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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-12477
AMGEN INC.
(Exact name of registrant as specified in its charter)
Delaware 95-3540776
- ------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Amgen Center Drive, Thousand Oaks, California 91320-1799
- ------------------------------------------------- -----------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (805) 447-1000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
As of March 31, 2000, the registrant had 1,026,769,316 shares of Common Stock,
$0.0001 par value, outstanding.
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AMGEN INC.
INDEX
<TABLE>
<CAPTION>
Page No.
<S> <C> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements................. 3
Condensed Consolidated Statements of
Operations - three months
ended March 31, 2000 and 1999.............. 4
Condensed Consolidated Balance Sheets -
March 31, 2000 and December 31, 1999....... 5
Condensed Consolidated Statements of
Cash Flows - three months
ended March 31, 2000 and 1999.............. 6
Notes to Condensed Consolidated Financial
Statements................................. 7
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations........................... 14
PART II OTHER INFORMATION
Item 1. Legal Proceedings.................... 20
Item 6. Exhibits and Reports on Form 8-K..... 21
Signatures................................... 22
Index to Exhibits............................ 23
</TABLE>
2
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
The information in this report for the three months ended March 31, 2000
and 1999 is unaudited but includes all adjustments (consisting only of normal
recurring accruals, unless otherwise indicated) which Amgen Inc. ("Amgen" or the
"Company") considers necessary for a fair presentation of the results of
operations for those periods.
The condensed consolidated financial statements should be read in
conjunction with the Company's financial statements and the notes thereto
contained in the Company's Annual Report on Form 10-K for the year ended
December 31, 1999.
Interim results are not necessarily indicative of results for the full
fiscal year.
3
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AMGEN INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
----------------- ------------------
<S> <C> <C>
Revenues:
Product sales $ 697.6 $ 688.3
Corporate partner revenues 74.2 27.0
Royalty income 42.3 30.2
----------------- ------------------
Total revenues 814.1 745.5
----------------- ------------------
Operating expenses:
Cost of sales 85.7 92.4
Research and development 189.8 188.0
Selling, general and administrative 169.7 132.9
Loss of affiliates, net 16.4 2.8
----------------- ------------------
Total operating expenses 461.6 416.1
----------------- ------------------
Operating income 352.5 329.4
Other income (expense):
Interest and other income 36.4 18.5
Interest expense, net (4.2) (2.2)
----------------- ------------------
Total other income 32.2 16.3
----------------- ------------------
Income before income taxes 384.7 345.7
Provision for income taxes 118.5 98.5
----------------- ------------------
Net income $ 266.2 $ 247.2
================= ==================
Earnings per share:
Basic $ 0.26 $ 0.24
Diluted $ 0.25 $ 0.23
Shares used in calculation of earnings per share:
Basic 1,023.1 1,023.5
Diluted 1,085.7 1,080.9
</TABLE>
See accompanying notes.
4
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AMGEN INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In millions, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------------ -----------------
<S> <C> <C>
ASSETS
------
Current assets:
Cash and cash equivalents $ 125.8 $ 130.9
Marketable securities 1,353.8 1,202.1
Trade receivables, net 259.1 412.2
Inventories 237.6 184.3
Other current assets 177.3 135.8
------------------ -----------------
Total current assets 2,153.6 2,065.3
------------------ -----------------
Property, plant and equipment at cost, net 1,595.3 1,553.6
Investments in affiliated companies 122.6 132.8
Other equity investments 237.4 129.7
Other assets 155.8 196.2
------------------ -----------------
$4,264.7 $4,077.6
================== =================
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current liabilities:
Accounts payable $ 108.7 $ 83.4
Commercial paper 99.8 99.5
Accrued liabilities 522.2 648.2
------------------ -----------------
Total current liabilities 730.7 831.1
Long-term debt 223.0 223.0
Contingencies
Stockholders' equity:
Preferred stock; $0.0001 par value; 5 shares
authorized; none issued or outstanding - -
Common stock and additional paid-in capital;
$0.0001 par value; 1,500 shares authorized;
outstanding - 1,026.8 shares in 2000 and
1,017.9 shares in 1999 2,266.8 2,072.3
Retained earnings 1,007.1 966.0
Accumulated other comprehensive gain (loss) 37.1 (14.8)
------------------ -----------------
Total stockholders' equity 3,311.0 3,023.5
------------------ -----------------
$4,264.7 $4,077.6
================== =================
</TABLE>
See accompanying notes.
5
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AMGEN INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
------------- -------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 266.2 $ 247.2
Depreciation and amortization 50.8 44.4
Gain on equity investments (12.1) -
Loss of affiliates, net 16.4 2.8
Cash provided by (used in):
Trade receivables, net 153.1 (49.7)
Inventories (53.3) (6.4)
Other current assets (26.1) (8.3)
Accounts payable 25.3 (26.5)
Accrued liabilities (126.0) (2.8)
------------- -------------
Net cash provided by operating activities 294.3 200.7
------------- -------------
Cash flows from investing activities:
Purchases of property, plant and equipment (92.5) (76.3)
Proceeds from maturities of marketable securities - 10.3
Proceeds from sales of marketable securities 172.8 206.0
Purchases of marketable securities (326.1) (352.6)
Other (16.3) (0.9)
------------- -------------
Net cash used in investing activities (262.1) (213.5)
------------- -------------
Cash flows from financing activities:
Repayment of long-term debt - (6.0)
Net proceeds from issuance of common stock upon the
exercise of employee stock options and in
connection with an employee stock purchase plan 126.7 98.7
Tax benefits related to employee stock option
exercises 67.8 50.3
Repurchases of common stock (225.1) (202.5)
Other (6.7) (14.7)
------------- -------------
Net cash used in financing activities (37.3) (74.2)
------------- -------------
Decrease in cash and cash equivalents (5.1) (87.0)
Cash and cash equivalents at beginning of period 130.9 201.1
------------- -------------
Cash and cash equivalents at end of period $ 125.8 $ 114.1
============= =============
</TABLE>
See accompanying notes.
6
<PAGE>
AMGEN INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2000
1. Summary of significant accounting policies
Business
Amgen Inc. ("Amgen" or the "Company") is a global biotechnology company
that discovers, develops, manufactures and markets human therapeutics based on
advances in cellular and molecular biology.
Principles of consolidation
The consolidated financial statements include the accounts of the Company
and its wholly owned subsidiaries as well as affiliated companies for which the
Company has a controlling financial interest and exercises control over their
operations ("majority controlled affiliates"). All material intercompany
transactions and balances have been eliminated in consolidation. Investments in
affiliated companies which are 50% or less owned and where the Company exercises
significant influence over operations are accounted for using the equity method.
All other equity investments are accounted for under the cost method. The
caption "Loss of affiliates, net" includes Amgen's equity in the operating
results of affiliated companies and the minority interest others hold in the
operating results of Amgen's majority controlled affiliates.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined
in a manner which approximates the first-in, first-out (FIFO) method.
