. However, if you and/or your eligible
dependents qualify for COBRA benefits on or after September 14, 2001,
then you and/or your eligible dependents will have the option of
continuing coverage under Amgen's group health plan(s), under COBRA
for the period for which you are entitled to receive COBRA benefits,
provided that you and your eligible dependents continue to meet the
qualification requirements under COBRA and under Amgen's group health
plans and Amgen will pay the cost of such COBRA coverage for you and
your eligible dependents until the earlier of July 31, 2002 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 shall occur first. If you obtain health
insurance coverage for you and/or your COBRA eligible dependents for
the period between March 14, 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
--------------------
terminate on the
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 6
Effective Date. If you are interested in converting this insurance to
an individual policy, please contact Jean Ellis at Aetna (860) 273-
7252 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 Amgen Foundation Matching Funds: During the term of your special
-------------------------------
assignment, contributions you make to qualified organizations will
continue to be eligible for matching funds from the Amgen Foundation,
subject to the same terms, conditions, and limitations that apply to
contributions made by regular, full-time employees of Amgen.
2.14 Other Benefits: As an employee in a part-time special assignment
--------------
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 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 the following items: Compaq Deskpro computer, Mitsubishi Diamond
Pro 9TTXM monitor, Compaq keyboard and mouse, Kodak audioviewer projector,
portable lightbox, Panasonic pencil sharpener, and 8 slide carousels
(without slides), 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 computer 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
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 7
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
----------------------------------------------------
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
$10,000. 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
---------
Amgen will provide you with a positive written factual reference. Gordon
M. Binder 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 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 third parties the dates of
your employment at Amgen and the last position you held as an Amgen
employee.
7. RELOCATION
----------
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 Thousand Oaks, California (the "Residence") so
that the sale escrow closes no later than July 31, 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 July 31, 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:
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 8
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 Christine Swinburne of the Amgen Human
Resources Department. In order to participate in the Program, you must
notify Ms. Swinburne in writing, of your election to participate in
the Program no later than January 19, 2002, in order to complete the
home sale process by July 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 July 31, 2002, at which time your employment with Amgen will
terminate, provided however, that Amgen may terminate your employment prior
to July 31, 2002 and you may terminate your employment prior to July 31,
2002 upon thirty (30) days prior written notice to Amgen.
For purposes of this Paragraph 8, a "Stated Reason" means (i) your
conviction of a felony, (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; or (iii) your material breach of any of the terms of this
Agreement. 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 (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
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 9
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 cash payments due to
you under this Agreement from the date of your termination through July 31,
2002, (ii) you shall continue to be provided the benefits set forth in
Paragraph 2.10 of this Agreement through July 31, 2002 and (iii) Amgen
shall take the necessary corporate 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.
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."
9. DEATH
-----
In the event of the termination of your employment hereunder by reason of
your death prior to July 31, 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 1981, when you first became an employee at
Amgen.
10. RELEASE
-------
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 March 10,
2000. The General Release is hereby incorporated into and made part of the
Agreement by this reference.
11. INTERPRETATION
--------------
This Agreement, the 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
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 10
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
-------
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
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. Except for an action taken outside of arbitration pursuant to
Subparagraph 13.4 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 Costs of Arbitration: Each party shall pay the fees of their
--------------------
respective attorneys, the expenses of their witnesses and any other
expenses connected with the arbitration, but all other costs of the
arbitration, including the fees of the arbitrator, cost of any record
or transcript of the arbitration, administrative fees and other fees
and costs shall be paid in equal shares by you and Amgen. The party
losing the arbitration shall reimburse the party who prevailed for all
fees and expenses the prevailing party paid pursuant to the preceding
sentence, and (where a prevailing-party attorney's fees provision
exists) shall also reimburse the prevailing party for attorney's fees
paid.
13.3 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 13.4 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
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 11
13, the responding party shall be entitled to recover from the
initiating party all damages, expenses and attorneys' fees incurred as
a result.
13.4 Sole Exception: Notwithstanding the foregoing, a dispute relating to
--------------
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
-------------
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
-----
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. This paragraph shall not be construed to require
you to pay Amgen's portion of any employment tax withholding, such as
Amgen's portion of FICA or FUTA.
16. NO ASSIGNMENT OR DELEGATION
---------------------------
Amgen has selected you for this part-time special assignment because it has
judged that your unique experience and skills are those Amgen required for
the job. Accordingly, you may not assign or delegate any of your duties or
responsibilities under this Agreement.
17. SUCCESSORS; BINDING AGREEMENT
-----------------------------
17.1 Amgen's Successors: No rights or obligations of Amgen under this
------------------
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.
Dr. Lawerence M. Souza, Ph.D.
March 6, 2000
Page 12
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.
18. ENTIRE AGREEMENT
----------------
The Proprietary Agreement, your stock option agreements, 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/ Gordon M. Binder
------------------------------------
Amgen Inc.
By: Gordon M. Binder
Chief Executive Officer and Chairman
Acknowledged and Agreed:
/s/ Lawrence M. Souza
----------------------------
Dr. Lawrence M. Souza, Ph.D.
Dated: 3/8/00
---------------------
APPENDIX A
RESIGNATION
-----------
The undersigned hereby resigns, effective March 15, 2000, as an officer and/or
director of Amgen Inc. and any and all Amgen affiliates and subsidiary entities.
/s/ Lawrence M. Souza
----------------------------
Dr. Lawrence M. Souza, Ph.D.
APPENDIX B
MUTUAL GENERAL RELEASE
By signing below, Amgen Inc. ("Amgen" or the "Company") and you, Dr.
Lawrence M. Souza, Ph.D., 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
----------------
1.1 Release: In exchange for consideration provided to you and the
-------
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
B-1
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 first given a copy of the Agreement and this General Release on
January 26, 2000, 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, except that if you are employed by
a company that Amgen acquires in the future, you will not be
terminated solely by virtue of this paragraph. 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.
B-2
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 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 General
Release 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 July 27, 1981 (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 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
B-3
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 8th day of March, 2000.
------------- --- -----
/s/ Lawrence M. Souza
- ----------------------------
Dr. Lawrence M. Souza, Ph.D.
Executed at Thousand Oaks, California this 6th day of March, 2000.
--- -----
/s/ Gordon M. Binder
- ------------------------------------
Amgen Inc.
By: Gordon M. Binder
Chief Executive Officer and Chairman
B-4