EXHIBIT 99.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made and entered into as of
the Effective Date (as hereinafter defined), between Amgen Inc., a Delaware
corporation (the "Company"), and Edward V. Fritzky (the "Executive");
WHEREAS, the Executive is employed by Immunex Corporation ("Immunex
Corporation") as Chief Executive Officer and the Executive possesses intimate
knowledge of the business and affairs of Immunex Corporation and has acquired
certain confidential information and data with respect to Immunex Corporation;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of December
16, 2001 by among the Company, Immunex Corporation and a subsidiary of the
Company ("Merger Sub") (the "Merger Agreement"), Merger Sub will merge with and
into Immunex Corporation (the "Merger");
WHEREAS, the Company has determined that it is of the utmost importance to
assure itself of retaining the Executive's services during the critical period
following the Merger to assist in the integration of the operations of the
Company and Immunex Corporation;
WHEREAS, the Company desires to secure the continued employment of the
Executive in accordance herewith, effective upon the date of the consummation of
the Merger pursuant to the Merger Agreement (the "Effective Date");
WHEREAS, the Executive is a participant in the Immunex Corporation
Leadership Continuity Plan, dated as of October 25, 2001 (the "LCP");
WHEREAS, the Executive would be entitled to receive certain severance
payments and benefits pursuant to the LCP upon termination of employment with
Immunex Corporation following the Effective Date;
WHEREAS, the Executive intends to forego the right to receive such payments
and benefits by entering into this Agreement;
WHEREAS, the parties now desire to enter into an agreement setting forth
the terms and conditions of the employment relationship of the Executive and the
Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, it is hereby agreed as follows:
1. Definitions.
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(a) "Board" shall mean the Board of Directors of the Company.
(b) "Cause" shall mean (i) the willful and continued failure by the
Executive to substantially perform the Executive's duties with the Company
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination for Good Reason by the Executive pursuant to
Section 14 hereof) that has not been cured within thirty (30) days after a
written demand for substantial performance is delivered to the Executive by the
Board, which demand specifically
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identifies the manner in which the Board believes that the Executive has not
substantially performed the Executive's duties, (ii) the willful engaging by the
Executive in conduct which is demonstrably and materially injurious to the
Company or its subsidiaries, monetarily or otherwise, or (iii) a material breach
by the Executive of the terms of this Agreement. For purposes of clauses (i) and
(ii) of this definition, (x) no act, or failure to act, on the Executive's part
shall be deemed "willful" unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that the Executive's act, or
failure to act, was in the best interest of the Company and (y) in the event of
a dispute concerning the application of this provision, no claim by the Company
that Cause exists shall be given effect unless the Company establishes to the
Board by clear and convincing evidence that Cause exists.
(c) "Code" shall mean the Internal Revenue Code of 1986, including any
amendments thereto or successor tax codes thereof.
(d) "Good Reason" shall mean any material breach of this Agreement by
the Company that has not been cured within thirty (30) days after a written
demand for cure is delivered to the Company by the Executive, including without
limitation:
(i) the removal of the Executive from his position as a member of
the Board except in the event that such removal relates to the
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termination by the Company of the Executive's employment for Cause or
by reason of disability pursuant to Section 13 hereof; or
(ii) failure by the Company to obtain the assumption of this
Agreement as contemplated by Section 19(a) hereof.
(e) "Termination Date" shall mean (i) if the Executive's employment is
terminated by the Executive's death, the date of death; (ii) if the Executive's
employment is terminated for purposes of this Agreement by reason of disability
pursuant to Section 13 hereof, the earlier of thirty (30) days after the Notice
of Termination is given or one (1) day prior to the end of the Employment
Period; (iii) if the Executive's employment is terminated by the Executive
voluntarily (other than for Good Reason), the date the Notice of Termination is
given; (iv) if the Executive's employment is terminated by the Company, whether
or not for Cause, (other than by reason of disability pursuant to Section 13
hereof) or by the Executive for Good Reason, the earlier of thirty (30) days
after the Notice of Termination is given or one (1) day prior to the end of the
Employment Period; and (v) if the Executive's employment is not terminated prior
to the end of the Employment Period, the date following the last day of the
Employment Period.
2. Employment; Employment Period.
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(a) On the Effective Date, the Company shall employ the Executive, and
the Executive will be employed by the Company, in accordance with
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the terms of this Agreement for the period set forth below (the "Employment
Period"). During the Employment Period, Executive shall be an employee of the
Company for all purposes and will not be an independent contractor.