Inventories consist of currently marketed products and product candidates which
the Company expects to commercialize. The inventory balance of such product
candidates totaled $42.5 million and $20.3 million as of March 31, 2000 and
December 31, 1999, respectively. Inventories are shown net of applicable
reserves and allowances. Inventories consist of the following (in millions):
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------- --------------
<S> <C> <C>
Raw materials $ 40.5 $ 37.5
Work in process 145.5 96.6
Finished goods 51.6 50.2
------------- --------------
$237.6 $184.3
============= ==============
</TABLE>
7
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Product sales
Product sales primarily consist of sales of EPOGEN(R) (Epoetin alfa) and
NEUPOGEN(R) (Filgrastim).
The Company has the exclusive right to sell Epoetin alfa for dialysis,
diagnostics and all non-human uses in the United States. The Company sells
Epoetin alfa under the brand name EPOGEN(R). Amgen has granted to Ortho
Pharmaceutical Corporation (which has assigned its rights under the product
license agreement to Ortho Biotech, Inc.), a subsidiary of Johnson & Johnson
("Johnson & Johnson"), a license relating to Epoetin alfa for sales in the
United States for all human uses except dialysis and diagnostics. Pursuant to
this license, Amgen does not recognize product sales it makes into the exclusive
market of Johnson & Johnson and does recognize the product sales made by Johnson
& Johnson into Amgen's exclusive market. Sales in Amgen's exclusive market and
adjustments thereto are derived from Company shipments and from third-party data
on shipments to end users and their usage (see Note 6, "Contingencies - Johnson
& Johnson arbitrations"). Sales of the Company's other products are recognized
when shipped.
Foreign currency transactions
The Company has a program to manage foreign currency risk. As part of this
program, it has purchased foreign currency option and forward contracts to hedge
against possible reductions in values of certain anticipated foreign currency
cash flows generally over the next 12 months, primarily resulting from its sales
in Europe. At March 31, 2000, the Company had option and forward contracts to
exchange foreign currencies for U.S. dollars of $24 million and $65 million,
respectively, all having maturities of eight months or less. The option
contracts, which have only nominal intrinsic value at the time of purchase, are
designated as effective hedges of anticipated foreign currency transactions for
financial reporting purposes and accordingly, the net gains on such contracts
are deferred and recognized in the same period as the hedged transactions. The
forward contracts do not qualify as hedges for financial reporting purposes and
accordingly, are marked-to-market. Net gains on option contracts (including
option contracts for hedged transactions whose occurrence are no longer
probable) and changes in market values of forward contracts are reflected in
"Interest and other income". The deferred premiums on option contracts and fair
values of forward contracts are included in "Other current assets".
The Company has additional foreign currency forward contracts to hedge
exposures to foreign currency fluctuations of certain assets and liabilities
denominated in foreign currencies. At March 31, 2000, the Company had forward
contracts to exchange foreign currencies for U.S. dollars of $35 million, all
having maturities of less than one month. These contracts are designated as
effective hedges and accordingly, gains and losses on these forward contracts
are recognized in the same period the offsetting gains and losses of hedged
assets and liabilities are realized and recognized. The fair values of the
forward contracts are included in the corresponding captions of the hedged
assets and liabilities. Gains and losses on
8
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forward contracts, to the extent they differ in amount from the hedged assets
and liabilities, are included in "Interest and other income".
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities". The date required for adoption of this
statement has been delayed until fiscal years beginning after June 15, 2000.
Because of the Company's minimal use of derivatives, management anticipates that
the adoption of this new statement will not have a significant effect on
earnings or the financial position of the Company.
Employee stock option and stock purchase plans
The Company's employee stock option and stock purchase plans are accounted
for under Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees".
Earnings per share
Basic earnings per share is based upon the weighted-average number of
common shares outstanding. Diluted earnings per share is based upon the
weighted-average number of common shares and dilutive potential common shares
outstanding. Potential common shares are outstanding options under the
Company's employee stock option plans and potential issuances of stock under the
employee stock purchase plan which are included under the treasury stock method.
9
<PAGE>
The following table sets forth the computation for basic and diluted
earnings per share (in millions, except per share information):
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
------------- -------------
<S> <C> <C>
Numerator for basic and diluted
earnings per share - net income $ 266.2 $ 247.2
============= =============
Denominator:
Denominator for basic earnings
per share - weighted-average shares 1,023.1 1,023.5
Effect of dilutive securities -
employee stock options and stock
issuances under the employee stock
purchase plan 62.6 57.4
------------- -------------
Denominator for diluted earnings
per share - adjusted weighted-
average shares 1,085.7 1,080.9
============= =============
Basic earnings per share $ 0.26 $ 0.24
Diluted earnings per share $ 0.25 $ 0.23
</TABLE>
Use of estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results may differ from those estimates.
Basis of presentation
The financial information for the three months ended March 31, 2000 and
1999 is unaudited but includes all adjustments (consisting only of normal
recurring accruals, unless otherwise indicated) which the Company considers
necessary for a fair presentation of the results of operations for these
periods. Interim results are not necessarily indicative of results for the full
fiscal year.
Reclassification
Certain prior year amounts have been reclassified to conform to the current
year presentation.
10
<PAGE>
2. Debt
As of March 31, 2000, the Company had $223 million of unsecured long-term
debt securities outstanding. These unsecured long-term debt securities
consisted of: 1) $100 million of debt securities that bear interest at a fixed
rate of 6.5% and mature in 2007 that were issued in December 1997 under a $500
million debt shelf registration (the "Shelf"), 2) $100 million of debt
securities that bear interest at a fixed rate of 8.1% and mature in 2097, and 3)
$23 million of debt securities that bear interest at a fixed rate of 6.2% and
mature in 2003. Under the Shelf, all of the remaining $400 million of debt
securities available for issuance may be offered under the Company's medium-term
note program from time to time with terms to be determined by market conditions.
The Company has a commercial paper program which provides for unsecured
short-term borrowings up to an aggregate of $200 million. As of March 31, 2000,
commercial paper with a face amount of $100 million was outstanding. These
borrowings had maturities of less than one month and had effective interest
rates averaging 5.6%.
The Company also has an unsecured $150 million credit facility that expires
on May 28, 2003. As of March 31, 2000, no amounts were outstanding under this
line of credit.
3. Income taxes
The provision for income taxes consists of the following (in millions):
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
--------------- ------------
<S> <C> <C>
Federal (including U.S. possessions) $108.9 $90.7
State 9.6 7.8
--------------- ------------
$118.5 $98.5
=============== ============
</TABLE>
The Company's effective tax rate for the three months ended March 31, 2000
was 30.8% compared with 28.5% for the same period last year. The increase in
the effective tax rate in the current year is primarily due to an increase in
the current year's expected pretax income without corresponding increases in the
tax benefits associated with the Company's Puerto Rico operations and research
and experimentation credits.
