Exhibit 10.61


 


EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into
effective as of June 9, 2003 (the “Effective Date”), by and between AMYLIN PHARMACEUTICALS, INC.,
a corporation (the “Company”),
and GINGER L.
GRAHAM (the “Executive”).  The Company and the Executive are
hereinafter collectively referred to as the “Parties”, and individually referred to
as a “Party”.


 


The Company desires assurance of the association and
services of the Executive in order to retain the Executive’s experience,
skills, abilities, background and knowledge, and is willing to engage the
Executive’s services on the terms and conditions set forth in this Agreement.


 


The Executive desires to be in the employ of the
Company, and is willing to accept such employment on the terms and conditions
set forth in this Agreement.


 


AGREEMENT


 


In consideration of the foregoing recitals and the
mutual promises and covenants herein contained, and for other good and valuable
consideration, the Parties, intending to be legally bound, agree as follows:


 


1.                                      EMPLOYMENT.


 


1.1                               Title.  The Executive shall have the title of President and Chief
Executive Officer of the Company and shall serve in such other capacity or
capacities as the Board of Directors of the Company (the “Board”) may from
time to time prescribe.  The Executive
shall also serve as a member of the Board during her employment as President
and Chief Executive Officer.


 


1.2                               Duties.  The Executive shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of the Company and
which are normally associated with the position of President and Chief
Executive Officer, consistent with the bylaws of the Company and as required by
the Board.


 


1.3                               Location.  Unless the Parties otherwise agree in
writing, the Executive shall perform services pursuant to this Agreement at the
Company’s offices located in Boulder, Colorado, San Diego, California or at any
other place at which the Company maintains an office; provided, however, that the Company may
from time to time require the Executive to travel temporarily to other
locations in connection with the Company’s business.


 


1.4                               Initial Part-Time Employment.  During the period June 9, 2003 through
August 31, 2003, the Executive’s employment with the Company shall be
part-time.  Effective September 1,
2003, the Executive shall assume the role of President and Chief Executive
Officer on a full-time basis.


 


1

















 


2.                                      LOYAL AND CONSCIENTIOUS PERFORMANCE;
NONCOMPETITION.


 


2.1                               Loyalty.  During the Executive’s employment by the Company the Executive
shall devote the Executive’s full business energies, interest, abilities and
productive time to the proper and efficient performance of the Executive’s
duties under this Agreement.


 


2.2                               Non-competition.  Except with the prior written consent of the
Company’s Board of Directors, Executive will not, while employed by the
Company, engage in competition with the Company and/or any of its affiliates,
subsidiaries, or joint ventures currently existing or which shall be
established during Executive’s employment by the Company (collectively, “Affiliates”) either
directly or indirectly, in any manner or capacity, as adviser, principal,
agent, affiliate, promoter, partner, officer, director, employee, consultant,
or otherwise, in any phase of the business of developing, manufacturing and
marketing of products or services which are in the same field of use or which
otherwise compete with the products or services or proposed products or
services of the Company and/or any of its Affiliates unless approved by the
Board.


 


2.3                               Agreement not to Participate in Company’s
Competitors.  During her
employment by the Company, the Executive agrees not to acquire, assume or participate
in, directly or indirectly, any position, investment or interest known by
Executive to be adverse or antagonistic to the Company, its business or
prospects, financial or otherwise or in any company, person or entity that is,
directly or indirectly, in competition with the business of the Company or any
of its Affiliates. Notwithstanding the foregoing, the acquisition or ownership
by the Executive, as a passive investment, of less than two percent (2%) of the
outstanding shares of capital stock of any corporation with one or more classes
of its capital stock listed on a national securities exchange or publicly
traded on the Nasdaq Stock Market or in the over-the-counter market shall not
constitute a breach of this paragraph.


 


3.                                      COMPENSATION.


 


3.1                               Base Salary During Part-Time Employment.  During the period from June 9 to
August 31, 2003, the Executive shall receive an annualized base salary
equivalent to One Hundred Twenty Five Thousand Dollars ($125,000.00) per year,
equivalent to $2,400.00 per week, payable in regular periodic installments in
accordance with Company policy.