(b) The Employment Period shall commence as of the Effective Date and
shall continue until the second anniversary of the Effective Date (that second
anniversary shall be the last day of the Employment Period); provided, however,
that if the Merger Agreement is terminated in accordance with its terms, then,
at the time of such termination, this Agreement shall terminate and be of no
force or effect. This Agreement shall be of no force and effect unless and until
the Effective Date occurs.
(c) The Executive hereby waives any right to any severance benefit
otherwise payable to the Executive pursuant to the LCP. In consideration for
such waiver, on the Effective Date the Company shall pay to the Executive a cash
lump sum payment equal to three times the sum of (i) the Executive's base salary
as in effect immediately prior to the Effective Date, (ii) the Executive's
target annual incentive compensation in effect immediately prior to the
Effective Date, and (iii) the value of the contributions or the allocations
made, as applicable, on behalf of the Executive to the Immunex Corporation
401(k) Savings Plan and the Immunex Corporation Nonqualified Deferred
Compensation Plan in respect of the fiscal year ending immediately prior to the
fiscal year in which the Effective Date occurs.
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3. Duties.
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(a) During the Employment Period, the Executive shall serve as a
strategic advisor to the Company. At or prior to the Effective Time (as defined
in the Merger Agreement), the Board shall take all action necessary so that,
immediately following the Effective Time, the Executive shall be appointed to
the Board. If at the Effective Time the Company has multiple classes of
directors, the Company shall take all action reasonably necessary, subject to
applicable law, to appoint Executive to the class of directors with the longest
remaining term as of the Effective Time, provided that the Company shall not be
required to request that an incumbent director of the Company switch classes.
The Executive shall not be required to perform services hereunder for more than
20 hours per month. Subject to Section 1(b), it shall not be a violation of this
Agreement for the Executive to pursue other interests, whether of a personal or
professional nature, so long as in so doing he does not engage in a business
which is competitive with the Company's business.
(b) The Executive shall report directly to the Chief Executive Officer
of the Company and shall perform such strategic advisory services as are
assigned to him by the Chief Executive Officer of the Company, provided that
such services are consistent with the Executive's background and experience.
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4. Office Space and Support Services.
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If during the Employment Period the Executive elects to perform
services at rented offices, the Executive shall be reimbursed for rental
payments for office space, subject to the limitation in the last sentence of
this section. During the Employment Period, the Company shall reimburse the
Executive for secretarial, communications and technology support services,
subject to the limitation in the last sentence of this section. All expenses
reimbursed to the Executive under this Section 4 shall not exceed $250,000 per
year.
5. Compensation. During the Employment Period, the Executive shall be
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compensated as follows:
(a) The Executive shall receive, in accordance with the Company's
standard payroll policies, an annual base salary of not less than $500,000.
(b) The Executive shall be entitled to participate in all of the
employee benefit plans and arrangements (including any life, death, disability,
accident or health insurance plan, employee stock purchase plan, and qualified
or non-qualified retirement or savings plan) made available by the Company to
senior executives of the Company, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements;
provided, however, that to the extent Executive's participation in such Company
benefit plans and arrangements is precluded by the applicable terms and
conditions of such plans
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or arrangements, the Company shall arrange to provide, at the Company's sole
expense, the Executive and anyone entitled to claim under or through the
Executive with equivalent benefits (on an after tax basis) under an alternative
arrangement. Notwithstanding the foregoing, in no event shall the Executive
participate in Company's Performance Based Management Incentive Plan.
(c) The Executive shall be entitled to receive perquisites, including,
without limitation, financial counseling and tax planning services by AYCO or a
company providing comparable equivalent services, that are the same as or
substantially equivalent to, those provided to the Executive by Immunex
Corporation immediately prior to the Effective Date.
6. Retention Bonus. Effective as of the Effective Date, the Company shall
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contribute a retention bonus of $1,000,000 to a deferred compensation account
(the full balance of such account as of any specified date, the "Retention Bonus
Account") established for the benefit of the Executive under the Company's
deferred compensation plan (the "Deferred Compensation Plan"). Except to the
extent otherwise provided in this Agreement, the Retention Bonus Account, and
the Executive's rights with respect thereto, shall be subject to the terms and
conditions of the Deferred Compensation Plan. The Retention Bonus Account shall
vest as follows: (a) with respect to $500,000 originally deposited (plus the
related earnings and minus the related losses), on the on the first anniversary
of the Effective Date
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(provided the Executive is then employed by the Company), and (b) with respect
to an additional $250,000 originally deposited (plus the related earnings and
minus the related losses) on each of (i) the date 18 months immediately
following the Effective Date and (ii) the second anniversary of the Effective
Date (in each case provided the Executive is the employed by the Company).