4. Stockholders' equity
During the three months ended March 31, 2000, the Company repurchased 3.5
million shares of its common stock at a total cost of
11
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$225.1 million under its common stock repurchase program. In October 1999, the
Board of Directors authorized the Company to repurchase up to $2 billion of
common stock through December 31, 2000, replacing the remaining amount
authorized in October 1998. The amount the Company spends on and the number of
shares repurchased each quarter varies based on a variety of factors, including
the stock price and blackout periods in which the Company is restricted from
repurchasing shares. As of March 31, 2000, $1,423.1 million was available for
stock repurchases. Stock repurchased under the program is retired.
5. Comprehensive income
During the three months ended March 31, 2000 and 1999, total comprehensive
income was $318.1 million and $234.7 million, respectively. The Company's other
comprehensive income/loss is comprised of unrealized gains and losses on the
Company's available-for-sale securities and foreign currency translation
adjustments.
6. Contingencies
Johnson & Johnson arbitrations
In September 1985, the Company granted Johnson & Johnson's affiliate, Ortho
Pharmaceutical Corporation, a license relating to certain patented technology
and know-how of the Company to sell a genetically engineered form of recombinant
human erythropoietin, called Epoetin alfa, throughout the United States for all
human uses except dialysis and diagnostics. A number of disputes have arisen
between Amgen and Johnson & Johnson as to their respective rights and
obligations under the various agreements between them, including the agreement
granting the license (the "License Agreement").
A dispute between Amgen and Johnson & Johnson that has been the subject of
an arbitration proceeding relates to the audit methodology currently employed by
the Company to account for Epoetin alfa sales. The Company and Johnson & Johnson
are required to compensate each other for Epoetin alfa sales that either party
makes into the other party's exclusive market, sometimes described as
"spillover" sales. The Company has established and is employing an audit
methodology to measure each party's spillover sales and to allocate the net
profits from those sales to the appropriate party. The arbitrator in this matter
(the "Arbitrator") issued an opinion adopting the Company's audit methodology
with certain adjustments and, subsequently, issued his final order confirming
that the Company was the successful party in the arbitration. Pursuant to the
final order in the arbitration, an independent panel was formed principally (i)
to address ongoing challenges to the survey results for the years 1995 through
1999 and (ii) to refine the procedures for measuring the erythropoietin market
as may be necessary. Johnson & Johnson has brought challenges under this
procedure to certain survey results for certain periods. As a result of
decisions made by this independent panel regarding certain of these challenges
as well as other reduced uncertainties, the Company has
12
<PAGE>
reduced amounts previously provided for potential spillover liabilities by $49
million in the third quarter of 1999 and $23 million in the fourth quarter of
1998.
Because the Arbitrator ruled that the Company was the successful party in
the arbitration, Johnson & Johnson was ordered to pay to the Company all costs
and expenses, including reasonable attorneys' fees, that the Company incurred in
the arbitration as well as one-half of the audit costs. The Company submitted a
bill for such costs and expenses incurred over an eight year period in the
amount of approximately $110 million. Johnson & Johnson contested substantially
all such costs and expenses. On January 26, 2000, the Arbitrator ruled that the
Company is entitled to recover approximately $77.5 million of its costs and
expenses from Johnson & Johnson. On October 26, 1998, Johnson & Johnson filed a
petition in the Circuit Court of Cook County, Illinois seeking to vacate or
modify the Arbitrator's award to the Company of all costs and expenses,
including reasonable attorney's fees and costs, that the Company incurred in the
arbitration. The Company has filed a motion to dismiss Johnson & Johnson's
petition. That motion remains pending. Due to remaining uncertainties the
Company has not recognized any benefit from the recovery of attorneys' fees and
costs or audit costs.
The Company has filed a demand in the arbitration to terminate Johnson &
Johnson's rights under the License Agreement and to recover damages for breach
of the License Agreement based on the Company's claim that Johnson & Johnson has
intentionally sold PROCRIT(R) (the brand name under which Johnson & Johnson
sells Epoetin alfa) into the Company's exclusive dialysis market. Pursuant to
the Arbitrator's ruling, discovery has commenced. Both the Company and Johnson
& Johnson filed motions for summary judgment which were argued in January 2000.
On March 10, 2000, the Arbitrator denied both motions for summary judgment. A
trial date has been set for February 2001. The Company is unable to predict at
this time the outcome of its demand for termination of the License Agreement or
when it will be resolved.
While it is not possible to predict accurately or determine the eventual
outcome of the above described legal matters or various other legal proceedings
(including patent disputes) involving Amgen, the Company believes that the
outcome of these proceedings will not have a material adverse effect on its
annual financial statements.
13
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Liquidity and Capital Resources
The Company had cash, cash equivalents and marketable securities of
$1,479.6 million at March 31, 2000, compared with $1,333 million at December 31,
1999. Cash provided by operating activities has been and is expected to
continue to be the Company's primary source of funds. During the three months
ended March 31, 2000, operations provided $294.3 million of cash compared with
$200.7 million during the same period last year.
Capital expenditures totaled $92.5 million for the three months ended March
31, 2000, compared with $76.3 million for the same period a year ago. The
Company anticipates spending approximately $450 million to $550 million in 2000
on capital projects and equipment to expand the Company's global operations.
The Company receives cash from the exercise of employee stock options and
proceeds from the sale of stock by Amgen pursuant to the employee stock purchase
plan. During the three months ended March 31, 2000, employee stock option
exercises, their related tax benefits and proceeds from the sale of stock by
Amgen pursuant to the employee stock purchase plan provided $194.5 million of
cash compared with $149 million for the same period last year. Proceeds from
the exercise of employee stock options and their related tax benefits will vary
from period to period based upon, among other factors, fluctuations in the
market value of the Company's stock relative to the exercise price of such
options.
The Company has a stock repurchase program primarily to reduce the dilutive
effect of its employee stock option and stock purchase plans. During the three
months ended March 31, 2000, the Company purchased 3.5 million shares of its
common stock at a cost of $225.1 million compared with 5.9 million shares
purchased at a cost of $202.5 million during the same period last year. In
October 1999, the Board of Directors authorized the Company to repurchase up to
$2 billion of common stock through December 31, 2000, replacing the remaining
amount authorized in October 1998. The amount the Company spends on and the
number of shares repurchased each quarter varies based on a variety of factors,
including the stock price and blackout periods in which the Company is
restricted from repurchasing shares. As of March 31, 2000, $1,423.1 million was
available for stock repurchases.
To provide for financial flexibility and increased liquidity, the Company
has established several sources of debt financing. As of March 31, 2000, the
Company had $223 million of unsecured long-term debt securities outstanding.
These unsecured long-term debt securities consisted of: 1) $100 million of debt
securities that bear interest at a fixed rate of 6.5% and mature in 2007 that
were issued in December 1997 under a $500 million debt shelf registration (the
"Shelf"), 2) $100 million of debt securities that bear interest at a fixed rate
of 8.1% and mature in 2097 and 3) $23 million of debt securities that bear
interest at a fixed rate of 6.2% and mature in
14
<PAGE>
2003. Under the Shelf, all of the remaining $400 million of debt securities
available for issuance may be offered under the Company's medium-term note
program.
