Consulting Agreement – Amgen Inc.

CONSULTING SERVICES AGREEMENT

This Consulting Services Agreement (“Agreement”) is entered into as of
February 13, 2012 (“Effective Date”) by and among Perlmutter Consulting Inc.
(“Perlmutter Consulting”), Roger M. Perlmutter (“Consultant”) with respect to
the provisions applicable to Consultant, and Amgen Inc., together with its
affiliates and subsidiaries (“Amgen”).

WHEREAS, Amgen is engaged in the research, development and commercialization
of pharmaceutical and biotechnology products;

WHEREAS, Consultant has previously executed Amgen’s Proprietary Information
and Inventions Agreement, on or about January 1, 2001 (“Proprietary Agreement”);

WHEREAS, Consultant has separated from employment with Amgen effective
February 12, 2012 (the “Employment Termination Date”);

WHEREAS, Consultant has extensive knowledge and expertise in the research,
development and commercialization of biopharmaceutical products;

WHEREAS, Perlmutter Consulting has agreed to assist Amgen by assigning
Consultant to provide advice on issues related to Consultant’s areas of
expertise, including research and development, commercialization of the R&D
product pipeline, and related areas; and

WHEREAS, Amgen has agreed to engage Perlmutter Consulting to provide such
services on the terms and conditions set forth below.

NOW THEREFORE, in consideration of the promises and of the mutual covenants,
conditions and agreements contained herein, the parties agree as follows:

ARTICLE ONE

CONSULTING SERVICES

1.1 Engagement. Amgen hereby agrees to engage
Perlmutter Consulting and Perlmutter Consulting has agreed to assist Amgen by
assigning Consultant to advise Amgen on issues related to Consultant’s areas of
expertise, including research and development, commercialization of the R&D
product pipeline, and related areas (the “Services”). With respect to the
Services Perlmutter Consulting will provide, Perlmutter Consulting will receive
assignments from Robert A. Bradway, or his designee or successor.

1.2 Location. The Services shall generally be
performed remotely. Consultant shall primarily provide his advice through
correspondence, e-mail, and telephone calls. However, Mr. Bradway or his
designee may request in advance that Consultant attend meetings or provide
services at Amgen’s Thousand Oaks facility. In addition, Amgen may, in its
discretion, request that the Services be performed at other locations.

1.3 No Other Authority. Neither Perlmutter Consulting
nor Consultant shall represent or purport to represent Amgen in any manner
whatsoever to any third party, unless permitted to do so pursuant to specific
written authorization of Amgen’s Senior Vice President, Human Resources.
Perlmutter Consulting and Consultant shall have no authority to bind Amgen in
any way.

ARTICLE TWO

COMPENSATION

2.1 Compensation. In consideration of performance of
the Services outlined in Section 1, above, Amgen will pay Perlmutter Consulting
the sum of $100,000.00 in arrears after the end of each quarter (measured every
ninety calendar days), within 60 calendar days following the receipt of invoices
(the “Consulting Fee”). The Consulting Fee shall compensate Perlmutter
Consulting for up to 80 hours of Service in a calendar quarter. If Perlmutter
Consulting is asked to perform additional work above 80 hours of Service, and
Perlmutter Consulting agrees to perform such additional work, Amgen shall pay
Perlmutter Consulting an additional Consulting Fee of $1,200.00 per hour of
additional work. The maximum hours in any calendar quarter shall be 160 hours.
Additional hours (over the 160 hour maximum per quarter) are not permitted
unless previously authorized, in writing, by Amgen’s Senior Vice President,
Human Resources or his/her designee. If this Agreement is terminated for any
reason before the end of a calendar quarter (“Incomplete Quarter”), then for the
Incomplete Quarter, Amgen will pay Perlmutter Consulting a prorated portion of
the Consulting Fee based upon the number of days that have passed in the
Incomplete Quarter, regardless of how much work has been performed during the
Incomplete Quarter, within 60 calendar days following Amgen’s receipt of an
invoice covering the Incomplete Quarter. Each Consulting Fee payment shall be
treated as a separate payment for purposes of Treasury Regulations Sections
1.409A-1(b)(4)(F) and 1.409A-2(b)(2), and is intended to be exempt from Section
409A as a short-term deferral.