 


3.2                               Base Salary.  Effective September 1, 2003, the
Company shall pay the Executive a base salary of Five Hundred Thousand Dollars
($500,000.00) per year, payable in regular periodic payments in accordance with
Company policy.  Such base salary shall
be prorated for any partial year of employment on the basis of a 365-day fiscal
year.  The Compensation Committee of the
Company’s Board of Directors, at its sole discretion, will review the
Executive’s salary on an annual basis.


 


3.3                               Discretionary Bonus.  In addition to the Executive’s base salary,
the Executive will be eligible to receive an annual discretionary bonus of up
to Five Hundred Thousand Dollars ($500,000.00) based upon the achievement of
corporate objectives as determined by the Board under the Company’s bonus plan
for executives then in effect.  The
Board shall determine, in its exclusive discretion, whether the Executive shall
receive any bonus


 


2

















 


in any particular
year and the amount of any bonus.  Any
bonus awarded by the Board shall be paid in March of the year following the
performance year.  The target bonus
shall be Four Hundred Thousand Dollars ($400,000.00).  The Compensation Committee of the Board will review the
Executive’s bonus target on an annual basis and determine, in its sole
discretion, whether changes are appropriate.


 


3.4                               Stock Options.  The Executive shall be granted an option to
purchase five hundred thousand (500,000) shares of the Company’s stock at an
exercise price of twenty-three dollars ($23.00) per share (the “Option”). 
The option shall be an incentive stock option to the extent permitted by
applicable tax laws.  The Option is
governed by the terms of the Company’s 2001 Equity Incentive Plan and related
Option Grant Notice.  The Option shall
vest as follows: (i) 350,000 shares shall vest over four (4) years so long
as the Executive remains employed by the Company, with twenty-five percent
(25%) of these shares (87,500) vesting on September 1, 2004, the first
anniversary of the Executive’s full-time employment with the Company, and the
balance of these shares (262,500) vesting 1/36th (7,291.666 shares)
at the end of each monthly period thereafter for a period of three years;
(ii) 50,000 shares shall vest upon the commercial launch of SYMLINTM
(pramlintide acetate) provided that
the Executive is employed by the Company on the date of launch;
(iii) 50,000 shares shall vest upon U.S. Food and Drug Administration
(“FDA”) acceptance of an exenatide New Drug Application provided that the Executive is employed by
the Company on the date of acceptance; and (iv) 50,000 shares shall vest
upon commercial  launch of
exenatide provided that the
Executive is employed by the Company on the date of launch.  Commercial launch of a product shall be
deemed to occur upon the adoption of a resolution by the Board after FDA
approval of such product, such resolution authorizing the Company to enter into
commerce with such product.


 


3.5                               Annual Option Grants.  The executive shall be eligible to receive
annual stock option grants based upon corporate performance, as determined by
the Board in its exclusive discretion.


 


3.6                               Expenses. 
The Company will reimburse Executive for housing expenses in
San Diego for up to $3,000 per month. 
The actual amount will be grossed-up for income tax purposes.  Executive will also be eligible for
reimbursement of other business and travel expenses.


 


3.7                               Employment
Taxes.  All of the Executive’s
compensation shall be subject to customary withholding taxes and any other
employment taxes as are commonly required to be collected or withheld by the
Company.


 


3.8                               Benefits.  The Executive shall, in accordance with
Company policy and the terms of the applicable plan documents, be eligible to
participate in benefits under any executive benefit plan or arrangement which
may be in effect from time to time and made available to the Company’s
executive or key management employees, including but not limited to:  the Company’s Change in Control Employee
Severance Benefit Plan, Deferred Compensation Plan, 401K Savings Plan, Employee
Stock Purchase Plan, group health insurance, disability insurance, life
insurance, and paid personal leave.


 


3

















 


4.                                      TERM.


 


4.1                               At-Will Employment.  The Executive shall be employed at
will.  Either the Executive or the
Company may terminate this Agreement and the employment relationship at any
time, with or without notice, for any reason or no reason.


 


4.2                               Survival of Certain Provisions.  Section 5, and to the extent
applicable, Section 2.2, shall survive the termination of this Agreement.