The Company's sources of debt financing also include a commercial paper
program which provides for unsecured short-term borrowings up to an aggregate
face amount of $200 million. As of March 31, 2000, commercial paper with a face
amount of $100 million was outstanding. These borrowings had maturities of less
than one month and had effective interest rates averaging 5.6%. In addition,
the Company has an unsecured $150 million credit facility that expires on May
28, 2003. This credit facility supports the Company's commercial paper program.
As of March 31, 2000, no amounts were outstanding under this line of credit.
The primary objectives for the Company's investment portfolio are liquidity
and safety of principal. Investments are made to achieve the highest rate of
return to the Company, consistent with these two objectives. The Company's
investment policy limits investments to certain types of instruments issued by
institutions with investment grade credit ratings and places restrictions on
maturities and concentration by type and issuer. The Company invests its excess
cash in securities with varying maturities to meet projected cash needs.
The Company believes that existing funds, cash generated from operations
and existing sources of debt financing are adequate to satisfy its working
capital and capital expenditure requirements for the foreseeable future, as well
as to support its stock repurchase program. However, the Company may raise
additional capital from time to time.
Results of Operations
Product sales
Product sales were $697.6 million during the three months ended March 31,
2000, an increase of $9.3 million or 1% over the same period last year.
Quarterly product sales volume is influenced by a number of factors, including
underlying demand and wholesaler inventory management practices.
EPOGEN(R) (Epoetin alfa)
EPOGEN(R) sales were $440.4 million for the three months ended March 31,
2000, an increase of $45.5 million or 12% over the same period last year. This
increase was primarily due to higher demand. Sales in the first quarter of 2000
were adversely impacted by approximately $16 million of year 2000-related sales
to wholesalers in the fourth quarter of 1999 for which the Company provided
extended payment terms, as previously reported. The Company believes that sales
in the first quarter of 2000 also were adversely impacted by dialysis provider
inventory drawdowns of approximately $20 million due to additional year-end
stockpiling. The Company
15
<PAGE>
believes that some of this dialysis provider stockpiling may have been due to
year 2000 concerns and year-end contract expirations.
NEUPOGEN(R) (Filgrastim)
Worldwide NEUPOGEN(R) sales were $250 million for the three months ended
March 31, 2000, a decrease of $37 million or 13% from the same period last year.
Sales in the first quarter of 2000 were adversely impacted by approximately $29
million of year 2000-related sales to wholesalers in the fourth quarter of 1999
for which the Company provided extended payment terms, as previously reported.
The Company believes that sales in the first quarter of 2000 also were adversely
impacted by additional wholesaler inventory drawdowns of approximately $30
million. In addition, sales in the current year period were reduced by
approximately $8 million due to the negative impact of the stronger U.S. dollar
on the Company's international NEUPOGEN(R) sales. These decreases were partially
offset by higher demand, which grew at a low double-digit rate.
Other product sales
Other product sales primarily consist of INFERGEN(R) (Interferon alfacon-
1). INFERGEN(R) sales were $6.9 million for the three months ended March 31,
2000, an increase of $0.6 million or 10% over the same period last year.
INFERGEN(R) was launched in October 1997 for the treatment of chronic hepatitis
C virus infection. There are existing treatments, including combination
therapy, for this infection against which INFERGEN(R) competes. The Company
cannot predict the extent to which it will maintain its share or further
penetrate this market.
Corporate partner revenues
During the three months ended March 31, 2000, corporate partner revenues
increased $47.2 million or 175% compared with the same period last year. This
increase was primarily due to a payment from Kirin-Amgen, Inc. related to the
completion of the NESP renal development program.
Cost of sales
Cost of sales as a percentage of product sales was 12.3% and 13.4% for the
three months ended March 31, 2000 and 1999, respectively. This decrease as a
percentage of product sales was due in part to increased manufacturing
efficiencies.
16
<PAGE>
Research and development
During the three months ended March 31, 2000, research and development
expenses increased $1.8 million or 1% compared with the same period last year.
This increase was primarily due to higher staff-related costs necessary to
support ongoing product development activities and higher clinical trial costs.
These increases were substantially offset by a reduction in clinical
manufacturing and product licensing costs and the impact of a property tax
refund in the current year.
Selling, general and administrative
Selling, general and administrative expenses increased $36.8 million or 28%
during the three months ended March 31, 2000 compared with the same period last
year. This increase was primarily due to higher staff-related costs and outside
marketing expenses as the Company continues to support its existing products and
prepares for anticipated new product launches.
Loss of affiliates, net
During the three months ended March 31, 2000, loss of affiliates, net
increased $13.6 million or 486% compared with the same period last year. This
increase was primarily due to higher expenses for Kirin-Amgen, Inc. (see "-
Corporate partner revenues").
Interest and other income
During the three months ended March 31, 2000, interest and other income
increased $17.9 million or 97% compared with the same period last year. This
increase was primarily due to gains realized on the Company's portfolio of
equity investments and increased interest income generated from the Company's
investment portfolio as a result of higher average cash balances and higher
interest rates.
Income taxes
The Company's effective tax rate for the three months ended March 31, 2000
was 30.8% compared with 28.5% for the same period last year. The increase in
the effective tax rate in the current year is primarily due to an increase in
the current year's expected pretax income without corresponding increases in the
tax benefits associated with the Company's Puerto Rico operations and research
and experimentation credits.
Foreign currency transactions
The Company has a program to manage certain portions of its exposure to
fluctuations in foreign currency exchange rates arising from international
operations. The Company generally hedges the receivables and payables with
foreign currency forward contracts, which typically mature within one to three
months. The Company uses foreign currency option and forward contracts which
generally expire within 12 months to hedge certain anticipated future sales and
expenses. At March 31, 2000, outstanding foreign currency option and forward
contracts totaled $24 million and $100 million, respectively.
17
<PAGE>
Financial Outlook
The Company expects the EPOGEN(R) sales growth rate in 2000 to be in the
low teens due to higher demand partially offset by dialysis provider inventory
drawdowns and wholesaler inventory effects in the first quarter of 2000 (see
"Results of Operations - Product sales - EPOGEN(R) (Epoetin alfa)"). As average
hematocrits have risen, the rate of demand growth has slowed and the Company
expects this trend to continue in the future. Patients receiving treatment for
end stage renal disease are covered primarily under medical programs provided by
the federal government. Therefore, EPOGEN(R) sales may also be affected by
future changes in reimbursement rates or a change in the basis for reimbursement
by the federal government.
In their fiscal year 2001 budget, the Clinton administration has proposed a
Medicare cost savings plan which includes a provision for cutting Medicare
reimbursement of EPOGEN(R) by 10%. This proposal will be addressed during the
federal government's fiscal year 2001 budget process. The Company believes the
proposal, if enacted, would primarily affect dialysis providers that use
EPOGEN(R) and it is difficult to predict its impact on Amgen.