Except as provided in Sections 10, 11, 12 and 13, the Retention Bonus Account
shall be paid to the Executive upon the second anniversary of the Effective
Date, provided that the Executive is employed with the Company on such date.
7. Equity Grants.
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(a) The Company shall grant to the Executive, effective as of the
Effective Date, a non-qualified stock option (the "Option") to purchase 450,000
shares of the common stock of the Company par value $.0001 per share ("Common
Stock"). The grant shall provide for (i) an exercise price per share equal to
the fair market value of the Common Stock on the date of grant, (ii) except as
provided in Sections 10, 11, 12 and 13, the vesting of the Option at the rate of
one-third (1/3) of the shares of Common Stock subject to such Option on the date
of grant and one-third (1/3) on each of the first and second anniversaries of
the Effective Date, (iii) an option term equal to five (5) years and (iv) in the
event that the Executive's employment with the Company is terminated on or after
the end of the Employment Period, a post-termination exercise period of the
remainder of such option term.
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Except as set forth in this Agreement, the Option shall be subject to the other
terms and conditions similar to those set forth in the Company's Amended and
Restated 1997 Equity Incentive Plan (the "Option Plan") (or applied to grants to
senior executives of the Company) and the applicable stock option agreement
which shall reflect the terms set forth herein and which shall be attached as
Exhibit A hereto prior to the Effective Date, in form agreed upon by the
parties.
(b) The Company shall grant to the Executive, effective as of the
Effective Date, 100,000 shares of Common Stock, of which 66,000 shares will be
restricted (such restricted portion, "Restricted Stock"). The grant shall
provide for, except as provided in Sections 10, 11, 12 and 13, the vesting of
the Restricted Stock at the rate of one-half (1/2) of the shares of Restricted
Stock on each of the first and second anniversaries of the Effective Date.
Except as set forth above, the Restricted Stock shall be subject to all other
terms and conditions of the Option Plan and the applicable Restricted Stock
agreement which shall reflect the terms set forth herein and which shall be
attached as Exhibit B hereto prior to the Effective Date, in the form agreed
upon by the parties.
8. Expenses. During the Employment Period, the Company shall promptly
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reimburse the Executive in accordance with the Company's policies for all
reasonable expenses (including first class travel) incurred by him in performing
services pursuant to the terms of this Agreement.
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9. Termination Benefits. Upon the earlier to occur of (x) the
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termination of the Executive's employment for any reason or (y) the end of the
Employment Period, the Executive shall be entitled to the following termination
benefits (the "Termination Benefits"):
(a) No later than five days following the Termination Date, the
Company shall pay to the Executive an amount equal to (i) all base salary for
the time period ending with the Termination Date and (ii) any and all monies
advanced in connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive on behalf of the Company for the
time period ending with the Termination Date.
(b) Except in the event of a termination by the Company for Cause or
by the Executive without Good Reason, from the Termination Date until the third
anniversary of the Termination Date, the Company shall arrange to provide the
Executive and his dependents (i) life, death, disability, accident and health
insurance benefits substantially similar to those provided to the Executive and
his dependents immediately prior to the Termination Date, at no greater after
tax cost to the Executive than the after tax cost to the Executive immediately
prior to such date, and (ii) other perquisites, including, without limitation,
financial counseling and tax planning services by AYCO or a company providing
comparable equivalent services, to the same extent provided to the Executive
prior to the Termination Date. Benefits
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otherwise receivable by the Executive pursuant to Section 9(b)(i) shall be
reduced to the extent benefits of the same type are received by or made
available to the Executive during the period the Executive is eligible to
receive benefits pursuant to such section (and any such benefits received by or
made available to the Executive shall be reported to the Company by the
Executive); provided, however, that the Company shall reimburse the Executive
for the excess, if any, of the cost of such benefits to the Executive over such
cost immediately prior to the Termination Date.
(c) Except in the event of the Executive's death, the Company shall
provide the Executive with outplacement services suitable to the Executive's
position for a period of one year commencing on the date the Executive first
uses such outplacement services.