2.2 Travel Reimbursement. During the term of this
Agreement, Amgen will reimburse Perlmutter Consulting for all reasonable and
normal travel-related expenses incurred in connection with Perlmutter
Consulting’s performance of the Services. Reimbursable travel expenses shall
include automobile rental and other transportation expenses and hotel expenses.
In connection with Perlmutter Consulting’s reimbursable travel under this
Agreement, Consultant shall be entitled travel in first class for domestic and
international flights. All requests for reimbursement for travel-related
expenses must be accompanied by documentation in form and detail sufficient to
meet the requirements of the taxing authorities with respect to recognition of
business-related travel expenses for corporate tax purposes. Requests for travel
expense reimbursement shall be submitted with the quarterly invoice for the
period that includes the date on which the underlying expense was incurred, and
Perlmutter Consulting shall receive all reimbursements due hereunder within
ninety (90) calendar days after the submission of the documentation described in
the preceding sentence.

2.3 Invoicing. Perlmutter Consulting will, within 15
days after the end of each calendar quarter, provide Amgen with quarterly
invoices for the performance of Services. Invoices should be sent to Brian M.
McNamee, Senior Vice President, Human Resources, at the address listed below.
Invoices will set forth the actual number of hours and the dates on which
Consultant worked during the calendar quarter and a detailed description of all
Services provided during the quarter, and shall itemize all reimbursable costs
incurred. Perlmutter Consulting may invoice eight hours for any day in which
Consultant works in excess of four hours. Travel time can be invoiced. Pursuant
to Subsection 2.1, Perlmutter Consulting will not submit invoices that total
more than 160 hours per quarter unless previously authorized, in writing. Except
for travel reimbursements covered by Section 2.2 above, invoices will be payable
by Amgen within sixty (60) calendar days of receipt after the end of the
calendar quarter, but in no event later than March 15 of the calendar year after
that in which the Services are performed. Notwithstanding the foregoing, payment
under this Agreement is expressly conditioned upon Amgen’s receipt of a
completed Form W-9 for Perlmutter Consulting and a completed Global Supplier
Information Form.

All invoices and receipts must be sent (via mail or e-mail) to the address
listed below:

Amgen Inc.

Attn: Brian McNamee, SVP HR

XXX

One Amgen Center Drive

Thousand Oaks, CA 91320-1799

XXX

2.4 Mechanism of Payment. All payments hereunder
shall be made by check payable to Perlmutter Consulting, Inc. and mailed to XXX,
unless otherwise directed by Perlmutter Consulting in writing.

ARTICLE THREE

REPRESENTATIONS AND COVENANTS

3.1 Perlmutter Consulting’s And Consultant’s
Representations. Perlmutter Consulting and Consultant represent and
warrant:

(a)

that compensation provided under the terms of this Agreement is consistent
with fair market value for arm’s length transactions of this type, and that the
services to be performed under the Agreement do not and will not involve the
counseling or promotion of a business arrangement or other activity that
violates any applicable law;

(b)

solely for purposes of applying Treasury Regulations Section 1.409A-1(h)(1),
that Consultant worked an average of approximately 52 hours per week during the
last 36 months of his employment at Amgen;

(c)

that neither Perlmutter Consulting nor Consultant has entered into any
agreement, whether written or oral, that conflicts with the terms of this
Agreement;

(d)

that Perlmutter Consulting and Consultant each has the full power and
authority to enter into this Agreement;

(e)

that neither Perlmutter Consulting nor Consultant is presently: (1) the
subject of a debarment action or debarred pursuant to the Generic Drug
Enforcement Act of 1992; (2) the subject of a disqualification proceeding or is
disqualified as a clinical investigator pursuant to 21 C.F.R. § 312.70; or (3)
the subject of an exclusion proceeding or excluded from participation in any
federal health care program under 42 C.F.R. Part 1001 et seq.
Perlmutter Consulting shall notify Amgen immediately upon any inquiry, or the
commencement of any such proceeding, concerning Perlmutter Consulting or
Consultant; and

(f)

that neither Consultant nor Perlmutter Consulting has a financial or personal
interests that would prevent them from performing and completing the Services in
an objective and non-biased manner.