The Company expects the NEUPOGEN(R) sales growth rate in 2000 to be in the
mid-single digits due to higher demand partially offset by wholesaler inventory
effects in the first quarter of 2000 (see "Results of Operations - Product
sales - NEUPOGEN(R) (Filgrastim)"). Future NEUPOGEN(R) sales growth is dependent
primarily upon further penetration of existing markets, the effects of
competitive products and the timing and nature of additional indications for
which the product may be approved. NEUPOGEN(R) usage is expected to continue to
be affected by cost containment pressures from governments and private insurers
on health care providers worldwide. In addition, reported NEUPOGEN(R) sales will
continue to be affected by changes in foreign currency exchange rates. In both
domestic and foreign markets, sales of NEUPOGEN(R) are dependent, in part, on
the availability of reimbursement from third party payors such as governments
(for example, Medicare and Medicaid programs in the U.S.) and private insurance
plans. Therefore, NEUPOGEN(R) sales may also be affected by future changes in
reimbursement rates or changes in the bases for reimbursement.
In their fiscal year 2001 budget, the Clinton administration has proposed a
reduction in the basis upon which Medicare reimburses for outpatient
prescription drugs from the current 95% of average wholesale price ("AWP") to
83% of AWP. This proposal would impact reimbursement of NEUPOGEN(R). The
Company believes that this new recommendation, if enacted, would primarily
affect customers that use NEUPOGEN(R) and it is difficult to predict its impact
on Amgen.
18
<PAGE>
INFERGEN(R) (Interferon alfacon-1) was launched in October 1997 for the
treatment of chronic hepatitis C virus infection. There are other treatments,
including combination therapy, for this infection against which INFERGEN(R)
competes. The Company cannot predict the extent to which it will maintain its
share or further penetrate this market.
In 2000, SG&A expenses are expected to significantly increase as the
Company continues to support its existing products and prepares for anticipated
new product launches.
The Company expects the growth rate for total product sales in 2000 to be
in the high single digits. For 2000, Amgen expects earnings per share to be in
the range of $1.06 to $1.08. Estimates of future product sales, operating
expenses and earnings per share are necessarily speculative in nature and are
difficult to predict with accuracy.
Except for the historical information contained herein, the matters
discussed herein are by their nature forward-looking. Investors are cautioned
that forward-looking statements or projections made by the Company, including
those made in this document, are subject to risks and uncertainties that may
cause actual results to differ materially from those projected. Reference is
made in particular to forward-looking statements regarding product sales,
earnings per share and expenses. Amgen operates in a rapidly changing
environment that involves a number of risks, some of which are beyond the
Company's control. Future operating results and the Company's stock price may
be affected by a number of factors, including, without limitation: (i) the
results of preclinical and clinical trials; (ii) regulatory approvals of product
candidates, new indications and manufacturing facilities; (iii) reimbursement
for Amgen's products by governments and private payors; (iv) health care
guidelines and policies relating to Amgen's products; (v) intellectual property
matters (patents) and the results of litigation; (vi) competition; (vii)
fluctuations in operating results and (viii) rapid growth of the Company. These
factors and others are discussed herein and in the sections appearing in "Item
1. Business - Factors That May Affect Amgen" in the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 which sections are incorporated
herein by reference and filed as an exhibit hereto.
Legal Matters
The Company is engaged in arbitration proceedings with one of its
licensees. For a discussion of these matters, see Note 6 to the Condensed
Consolidated Financial Statements.
19
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
The Company is engaged in arbitration proceedings with one of its
licensees. For a discussion of these matters, see Note 6 to the Condensed
Consolidated Financial Statements, "Contingencies". These matters and other
legal proceedings are also reported in the Company's Annual Report on Form 10-K
for the year ended December 31, 1999, with material developments since December
31, 1999 described below. While it is not possible to predict accurately or to
determine the eventual outcome of these matters, the Company believes that the
outcome of these proceedings will not have a material adverse effect on the
annual financial statements of the Company.
Genentech litigation
Trial is scheduled for December 4, 2000 in the United States District Court
for the Northern District of California.
Transkaryotic Therapies and Aventis S.A. litigation
Amgen's motion for summary judgment of literal infringement was granted by
the United States District Court in Boston, Massachusetts (the "Massachusetts
District Court") on April 26, 2000 with respect to claim 1 of U.S. Patent No.
5,955,422. Also on April 26, 2000, the Massachusetts District Court denied
Amgen's motion for summary judgment with respect to claims 1 and 4 of U.S.
Patent No. 5,756,349 and deferred decision on the infringement of that patent
until trial. Amgen's motion for summary judgment of validity on three of the
patents and defendants' motion for non-infringement of other claims are pending
decision by the Massachusetts District Court. Also pending is Amgen's motion for
summary judgment of no inequitable conduct. Trial is scheduled to begin May 15,
2000 in the Massachusetts District Court.
Securities litigation
On April 12, 2000, the United States District Court for the Central
District of California (the "Central District Court") held a final settlement
hearing. On April 20, 2000, the Central District Court entered a final judgment
approving the settlement and an order dismissing the litigation with prejudice.
Johnson & Johnson arbitrations
The Company is engaged in arbitration proceedings with one of its
licensees. See Note 6 to the Condensed Consolidated Financial Statements,
"Contingencies - Johnson & Johnson arbitrations".
20
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Reference is made to the Index to Exhibits included herein.
(b) Reports on Form 8-K - none
21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Amgen Inc.
(Registrant)
Date: 4/27/00 By:/s/Kathryn E. Falberg
- ------------------ -------------------------------
Kathryn E. Falberg
Senior Vice President, Finance
and Chief Financial Officer
Date: 4/27/00 By:/s/Marc M.P. de Garidel
- ------------------ -------------------------------
Marc M.P. de Garidel
Vice President, Controller and
Chief Accounting Officer
22
<PAGE>
AMGEN INC.