(d) The Company shall pay or provide all other amounts and benefits to
which the Executive (or in the event of the Executive's death, the Executive's
surviving spouse or other beneficiary) may be entitled as compensatory fringe
benefits or under the terms of any benefit plan of the Company, pursuant to the
terms of the benefit plan or practice establishing such benefits.
10. Termination For Cause or Without Good Reason. If the Executive's
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employment is terminated during the Employment Period by the Company for Cause
or by the Executive without Good Reason, then the Executive shall be entitled to
receive Termination Benefits pursuant to Section 9 and shall not receive any
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compensation pursuant to Section 5 with respect to periods following the
Termination Date. Any portion of the Restricted Stock and the Option which is
unvested as of the Termination Date shall be forfeited and any portion of the
Option which is vested as of the Termination Date shall remain exercisable for
the remainder of the original term. In addition, no later than five (5) days
following the Termination Date, the Company shall pay to the Executive a cash
amount equal to the vested portion of the Retention Bonus Account as of the
Termination Date. The remainder of the Retention Bonus Account shall be
forfeited.
11. Termination for Good Reason or Without Cause. If the Executive's
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employment is terminated during the Employment Period (a) by the Executive for
Good Reason or (b) by the Company other than by reason of death, disability
pursuant to Section 13 hereof, or Cause (any such terminations to be subject to
the procedures set forth in Section 14 hereof), then the Executive shall be
entitled to receive Termination Benefits pursuant to Section 9 and the following
additional payments and benefits:
(i) No later than five (5) days following the Termination Date, the
Company shall pay to the Executive the Retention Bonus Account as of the
Termination Date;
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(ii) No later than five (5) days following the Termination Date, the
Company shall pay to the Executive the total amount of base salary payable
to the Executive for the remainder of the Employment Period; and
(iii) Immediately prior to the Termination Date, (x) each share of
Restricted Stock not then vested shall become fully vested and (y) each
option to acquire Common Stock then held by the Executive (including the
Option) shall become fully vested and exercisable as to all shares of
Common Stock subject thereto and shall remain exercisable for the remainder
of such option's original term.
12. Death. In the event of the Executive's death during the Employment
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Period, the Executive's estate, heirs and beneficiaries shall be entitled to
receive Termination Benefits pursuant to Section 9, and shall not receive any
compensation pursuant to Section 5 with respect to periods following the
Termination Date. Immediately prior to the Termination Date, (x) each share of
Restricted Stock not then vested shall become fully vested and (y) each option
to acquire Common Stock then held by the Executive (including, the Option) shall
become fully vested and exercisable and shall remain exercisable for the
remainder of such option's original term. In addition, no later than five (5)
days following the Termination Date, the Company shall pay to the Executive the
Retention Bonus Account as of the Termination Date.
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13. Termination for Disability. If, during the Employment Period, the
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Executive incurs a disability, as defined in the Option Plan, and, within thirty
days after the Company notifies the Executive in writing that it intends to
terminate the Executive's employment (which notice shall not constitute the
Notice of Termination contemplated below), the Executive shall not have returned
to the performance of the Executive's duties hereunder, the Company may
terminate the Executive's employment for purposes of this Agreement pursuant to
a Notice of Termination given in accordance with Section 14 hereof. If the
Executive's employment is terminated on account of the Executive's disability in
accordance with this Section, the Executive shall be entitled to receive
Termination Benefits pursuant to Section 9 and the Executive shall not receive
any compensation pursuant to Section 5 with respect to periods following the
Termination Date. Immediately prior to the Termination Date, (x) each share of
Restricted Stock not then vested shall become fully vested and (y) each option
to acquire Common Stock then held by the Executive (including, the Option) shall
become fully vested and exercisable and shall remain exercisable for the
remainder of such option's original term. In addition, no later than five (5)
days following the Termination Date, the Company shall pay to the Executive the
Retention Bonus Account as of the Termination Date.
14. Termination Notice and Procedure. Any termination by the Company or
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the Executive during the Employment Period shall be communicated by written
notice of termination ("Notice of Termination") to the Executive, if such Notice
is
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given by the Company, and to the Company, if such Notice is given by the
Executive, all in accordance with the following procedures and those set forth
in Section 26 hereof. Any Notice of Termination by the Company for Cause shall
be accompanied by a resolution duly adopted by at least two thirds (2/3) of the
directors of the Company (or any successor corporation) at a meeting held for
the purpose of considering such termination (after reasonable notice to the
Executive and an opportunity for the Executive, together with the Executive's
counsel, to be heard before the Board).