3.2 Perlmutter Consulting’s and Consultant’s
Covenants:

(a)

Consultant and Perlmutter Consulting shall act as independent consultants
with no authority to obligate Amgen by contract or otherwise and not as an
employee or officer of Amgen;

(b)

Notwithstanding anything contained in this Agreement to the contrary, neither
Perlmutter Consulting nor Consultant shall initiate or participate in any
communications with the United States Food & Drug Administration or any
other governmental agency concerning the subject matter hereof unless required
by law or requested to do so by Amgen in writing and, then, only upon prior
consultation with Amgen;

(c)

Perlmutter Consulting and Consultant agree that for the term of this
Agreement or through February 12, 2013, whichever is later, neither Perlmutter
Consulting nor Consultant will solicit, entice, persuade, induce or attempt to
influence any person who is employed by Amgen (“Amgen Employee”) to leave
employment with Amgen to join Perlmutter Consulting, Consultant or a third party
with whom Perlmutter Consulting or Consultant has a relationship (collectively
“Consultant Third Parties”), or to engage in competition with Amgen, by (i)
making initial contact with an Amgen Employee for or about such purpose or
initiating a discussion with an Amgen Employee for or about such purpose, except
as expressly permitted herein; (ii) causing or encouraging any person or entity
to make initial contact with an Amgen Employee for or about such purpose, except
that Perlmutter Consulting’s attorney may contact Amgen’s Law Department; (iii)
providing to any person or entity, including but not limited to any Consultant
Third Party, information about any Amgen Employee for the purpose of recruitment
of that Amgen Employee; and/or (iv) disparaging Amgen in the course of otherwise
assisting any Consultant Third Party in the recruitment and hiring process.
Nothing contained herein shall prohibit Perlmutter Consulting or Consultant from
(i) providing an opinion to a Consultant Third Party whether to pursue an Amgen
Employee who initiates an employment inquiry with the Consultant Third Party;
(ii) meeting with an Amgen Employee who has initiated contact with any
Consultant Third Party and whom any Consultant Third Party is considering for
hire, in order to present such Amgen Employee with Consultant’s opinion about
the Consultant Third Party’s future and Consultant’s vision for the Consultant
Third Party so long as Consultant does not disparage or otherwise negatively
compare Amgen with the Consultant Third Party; or (iii) encouraging an Amgen
Employee to join a Consultant Third Party after the Consultant Third Party has
initially interviewed such Amgen Employee for employment with the Consultant
Third Party, so long as such encouragement does not constitute disparagement of
Amgen or otherwise negatively compare Amgen with the Consultant Third Party.

(d)

Neither Perlmutter Consulting nor Consultant shall, during the term of this
Agreement, enter into any other agreement, whether written or oral, which
conflicts with or will conflict with Perlmutter Consulting’s or Consultant’s
obligations hereunder. Travel by Consultant shall be deemed a request and not an
obligation under the Agreement;

(e)

Perlmutter Consulting and Consultant agree that at least ten (10) business
days in advance of commencing services for any other employer or client,
Perlmutter Consulting and/or Consultant will disclose in writing to Amgen’s
Senior Vice President, Human Resources or his designee, Perlmutter Consulting’s
or Consultant’s plans to perform such services. Amgen shall determine in its
sole discretion whether such engagement is appropriate. Amgen’s Senior Vice
President, Human Resources or his designee will advise Perlmutter Consulting
and/or Consultant, in writing, of Amgen’s determination. If Perlmutter
Consulting or Consultant accepts employment or an engagement which Amgen has
determined, in its sole discretion, is not appropriate, Perlmutter Consulting’s
and/or Consultant’s acceptance shall constitute a material breach of this
Agreement authorizing termination under Section 5.2;

(f)

Perlmutter Consulting and Consultant agree that at no time will Perlmutter
Consulting or Consultant purchase or sell Amgen securities while aware of Amgen
Confidential Information (as defined below) that constitutes material,
non-public information pursuant to the Federal Securities Laws of the United
States;

(g)

Perlmutter Consulting shall not assign or subcontract performance of this
Agreement or any of the Services to any employee or agent of Perlmutter
Consulting other than Consultant, nor to any other person, firm, company or
organization without Amgen’s prior written consent. Further, Consultant shall
not assign or subcontract performance of this Agreement or any of the Services
to any other employee or agent of Perlmutter Consulting, nor to any other
person, firm, company or organization without Amgen’s prior written consent;

(h)

Perlmutter Consulting and Consultant agree to timely perform the Services;

(i)

Perlmutter Consulting and Consultant agree to utilize and provide Amgen with
accurate and complete data in rendering the Services; and

(j)

Consultant agrees to continue to be bound by, and Perlmutter Consulting
agrees to be bound by, all of the terms and conditions of the Proprietary
Agreement during the term of this Agreement, including but not limited to the
provisions relating to Proprietary Information, Nondisclosure, and Assignment of
Inventions. Perlmutter Consulting and Consultant further agree to return all
Amgen property in Consultant’s custody or control, upon termination of this
Agreement.