INDEX TO EXHIBITS
Exhibit No. Description
3.1 Restated Certificate of Incorporation as amended. (17)
3.2 Amended and Restated Bylaws. (25)
3.3 Certificate of Amendment of Restated Certificate of Incorporation.
(25)
3.4 Certificate of Amendment of Certificate of Designations of Series A
Junior Participating Preferred Stock. (25)
4.1 Indenture dated January 1, 1992 between the Company and Citibank
N.A., as trustee. (8)
4.2 First Supplement to Indenture, dated February 26, 1997 between the
Company and Citibank N.A., as trustee. (14)
4.3 Officer's Certificate pursuant to Sections 2.1 and 2.3 of the
Indenture, as supplemented, establishing a series of securities "8-
1/8% Debentures due April 1, 2097." (16)
4.4 8-1/8% Debentures due April 1, 2097. (16)
4.5 Form of stock certificate for the common stock, par value $.0001 of
the Company. (17)
4.6 Officer's Certificate pursuant to Sections 2.1 and 2.3 of the
Indenture, dated as of January 1, 1992, as supplemented by the First
supplemental Indenture, dated as of February 26, 1997, each between
the Company and Citibank, N.A., as Trustee, establishing a series of
securities entitled "6.50% Notes Due December 1, 2007". (19)
4.7 6.50% Notes Due December 1, 2007 described in Exhibit 4.6. (19)
4.8 Corporate Commercial Paper - Master Note between and among Amgen
Inc., as Issuer, Cede & Co., as nominee of The Depository Trust
Company and Citibank, N.A. as Paying Agent. (22)
10.1 Company's Amended and Restated 1991 Equity Incentive Plan. (25)
10.2 Sixth Amendment to the Company's Amended and Restated Retirement and
Savings Plan as amended and restated April 1, 1996. (24)
10.3 Shareholder's Agreement of Kirin-Amgen, Inc., dated May 11, 1984,
between the Company and Kirin Brewery Company, Limited (with certain
confidential information deleted therefrom). (1)
10.4 Amendment Nos. 1, 2, and 3, dated March 19, 1985, July 29, 1985 and
December 19, 1985, respectively, to the Shareholder's Agreement of
Kirin-Amgen, Inc., dated May 11, 1984 (with certain confidential
information deleted therefrom). (3)
10.5 Product License Agreement, dated September 30, 1985, and Technology
License Agreement, dated, September 30, 1985 between the Company and
Ortho Pharmaceutical Corporation
23
<PAGE>
(with certain confidential information deleted therefrom). (2)
10.6 Product License Agreement, dated September 30, 1985, and Technology
License Agreement, dated September 30, 1985 between Kirin-Amgen,
Inc. and Ortho Pharmaceutical Corporation (with certain confidential
information deleted therefrom). (3)
10.7 Company's Amended and Restated Employee Stock Purchase Plan. (12)
10.8 Research, Development Technology Disclosure and License Agreement
PPO, dated January 20, 1986, by and between the Company and Kirin
Brewery Co., Ltd. (4)
10.9 Amendment Nos. 4 and 5, dated October 16, 1986 (effective July 1,
1986) and December 6, 1986 (effective July 1, 1986), respectively,
to the Shareholders Agreement of Kirin-Amgen, Inc. dated May 11,
1984 (with certain confidential information deleted therefrom). (5)
10.10 Assignment and License Agreement, dated October 16, 1986, between
the Company and Kirin-Amgen, Inc. (with certain confidential
information deleted therefrom). (5)
10.11 G-CSF European License Agreement, dated December 30, 1986, between
Kirin-Amgen, Inc. and the Company (with certain confidential
information deleted therefrom). (5)
10.12 Research and Development Technology Disclosure and License
Agreement: GM-CSF, dated March 31, 1987, between Kirin Brewery
Company, Limited and the Company (with certain confidential
information deleted therefrom). (5)
10.13 Company's Amended and Restated 1988 Stock Option Plan. (12)
10.14 Company's Amended and Restated Retirement and Savings Plan. (12)
10.15 Amendment, dated June 30, 1988, to Research, Development, Technology
Disclosure and License Agreement: GM-CSF dated March 31, 1987,
between Kirin Brewery Company, Limited and the Company. (6)
10.16 Agreement on G-CSF in Certain European Countries, dated January 1,
1989, between Amgen Inc. and F. Hoffmann-La Roche & Co. Limited
Company (with certain confidential information deleted therefrom).
(7)
10.17 Partnership Purchase Agreement, dated March 12, 1993, between the
Company, Amgen Clinical Partners, L.P., Amgen Development
Corporation, the Class A limited partners and the Class B limited
partner. (9)
10.18 Amgen Inc. Supplemental Retirement Plan (As Amended and Restated
Effective November 1, 1999). (26)
10.19 Promissory Note of Mr. Kevin W. Sharer, dated June 4, 1993. (10)
10.20 Amended and Restated Amgen Performance Based Management Incentive
Plan. (25)
10.21 Credit Agreement, dated as of May 28, 1998, among Amgen Inc., the
Borrowing Subsidiaries named therein, the Banks named therein,
Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc., as
Administrative Agent. (23)
10.22 Promissory Note of Mr. George A. Vandeman, dated December 15, 1995.
(11)
24
<PAGE>
10.23 Promissory Note of Mr. George A. Vandeman, dated December 15, 1995.
(11)
10.24 Agreement between Amgen Inc. and Dr. N. Kirby Alton, dated October
11, 1999. (26)
10.25 Amendment No. 1 to the Company's Amended and Restated Retirement and
Savings Plan. (12)
10.26 Seventh Amendment to the Amgen Retirement and Savings Plan as
Amended and Restated effective April 1, 1996. (25)
10.27 Amendment Number 2 to the Company's Amended and Restated Retirement
and Savings Plan dated April 1, 1996. (15)
10.28 Amgen Inc. Change of Control Severance Plan effective as of October
20, 1998. (24)
10.29 Preferred Share Rights Agreement, dated February 18, 1997, between
Amgen Inc. and American Stock Transfer and Trust Company, Rights
Agent. (13)
10.30 First Amendment, effective January 1, 1998, to the Company's Amended
and Restated Employee Stock Purchase Plan. (18)
10.31 Third Amendment, effective January 1, 1997, to the Company's Amended
and Restated Retirement and Savings Plan dated April 1, 1996. (18)
10.32 Agreement between Amgen Inc. and Dr. Fabrizio Bonanni, dated March
3, 1999. (26)
10.33 Promissory Note of Ms. Kathryn E. Falberg, dated April 7, 1995. (20)
10.34 Promissory Note of Mr. Edward F. Garnett, dated July 18, 1997. (20)
10.35 Fourth Amendment to the Company's Amended and Restated Retirement
and Savings Plan as amended and restated effective April 1, 1996.
(20)
10.36 Fifth Amendment to the Company's Amended and Restated Retirement and
Savings Plan as amended and restated effective April 1, 1996. (20)
10.37 Company's Amended and Restated 1987 Directors' Stock Option Plan.
(15)
10.38 Amended and Restated Agreement on G-CSF in the EU between Amgen Inc.
and F. Hoffmann-La Roche Ltd (with certain confidential information
deleted therefrom). (22)
10.39 Collaboration and License Agreement, dated December 15, 1997,
between the Company, GPI NIL Holdings, Inc. and Guilford
Pharmaceuticals Inc. (with certain confidential information deleted
therefrom). (21)
10.40 Promissory Note of Dr. Fabrizio Bonanni, dated August 7, 1999. (26)
10.41 Promissory Note of Dr. Fabrizio Bonanni, dated October 29, 1999.
(26)
10.42* Agreement between Amgen Inc. and Dr. Lawrence M. Souza, Ph.D., dated
March 6, 2000.
27* Financial Data Schedule.
99* Sections appearing under the heading "Item 1. Business - Factors
That May Affect Amgen" in the Company's Annual Report on Form 10-K
for the year ended December 31, 1999.
- ----------------
25
<PAGE>
* Filed herewith.
(1) Filed as an exhibit to the Annual Report on Form 10-K for the year ended
March 31, 1984 on June 26, 1984 and incorporated herein by reference.
(2) Filed as an exhibit to Quarterly Report on Form 10-Q for the quarter ended
September 30, 1985 on November 14, 1985 and incorporated herein by
reference.