15. Excise Tax Gross-up.
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(a) If any of the payments or benefits received or to be received by
the Executive, whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company, Immunex Corporation, or any of
their affiliates (all such payments and benefits, excluding the Gross-Up
Payment, being hereinafter referred to as the "Total Payments") will be subject
to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), the
Company shall pay to the Executive an additional amount (the "Gross-Up Payment")
such that the net amount retained by the Executive, after deduction of any
Excise Tax on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into
account the phase out of itemized deductions and personal exemptions
attributable to the Gross-Up Payment,
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shall be equal to the Total Payments. The Gross-Up Payment shall be paid to the
Executive no later than the fifth day following the Termination Date (or if
there is no Termination Date, then the date on which the Gross-Up Payment is
calculated in accordance with this Section 15).
(b) For purposes of determining whether any of the Total Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the
Total Payments shall be treated as "parachute payments" (within the meaning of
section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax
Counsel") reasonably acceptable to the Executive and selected by the accounting
firm which is the Company's independent auditor (the "Auditor"), such payments
or benefits (in whole or in part) do not constitute parachute payments,
including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess
parachute payments" within the meaning of section 280G(b)(l) of the Code shall
be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of section
280G(b)(4)(B) of the Code) in excess of the base amount, within the meaning of
Section 2806(b)(3) of the Code (the "Base Amount"), allocable to such reasonable
compensation, or are otherwise not subject to the Excise Tax, and (iii) the
value of any noncash benefits or any deferred payment or benefit shall be
determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code. For purposes of
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determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Executive's residence on the Termination Date, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes.
(c) In the event that the Excise Tax is finally determined to be less
than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Executive shall repay to the Company, within five (5) business days
following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Executive), to the extent that such
repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Executive's taxable income and wages for purposes of federal,
state and local income and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment (including by reason of
any payment the existence or amount of which cannot be
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determined at the time of the Gross-Up Payment), the Company shall make an
additional Gross-Up Payment in respect of such excess (plus any interest,
penalties or additions payable by the Executive with respect to such excess)
within five (5) business days following the time that the amount of such excess
is finally determined. The Executive and the Company shall each reasonably
cooperate with the other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for Excise Tax with
respect to the Total Payments.
16. Confidentiality; Release; Other Agreements.
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(a) During and following the Executive's employment by the Company,
the Executive shall hold in confidence and not directly or indirectly disclose
or use or copy or make lists of any confidential information or proprietary data
of the Company, except to the extent authorized by the Board or required by any
court or administrative agency, other than to an employee of the Company or a
person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by the Executive of duties as an executive of the Company.
Confidential information shall not include any information known generally to
the public or any information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that of the
Company. All records, files, documents and materials, or copies thereof,
relating to the business of
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the Company which the Executive shall prepare, or use, or come into contact
with, shall be and remain the sole property of the Company and shall be promptly
returned to the Company upon termination of employment with the Company.
(b) Notwithstanding anything contained herein, the Executive shall not
be entitled to receive any payments or benefits under Section 9(b) or Section 11
hereof unless he first executes a written release substantially in the form
attached hereto as Exhibit C and such release has become effective.
(c) The Executive shall execute, prior to the Effective Date, the
Proprietary Information and Inventions Agreement and the Mutual Agreement to
Arbitrate Claims, in each case in the form generally used for senior Company
executives (collectively, the "Ancillary Agreements"), provided that
notwithstanding anything in such Ancillary Agreements to the contrary, in case
of conflicting provisions, the provisions of this Agreement shall control.
17. Legal Fees and Expenses; Indemnification.
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(a) The Company also shall pay to the Executive all legal fees and
expenses incurred by the Executive (a) in disputing any issue hereunder relating
to the termination of the Executive's employment or in seeking to obtain or
enforce any benefit or right provided by this Agreement (in each case, unless
the Executive is acting in bad faith) or (b) in connection with any tax audit or
proceeding to the extent attributable to the application of section 4999 of the
Code to any payment or benefit
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provided hereunder. Such payments shall be made within five (5) business days
after delivery of the Executive's written requests for payment accompanied with
such evidence of fees and expenses incurred as the Company reasonably may
require.