ARTICLE FOUR

INDEPENDENT CONSULTANT STATUS

4.1 Independent Consultant. Perlmutter Consulting and
Consultant are independent consultants, and Consultant is not an Amgen employee,
and as such, neither Perlmutter Consulting nor Consultant will have authority to
obligate Amgen by contract or otherwise.

4.2 Taxes. No amount will be deducted or withheld
from Amgen’s payment to Perlmutter Consulting for federal, state or local taxes.
No FICA taxes, FUTA taxes, SDI or state unemployment taxes will be payable by
Amgen on Perlmutter Consulting’s or Consultant’s behalf. Amgen shall issue to
Perlmutter Consulting an IRS Form 1099-MISC reporting the amount paid for
Services provided under this Agreement, and Perlmutter Consulting and Consultant
understand that each is responsible for making appropriate filings and paying,
according to law, income and other related self-employment taxes. Perlmutter
Consulting and Consultant further understand that they may be liable for
self-employment (Social Security and Medicare) taxes to be paid by them
according to law. Perlmutter Consulting and Consultant will retain
responsibility for the income and self-employment taxes, if any, due on all
taxable income arising under this Agreement. Perlmutter Consulting, Consultant
and Amgen shall each be responsible for their respective state or federal income
tax or Social Security and Medicare tax liabilities and/or penalties, costs,
interest, and expenses of any kind (“Tax Liabilities”) that may arise because of
a challenge by tax authorities of Consultant’s treatment as an independent
contractor, and Perlmutter Consulting and Consultant shall indemnify and hold
Amgen harmless for any of their Tax Liabilities that Amgen may incur, and vice
versa. In the event that any federal, state and/or local taxing authority seeks
to collect from Amgen any employment taxes, additions to tax or any interest due
to Consultant’s reclassification as an employee of Amgen, Consultant hereby
agrees to provide a signed IRS Form 4669 (Statement of Payments Received) and a
signed EDD Form DE938P (Claim For Adjustment or Refund of Personal Income Tax)
to Amgen for purposes of its seeking abatement of any assessed federal, state,
and local income taxes. Perlmutter Consulting and Consultant further agree to be
jointly and severally liable for reimbursing Amgen for any Tax Liabilities not
otherwise abated by the taxing authority as a result of Perlmutter Consulting’s
and/or Consultant’s failure to satisfy any of their Tax Liabilities. Perlmutter
Consulting, Consultant and Amgen hereby agree to notify the other in the manner
provided in Subsection 7.8 in the event of an audit or other investigation by
taxing authorities relating to Perlmutter Consulting’s or Consultant’s treatment
as an independent contractor.

4.3 Benefits. Consultant shall not claim the status,
perquisites or benefits of an Amgen employee and Perlmutter Consulting and
Consultant agree to hold Amgen harmless from any claim or other assertion (by
Consultant or his beneficiaries) to the contrary. Perlmutter Consulting and
Consultant agree that Consultant is not eligible for coverage or to receive any
benefit under any Amgen employee benefit plan or employee compensation
arrangement, except to the limited extent that Amgen grants eligibility for such
coverage or the right to receive such benefits to Consultant in a document
signed by Consultant and Amgen’s Senior Vice President, Human Resources. Even if
Consultant were to become or be deemed to be a common-law employee of Amgen,
Consultant still shall not be eligible for coverage or to receive any benefit
under any Amgen employee benefit plan or any employee compensation arrangement
with respect to any period during which Amgen classified Consultant as a
consultant, except to the limited extent that Amgen grants eligibility for such
coverage or the right to receive such benefits to Consultant in a document
signed by Consultant and Amgen’s Senior Vice President, Human Resources.
Perlmutter Consulting and

Consultant further agree that if Consultant is injured while performing work
for Amgen hereunder, Consultant will not be covered for such injury under
Amgen’s insurance policies, including under any Worker’s Compensation coverage
provided by Amgen for its employees, and that Perlmutter Consulting is solely
responsible for providing Worker’s Compensation insurance for Perlmutter
Consulting employees, if any.

ARTICLE FIVE

TERM AND TERMINATION

5.1 Term. This Agreement shall terminate one year
from the Effective Date. The parties may mutually agree to extend this Agreement
for a second year on the same terms as set forth herein.

5.2 Termination. This Agreement may be terminated
before the end of the Term, as defined in Subsection 5.1 above, by a party
hereto upon material breach of any term of this Agreement by another party or by
a party for any reason with thirty (30) calendar days prior written notice to
the other parties.