(3) Filed as an exhibit to Quarterly Report on Form 10-Q for the quarter ended
December 31, 1985 on February 3, 1986 and incorporated herein by reference.
(4) Filed as an exhibit to Amendment No. 1 to Form S-1 Registration Statement
(Registration No. 33-3069) on March 11, 1986 and incorporated herein by
reference.
(5) Filed as an exhibit to the Form 10-K Annual Report for the year ended March
31, 1987 on May 18, 1987 and incorporated herein by reference.
(6) Filed as an exhibit to Form 8 amending the Quarterly Report on Form 10-Q
for the quarter ended June 30, 1988 on August 25, 1988 and incorporated
herein by reference.
(7) Filed as an exhibit to the Form 8 dated November 8, 1989, amending the
Annual Report on Form 10-K for the year ended March 31, 1989 on June 28,
1989 and incorporated herein by reference.
(8) Filed as an exhibit to Form S-3 Registration Statement dated December 19,
1991 and incorporated herein by reference.
(9) Filed as an exhibit to the Form 8-A dated March 31, 1993 and incorporated
herein by reference.
(10) Filed as an exhibit to the Form 10-Q for the quarter ended September 30,
1993 on November 12, 1993 and incorporated herein by reference.
(11) Filed as an exhibit to the Annual Report on Form 10-K for the year ended
December 31, 1995 on March 29, 1996 and incorporated herein by reference.
(12) Filed as an exhibit to the Form 10-Q for the quarter ended September 30,
1996 on November 5, 1996 and incorporated herein by reference.
(13) Filed as an exhibit to the Form 8-K Current Report dated February 18, 1997
on February 28, 1997 and incorporated herein by reference.
(14) Filed as an exhibit to the Form 8-K Current Report dated March 14, 1997 on
March 14, 1997 and incorporated herein by reference.
(15) Filed as an exhibit to the Annual Report on Form 10-K for the year ended
December 31, 1996 on March 24, 1997 and incorporated herein by reference.
(16) Filed as an exhibit to the Form 8-K Current Report dated April 8, 1997 on
April 8, 1997 and incorporated herein by reference.
(17) Filed as an exhibit to the Form 10-Q for the quarter ended March 31, 1997
on May 13, 1997 and incorporated herein by reference.
(18) Filed as an exhibit to the Form 10-Q for the quarter ended June 30, 1997 on
August 12, 1997 and incorporated herein by reference.
(19) Filed as an exhibit to the Form 8-K Current Report dated and filed on
December 5, 1997 and incorporated herein by reference.
26
<PAGE>
(20) Filed as an exhibit to the Annual Report on Form 10-K for the year ended
December 31, 1997 on March 24, 1998 and incorporated herein by reference.
(21) Filed as Exhibit 10.40 to the Guilford Pharmaceuticals Inc. Form 10-K for
the year ended December 31, 1997 on March 27, 1998 and incorporated herein
by reference.
(22) Filed as an exhibit to the Form 10-Q for the quarter ended March 31, 1998
on May 13, 1998 and incorporated herein by reference.
(23) Filed as an exhibit to the Form 10-Q for the quarter ended June 30, 1998 on
August 14, 1998 and incorporated herein by reference.
(24) Filed as an exhibit to the Annual Report on Form 10-K for the year ended
December 31, 1998 on March 16, 1999 and incorporated herein by reference.
(25) Filed as an exhibit to the Form 10-Q for the quarter ended June 30, 1999 on
August 3, 1999 and incorporated herein by reference.
(26) Filed as an exhibit to the Annual Report on Form 10-K for the year ended
December 31, 1999 on March 7, 2000 and incorporated herein by reference.
27
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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:
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
---------------------
<PAGE>
APPENDIX A
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS CONTAINED IN THE COMPANY'S QUARTERLY
REPORT ON FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 2000 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 126
<SECURITIES> 1,354
<RECEIVABLES> 282
<ALLOWANCES> 23
<INVENTORY> 238
<CURRENT-ASSETS> 2,154
<PP&E> 2,404
<DEPRECIATION> 808
<TOTAL-ASSETS> 4,265
<CURRENT-LIABILITIES> 731
<BONDS> 223
0
0
<COMMON> 0
<OTHER-SE> 3,311
<TOTAL-LIABILITY-AND-EQUITY> 4,265
<SALES> 698
<TOTAL-REVENUES> 814
<CGS> 86
<TOTAL-COSTS> 86
<OTHER-EXPENSES> 190<F1>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4
<INCOME-PRETAX> 385
<INCOME-TAX> 119
<INCOME-CONTINUING> 266
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 266
<EPS-BASIC> 0.26
<EPS-DILUTED> 0.25
<FN>
<F1>Item consists of research and development expenses.
</FN>
</TABLE>
<PAGE>
EXHIBIT 99
AMGEN INC.
Factors That May Affect Amgen
Amgen operates in a rapidly changing environment that involves a number of
risks, some of which are beyond our control. The following discussion highlights
some of these risks and others are discussed elsewhere herein.
Product development
We intend to continue an aggressive product development program. Successful
product development in the biotechnology industry is highly uncertain, and very
few research and development projects produce a commercial product. Product
candidates that appear promising in the early phases of development, such as in
early human clinical trials, may fail to reach the market for a number of
reasons, such as:
- - the product candidate did not demonstrate acceptable clinical trial results
even though it demonstrated positive preclinical trial results
- - the product candidate was not effective in treating a specified condition or
illness
- - the product candidate had harmful side effects on humans
- - the necessary regulatory bodies (such as the FDA) did not approve our product
candidate for an indicated use
- - the product candidate was not economical for us to manufacture it
- - other companies or people have or may have proprietary rights to our product
candidate (e.g. patent rights) and will not let us sell it on reasonable
terms, or at all
- - the product candidate is not cost effective in light of existing therapeutics
Several product candidates have failed at various stages in the product
development process, including BDNF, Megakaryocyte Growth and Development Factor
(MGDF) and GDNF. For example, in 1997, we announced the failure of BDNF (for the
treatment of ALS by subcutaneous injection administration route), because the
product candidate, as administered, did not produce acceptable clinical results
in a specific indication after a phase 3 trial, even though BDNF had progressed
successfully through preclinical and earlier clinical trials. Of course, there
may be other factors that prevent us from marketing a product. We cannot
guarantee we will be able to produce commercially successful products. Further,
clinical trial results are frequently susceptible to varying interpretations by
scientists, medical personnel, regulatory personnel, statisticians and others
which may delay, limit or prevent further clinical development or regulatory
approvals of a product candidate. Also, the length of time that it takes for us
to complete clinical trials and obtain regulatory approval for product marketing
has in the past
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varied by product and by the indicated use of a product. We expect that this
will likely be the case with future product candidates and we cannot predict the
length of time to complete necessary clinical trials and obtain regulatory
approval. See "- Regulatory matters."