(b) To the fullest extent permitted by law, the Company shall
indemnify the Executive (including the advancement of expenses) for any
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, incurred by the Executive in connection with the defense of any
lawsuit or other claim to which he is made a party by reason of being an
officer, director or employee of the Company or any of its subsidiaries. During
the Employment Period and for at least three (3) years thereafter, the Company
shall use reasonable efforts to maintain customary director, officer and
professional liability insurance covering the Executive for acts and omissions
prior to and during the Employment Period. The existence or lack of any such
insurance shall not limit the Company's indemnification obligation.
18. No Set-Off or Counterclaim. Except as expressly provided herein, the
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amounts and benefits payable hereunder shall not be subject to set-off,
counterclaim, recoupment, defense or other claim which the Company may have
against him or anyone else. Except as provided in Section 17 of this Agreement,
all amounts payable by the Company hereunder shall be paid without notice or
demand. Each
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and every payment made hereunder by the Company shall be final, and the Company
will not seek to recover all or any part of such payment from the Executive, or
from whomsoever may be entitled thereto, for any reason whatsoever.
19. Successors.
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(a) If the Company sells, assigns or transfers all or substantially
all of its business and assets to any person or if the Company merges into or
consolidates or otherwise combines (where the Company does not survive such
combination) with any person (any such event, a "Sale of Business"), then the
Company shall cause such person, by written agreement in form and substance
reasonably satisfactory to the Executive, to expressly assume and agree to
perform from and after the date of such Sale of Business all of the terms,
conditions and provisions imposed by this Agreement upon the Company, and from
and after such Sale of Business all references to the "Company" in this
Agreement shall refer to such person. Failure of the Company to obtain such
agreement prior to the effective date of such Sale of Business shall be a breach
of this Agreement constituting "Good Reason" hereunder. The Executive shall, in
his discretion, be entitled to proceed against any or all of such persons, any
person which theretofore was such a successor to the Company (as defined in the
first paragraph of this Agreement) and the Company (as so defined) in any action
to enforce any rights of the Executive hereunder. This Agreement shall not be
assignable by the Company except to any
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party to a Sale of Business that expressly assumes this Agreement as provided
herein. This Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company.
(b) This Agreement and all rights of the Executive shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All amounts
payable to the Executive under the Agreement if the Executive had lived shall be
paid, in the event of the Executive's death, to the Executive's estate, heirs
and representatives; provided, however, that the foregoing shall not be
construed to modify any terms of any benefit plan of the Company that expressly
govern benefits under such plan in the event of the Executive's death.
20. Severability. The provisions of this Agreement shall be regarded as
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divisible, and if any of said provisions or any part hereof are declared invalid
or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
21. Entire Agreement. This Agreement, together with the Ancillary
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Agreements, constitute the whole agreement of the Company and the Executive
regarding the subject matter hereof. No agreements or representation, oral or
otherwise, express or implied, with respect to the subject matter of this
Agreement
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have been made by either party which are not expressly set forth in this
Agreement or the Ancillary Agreements.
22. Amendment. This Agreement may not be amended or modified at any time
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except by written instrument executed by the Company and the Executive.
23. Withholding. The Company shall be entitled to withhold from amounts
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to by paid to the Executive hereunder any federal, state or local withholding or
other taxes or charges which it is from time to time required to withhold.
24. Certain Rules of Construction. No party shall be considered as being
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responsible for the drafting of this Agreement for the purpose of applying any
rule construing ambiguities against the drafter or otherwise. No draft of this
Agreement shall be taken into account in construing this Agreement. Any
provision of this Agreement which requires an agreement in writing shall be
deemed to require that the writing in question be signed by the Executive and an
authorized representative of the Company.
25. Governing Law. This Agreement and the rights and obligations hereunder
-------------
shall be governed by and construed in accordance with the laws of the State of
Washington.
26. Notice. Notices given pursuant to this Agreement shall be in writing
------
and shall be deemed given when actually received by the Executive or actually
24
received by the Company's Secretary. If mailed, such notices shall be mailed by
United States registered or certified mail, return receipt requested, addressee
only, postage prepaid, if to the Company, to the Secretary of the Company at its
headquarters offices (currently located at Amgen, Inc., One Amgen Center Drive,
Thousand Oaks, CA 91320-1797) or if the Executive, at the address set forth
below the Executive's signature to this Agreement, or to such other address as
the party to be notified shall have theretofore given to the other party in
writing.
27. No Waiver. No waiver by either party at any time of any breach by the
---------
other party of, or compliance with, any condition or provision of this Agreement
to be performed by the other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time.