5.3 Continuing Obligations Post-Termination.
Perlmutter Consulting’s, Consultant’s, and Amgen’s respective
obligations under Subsection 4.2, Articles Three and Six, and the Proprietary
Agreement survive the termination of this Agreement.

ARTICLE SIX

INDEMNIFICATION AND DAMAGES

6.1 Indemnification. Perlmutter Consulting and
Consultant hereby agree to defend, indemnify and hold harmless Amgen, its
officers, directors, employees and agents (“Amgen Parties”) against all
liability, obligations, claims, losses and expense arising out of acts or
omissions of Perlmutter Consulting, its officers, directors, employees and
agents, including Consultant (“Consultant Parties”), in performing the Services
hereunder. Amgen hereby agrees to defend, indemnify and hold harmless Consultant
Parties against all liability, obligations, claims, losses and expenses arising
out of acts or omissions of Amgen Parties undertaken in connection with
performing their obligations under the Agreement.

6.2 Damages. Amgen will not be liable to Perlmutter
Consulting or Consultant for any consequential, liquidated, punitive or special
damages. Perlmutter Consulting and Consultant will not be liable to Amgen for
any consequential, liquidated, punitive or special damages.

ARTICLE SEVEN

MISCELLANEOUS

7.1 Waiver. None of the terms of this Agreement may
be waived except by an express agreement in writing signed by the party against
whom enforcement of such waiver is sought. The failure or delay of any party
hereto in enforcing any of its rights under this Agreement shall not be deemed a
continuing waiver of such right.

7.2 Entire Agreement. This Agreement and the
Proprietary Agreement represent the final, complete and exclusive embodiment of
the entire agreement and understanding between Amgen, Perlmutter Consulting and
Consultant concerning the Services to Amgen, and supersede and replace any and
all agreements and understandings concerning the Services to Amgen.

7.3 Amendments. This Agreement may not be released,
discharged, amended or modified in any manner except by an instrument in writing
signed by Perlmutter Consulting, Consultant (with respect to those provisions
applicable to Consultant), and Amgen’s Senior Vice President of Human Resources.

7.4 Assignment. Amgen has specifically contracted for
the Services and, therefore, neither Perlmutter Consulting nor Consultant may
assign or delegate Perlmutter Consulting’s and/or Consultant’s obligations under
this Agreement, either in whole or in part, without the prior written consent of
Amgen. Amgen may assign this Agreement at any time without the prior consent of
Perlmutter Consulting or Consultant. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.

7.5 Severability. If any provision of this Agreement
is, becomes, or is deemed invalid, illegal or unenforceable in any jurisdiction,
such provision shall be deemed amended to conform to the applicable laws so as
to be valid and enforceable, or, if it cannot be so amended without materially
altering the intention of the parties hereto, it shall be stricken and the
remainder of this Agreement shall remain in full force and effect.

7.6 Headings. Article and Section headings contained
in the Agreement are included for convenience only and are not to be used in
construing or interpreting this Agreement.

7.7 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of California or of
Consultant’s legal residence .

7.8 Notices. All notices required or permitted to be
given under this Agreement must be in writing and may be given by any method of
delivery which provides evidence or confirmation of receipt, including but not
limited to personal delivery, express courier (such as Federal Express) and
prepaid certified or registered mail with return receipt requested. Notices
shall be deemed to have been given and received on the date of actual receipt
or, if either of the following dates is applicable and is earlier, then on such
earlier date: one (1) business day after sending, if sent by express courier; or
three (3) business days after deposit in the U.S. mail, if sent by certified or
registered mail. Notices shall be given and/or addressed to the respective
parties at the following addresses:

To Amgen:

Amgen Inc.

Attn: Brian M. McNamee, SVP HR

XXX

One Amgen Center Drive

Thousand Oaks, CA 91320-1799

To Perlmutter Consulting and/or Consultant:

XXX

Any party may change its address for the purpose of this paragraph by giving
written notice of such change to the other party in the manner herein provided.

[Signatures begin on following page]

IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by proper persons thereunto duly authorized.


AMGEN INC.

By:	/s/ Brian M. McNamee	February 29, 2012
	Brian M. McNamee	Date
	Senior Vice President, Human Resources

PERLMUTTER CONSULTING, INC.
/s/ Roger M. Perlmutter		February 27, 2012
Roger M. Perlmutter on behalf of Consultant and as President of Perlmutter Consulting, Inc.		Date

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Stay Up-to-Date With How the Law Affects Your Life

Enter your email address to subscribe:

Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.