Regulatory matters
Our research, preclinical testing, clinical trials, facilities,
manufacturing, pricing and sales and marketing are subject to extensive
regulation by numerous state and federal governmental authorities in the U.S.,
such as the FDA and the Health Care Financing Administration ("HCFA"), as well
as by foreign countries and the European Union (the "EU"). Currently, we are
required in the U.S. and in foreign countries to obtain approval from those
countries' regulatory authorities before we can market and sell our products in
those countries. The success of our current and future products will depend in
part upon obtaining and maintaining regulatory approval to market products in
approved indications in the U.S. and foreign markets. In our experience, the
regulatory approval process is a lengthy and complex process, both in the U.S.
and in foreign countries, including countries in the EU. Even if we obtain
regulatory approval, both our manufacturing processes and our marketed products
are subject to continued review. Later discovery of previously unknown problems
with our products or manufacturing processes may result in restrictions on such
products or manufacturing processes, including withdrawal of the products from
the market. Our failure to obtain necessary approvals, or the restriction,
suspension or revocation of any approvals, or our failure to comply with
regulatory requirements could prevent us from manufacturing or selling our
products which could have a material adverse effect on us and our results of
operations.
Reimbursement; Third party payors
In both domestic and foreign markets, sales of our products are dependent,
in part, on the availability of reimbursement from third party payors such as
state and federal governments (for example, under Medicare and Medicaid programs
in the U.S.) and private insurance plans. In certain foreign markets, the
pricing and profitability of our products generally are subject to government
controls. In the U.S., there have been, and we expect there will continue to be,
a number of state and federal proposals that limit the amount that state or
federal governments will pay to reimburse the cost of drugs. In addition, we
believe the increasing emphasis on managed care in the U.S. has and will
continue to put pressure on the price and usage of our products, which may
impact product sales. Further, when a new therapeutic is approved, the
reimbursement status and rate of such a product is uncertain. In addition,
current reimbursement policies for existing products may change at any time.
Changes in reimbursement or our failure to obtain reimbursement for our products
may reduce the demand for, or the price of, our products, which could result in
lower product sales or revenues which could have a material adverse effect on us
and our results of operations. For example, in the U.S. the use of
2
<PAGE>
EPOGEN(R) in connection with treatment for end stage renal disease is funded
primarily by the U.S. federal government. Therefore, as in the past, EPOGEN(R)
sales could be affected by future changes in reimbursement rates or the basis
for reimbursement by the federal government. For example, in early 1997, HCFA
instituted a reimbursement change for EPOGEN(R) which adversely affected the
Company's EPOGEN(R) sales, until the policies were revised. See "Item 7.
Management's Discussion and Analysis of Financial Condition and Results of
Operations -Results of Operations - Product sales - EPOGEN(R) (Epoetin alfa)."
Guidelines
Government agencies promulgate regulations and guidelines directly
applicable to us and to our products. However, professional societies, practice
management groups, private health/science foundations and organizations involved
in various diseases may also publish, from time to time, guidelines or
recommendations to the health care and patient communities. These organizations
may make recommendations that affect a patient's usage of certain therapies,
drugs or procedures, including our products. Recommendations of government
agencies or these other groups/organizations may relate to such matters as
usage, dosage, route of administration and use of concomitant therapies.
Recommendations or guidelines that are followed by patients and health care
providers could result in, among other things, decreased use of our products
which could have a material adverse effect on our results of operations. In
addition, the perception by the investment community or stockholders that such
recommendations or guidelines will be followed could adversely affect prevailing
market prices for our common stock.
Intellectual property and legal matters
The patent positions of pharmaceutical and biotechnology companies can be
highly uncertain and often involve complex legal, scientific and factual
questions. To date, there has emerged no consistent policy regarding breadth of
claims allowed in such companies' patents. Accordingly, the patents and patent
applications relating to our products, product candidates and technologies may
be challenged, invalidated or circumvented by third parties and might not
protect us against competitors with similar products or technology. For certain
of our product candidates, there are third parties who have patents or pending
patents that they may claim prevent us from commercializing these product
candidates in certain territories. Patent disputes are frequent and can preclude
commercialization of products. We are currently, and in the future may be,
involved in patent litigation. The results of such litigation could subject us
to competition and/or significant liabilities, could require us to enter into
third party licenses or could cause us to cease using the technology or product
in dispute. In addition, we cannot guarantee that such licenses will be
available on terms acceptable to us.
3
<PAGE>
The Company is currently involved in arbitration proceedings with Ortho
Pharmaceutical Corporation (which has assigned its rights under the Product
License Agreement to Ortho Biotech, Inc.), a subsidiary of Johnson & Johnson
("Johnson & Johnson"), relating to a license granted by the Company to Johnson &
Johnson for sales of Epoetin alfa in the U.S. for all human therapeutic uses
except dialysis. See Note 4 to the Consolidated Financial Statements,
"Contingencies - Johnson & Johnson arbitrations".
Competition
We operate in a highly competitive environment. Our principal competitors
are pharmaceutical and biotechnology companies. Some of our competitors, mainly
large pharmaceutical corporations, have greater clinical, research, regulatory
and marketing resources than we do. In addition, some of our competitors may
have technical or competitive advantages over us for the development of
technologies and processes and may acquire technology from academic
institutions, government agencies and other private and public research
organizations. We cannot guarantee that we will be able to produce or acquire
rights to products that have commercial potential. Even if we achieve successful
product commercialization, we cannot guarantee that one or more of our
competitors will not achieve product commercialization earlier than we do,
obtain patent protection that dominates or adversely affects our activities, or
have significantly greater marketing capabilities.
Fluctuations in operating results
Our operating results may fluctuate from period to period for a number of
reasons. In budgeting our operating expenses, some of which are fixed in the
short term, we assume that revenues will continue to grow. Accordingly, even a
relatively small revenue shortfall may cause a period's results to be below our
expectations. A revenue shortfall could arise from any number of factors, such
as:
- - lower than expected demand for our products
- - changes in the government's or private payor's reimbursement policies for our
products
- - changes in wholesaler buying patterns
- - increased competition from new or existing products
- - fluctuations in foreign currency exchange rates
- - changes in our product pricing strategies
Of course, there may be other factors that affect the Company's revenues in
any given period.
Rapid growth
We have an aggressive growth plan that includes substantial and increasing
investments in research and development and facilities. Our plan has a number of
risks, such as:
4
<PAGE>
- - the need to generate higher revenues to cover a higher level of operating
expenses
- - the need to attract and assimilate a large number of new employees
- - the need to manage complexities associated with a larger and faster growing
organization
- - the need to accurately anticipate demand for the products we manufacture and
maintain adequate manufacturing capacity
Of course, there may be other risks and we cannot guarantee that we will be
able to successfully manage these or other risks.
Stock price volatility
Our stock price, like that of other biotechnology companies, is highly
volatile. Our stock price may be affected by, among other things, clinical trial
results and other product-development announcements by us or our competitors,
regulatory matters, announcements in the scientific and research community,
intellectual property and legal matters, changes in reimbursement policies or
medical practices or broader industry and market trends unrelated to our
performance. In addition, if our revenues or earnings in any period fail to meet
the investment community's expectations, there could be an immediate adverse
impact on our stock price.
5