28. Headings. The headings herein contained are for reference only and
--------
shall not affect the meaning or interpretation of any provision of this
Agreement.
29. Counterparts. This Agreement may be executed in counterparts all of
------------
which shall be considered the same hereunder.
30. Survival. The obligations of the parties set forth in Sections 1, 9,
--------
10, 11, 12, 13, 15, 16, 17, 18, 19, 22 and 23 shall survive the termination of
the Employment Period and of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
/s/ Steven M. Odre /s/ Edward V. Fritzky
- ------------------------------ ----------------------------
AMGEN INC. EDWARD V. FRITZKY
By: Steven M. Odre
Title: Senior Vice President,
General Counsel and
Secretary
26
EXHIBIT C
WAIVER AND RELEASE OF CLAIMS AGREEMENT
--------------------------------------
YOU HAVE BEEN ADVISED TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
YOU MAY NOT SIGN THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE BEFORE
YOU TERMINATE EMPLOYMENT.
YOU HAVE [FORTY-FIVE] [TWENTY-ONE] DAYS AFTER RECEIVING THIS AGREEMENT
TO CONSIDER WHETHER TO SIGN IT, ALTHOUGH YOU MAY WAIVE THIS TIME PERIOD BY
SIGNING IT SOONER.
AFTER SIGNING THIS AGREEMENT, YOU HAVE ANOTHER SEVEN DAYS IN WHICH TO
REVOKE IT, AND IT DOES NOT TAKE EFFECT UNTIL THOSE SEVEN DAYS HAVE ENDED.
1. In consideration of, and subject to, the payments to be made to me
pursuant to the Employment Agreement between me and Amgen Inc. (the "Employment
Agreement"), the adequacy of which is hereby acknowledged, and which I
acknowledge that I would not otherwise be entitled to receive, on behalf of
myself and my heirs, representatives, executors, administrators, successors,
agents, and assigns, I hereby agree to and hereby do fully, completely,
unconditionally, and without limitation release, acquit, and forever discharge
Amgen Inc., all related or affiliated companies, and all of its or such related
or affiliated companies predecessors, successors, assigns, and parents
(collectively the "Company") and with respect to each such entity, its present
and former shareholders, parents, owners, officers, directors, agents, partners,
joint venturers, employees, servants, independent contractors, customers,
consultants, insurers, representatives, lawyers, employee benefit programs (and
the trustees, administrators, fiduciaries and insurers of such programs), and
all persons acting by, through, under, or in concert with them, or any of them
("Releasees"), both individually and collectively, of and from any and all
manner of action or actions, cause or causes of action, suits, rights, claims,
debts, liens, demands, contracts, promises, agreements, liabilities, claims,
damages, losses, costs, expenses, compensation, attorneys' fees, indemnities,
and obligations of every kind and nature, in law, equity, or otherwise, known or
unknown, suspected or unsuspected, disclosed and undisclosed, fixed or
contingent (hereinafter called "Claims"), which I have, may have, or now claim
to have, from the Releasees by reason of any matter, cause, or thing whatsoever,
from the beginning of time to the date hereof, including, without limiting the
generality of the foregoing, any Claims arising out of, based upon, or relating
to my recruitment, hire, employment, relocation, benefits, remuneration, or
termination by the Releasees, or any of them. As part of this Agreement, I
expressly release and waive any and all Claims arising out of any contract, tort
or other common-law theories, and any Claims under any local, state or federal
civil rights, labor, and employment laws, including but not limited to the
Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights
Act of 1964, the Post Civil War Civil Rights Acts (42 U.S.C. ss.ss. 1981-1988),
the Civil Rights Act of 1991, the Equal Pay Act, the Age Discrimination in
Employment Act ("ADEA"), the Americans with Disabilities Act, the Older
Workers' Benefit Protection Act ("OWBPA"), the Worker Adjustment and Retraining
Notification Act, the Rehabilitation Act of 1973, the Vietnam Veterans
Readjustment Assistance Act, the Uniformed Services Employment and Reemployment
Rights Act, the Fair Labor Standards Act, Executive Order 11246, the Family and
Medical Leave Act, the civil rights, employment and wage and hour laws of the
State of Washington including, but not limited to, RCW 49.48, 49.52, and 49.60
(all statutes as amended), or any other federal, state or local law, ordinance,
rule, or regulation of any kind, including but not limited to those governing
employment, discrimination in employment, termination of employment, or the
payment of wages and benefits.
2. Notwithstanding the foregoing or any other provision hereof,
nothing in this Waiver and Release of Claims Agreement (this "Agreement") shall
adversely affect (i) any Claims I may have under the ADEA which may arise after
I sign this Agreement; (ii) my rights under the Employment Agreement; (iii) my
rights to any vested benefits other than severance benefits to which I may be
entitled under plans, programs and arrangements of the Company or any subsidiary
or parent of the Company; (iv) my rights to indemnification, if any, under any
indemnification agreement, applicable law and the certificates of incorporation
and bylaws or comparable organizational documents of Immunex and any subsidiary
or parent of Immunex; and (v) my rights, if any, under any director's and
officer's liability insurance policy or professional malpractice insurance
policy covering me.
3. I understand that my employment with the Company has terminated
forever and I promise never to seek employment with the Company.
4. I acknowledge that I have signed this Agreement voluntarily,
knowingly, of my own free will and without reservation or duress, and that no
promises or representations, written or oral, have been made to me by any person
to induce me to do so other than the promise of payment set forth in paragraph 1
(one) above and the Company's acknowledgment of my rights reserved under the
paragraph 2 (two) above.
5. I acknowledge that I have been given not less than [forty-five
(45)] [twenty-one (21)] days to review and consider this Agreement. I waive any
right I might have to additional time beyond this consideration period within
which to consider this Agreement. I may revoke this Agreement seven days or less
after its execution by providing written notice to the Vice President of Human
Resources of the Company or its parent or successor.
6. I acknowledge that I have had the opportunity to consult with an
attorney or other advisor of my choice, at my own expense, and have been advised
by the Company or its parent or successor to do so if I choose.
7. For a period of one year after the date of termination of my
employment, I agree not to criticize, denigrate or otherwise disparage the
Company, any other Releasee, or any of the Company's products, processes,
experiments, policies, practices, standards of business conduct, or areas or
techniques of research; provided, however, that nothing in this Agreement shall
prohibit me from complying with any lawful subpoena or court order.
2
8. The provisions of this Agreement are severable. If any part of it
is found to be unenforceable, all other provisions shall remain fully valid and
enforceable.
9. This Agreement shall inure to the benefit of all Releasees and
their respective heirs, administrators, representatives, executors, successors,
and assigns.
10. I represent and warrant that I have not assigned or transferred,
or purported to assign or transfer, all or any part of any Claim released by
this Agreement. I represent and warrant that I have not filed or caused to be
filed any lawsuit, complaint, or charge with respect to any Claim released in
this Agreement, and I promise never to file or prosecute a lawsuit or other
complaint or charge asserting any Claims that are released in this Agreement. I
promise never to seek any damages, remedies, or other relief for myself
personally (any right to which I hereby waive and promise never to accept) by
filing or prosecuting a charge with any administrative agency with respect to
any Claim purportedly released by this Agreement. I promise never directly or
indirectly to bring or participate in an action against any Releasee under
California Business & Professions Code Section 17200 or under any other unfair
competition law of any jurisdiction. This paragraph 8 shall not apply to ADEA
claims if applying it would violate the ADEA or OWBPA.
11. I represent and warrant that I am 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 the Company of the federal False Claims Act (or any
similar state or federal qui tam statute). In addition, in order to ensure that
I have complied fully with my obligations under this paragraph 9, I hereby
covenant and agree that to the full extent permitted by law, I hereby waive and
release any and all rights or claims I may have to any proceeds or awards that I
may be entitled to under any qui tam proceeding brought against the Company. I
further agrees that I shall deliver any such money, proceeds, or awards to the
U.S. government.
12. This Agreement shall be governed and interpreted under federal law
and the laws of the State of Washington as applied to contracts entered into and
to be performed entirely within such state by residents thereof.
13. Finally, I acknowledge that I have carefully read this Agreement
and fully understand all of its terms. Except as set forth herein, this is the
entire agreement between the parties; it may not be modified or canceled in any
manner except by a writing signed by both Immunex or its parent or successor and
me. This Agreement is legally binding and enforceable.
3
I KNOWINGLY AND VOLUNTARILY SIGN THIS WAIVER AND RELEASE OF CLAIMS
AGREEMENT.
Signed:_______________________
Date:_________________________
______________________________
Edward V. Fritzky
Amgen Inc.
By:___________________________
Title:________________________
Date:_________________________
4