 


5.                                      CONFIDENTIAL AND
PROPRIETARY INFORMATION; NONSOLICITATION.


 


5.1                               As
a condition of employment the Executive agrees to execute and abide by the
Company’s standard Proprietary Information and Inventions Agreement.


 


5.2                               While
employed by the Company and for one (1) year thereafter, the Executive agrees
that in order to protect the Company’s trade secrets and confidential and
proprietary information from unauthorized use, the Executive will not, either
directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity, other
than any administrative assistant or other person in a similar role employed by
the Company to directly assist Executive.


 


6.                                      ASSIGNMENT AND
BINDING EFFECT.


 


This Agreement shall be
binding upon and inure to the benefit of the Executive and the Executive’s
heirs, executors, personal representatives, assigns, administrators and legal
representatives.  Because of the unique
and personal nature of the Executive’s duties under this Agreement, neither
this Agreement nor any rights or obligations under this Agreement shall be
assignable by the Executive.  This
Agreement shall be binding upon and inure to the benefit of the Company and its
successors, assigns and legal representatives.


 


7.                                      CHOICE OF LAW.


 


This Agreement shall be
construed and interpreted in accordance with the internal laws of the State of
California.


 


8.                                      INTEGRATION.


 


This Agreement, the
indemnity agreement dated January 4, 1996, and the Proprietary Information and
Inventions Agreement contains the complete, final and exclusive agreement of
the Parties relating to the terms and conditions of the Executive’s employment
and the termination of the Executive’s employment, and supersedes all prior and
contemporaneous oral and written employment agreements or arrangements between
the Parties, including without limitation any previous letter between Executive
and the Company regarding employment. To the extent this Agreement conflicts
with the Proprietary Information and Inventions Agreement, the Proprietary
Information and Inventions Agreement controls (except with respect to the
prohibition or solicitation of employees for which Section 5.2 of this
Agreement shall control).


 


4

















 


9.                                      AMENDMENT.


 


This Agreement cannot be
amended or modified except by a written agreement signed by the Executive and
the Chairman of the Board of the Company.


 


10.                               WAIVER.


 


No term, covenant or
condition of this Agreement or any breach thereof shall be deemed waived,
except with the written consent of the Party against whom the wavier is
claimed, and any waiver or any such term, covenant, condition or breach shall
not be deemed to be a waiver of any preceding or succeeding breach of the same
or any other term, covenant, condition or breach.


 


11.                               SEVERABILITY.


 


The finding by a court of
competent jurisdiction of the unenforceability, invalidity or illegality of any
provision of this Agreement shall not render any other provision of this
Agreement unenforceable, invalid or illegal. 
Such court shall have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term or provision
which most accurately represents the Parties’ intention with respect to the
invalid or unenforceable term or provision.


 


12.                               INTERPRETATION;
CONSTRUCTION.


 


The headings set forth in
this Agreement are for convenience of reference only and shall not be used in
interpreting this Agreement.  This
Agreement has been drafted by legal counsel representing the Company, but the
Executive has been encouraged to consult with, and have consulted with, the
Executive’s own independent counsel and tax advisors with respect to the terms
of this Agreement.  The Parties
acknowledge that each Party and its counsel has reviewed and revised, or had an
opportunity to review and revise, this Agreement, and any rule of construction
to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.


 


13.                               REPRESENTATIONS AND WARRANTIES.


 


The Executive represents
and warrants that the Executive is not restricted or prohibited, contractually
or otherwise, from entering into and performing each of the terms and covenants
contained in this Agreement, and that the Executive’s execution and performance
of this Agreement will not violate or breach any other agreements between the
Executive and any other person or entity.


 


5

















 


14.                               COUNTERPARTS.


 


This Agreement may be
executed in two counterparts, each of which shall be deemed an original, all of
which together shall contribute one and the same instrument.


 


15.                               LITIGATION COSTS.


 


Should any claim be
commenced between the Parties or their personal representatives concerning any
provision of this Agreement or the rights and duties of any person in relation
to this Agreement, the Party prevailing in such action shall be entitled, in
addition to such other relief as may be granted to a reasonable sum as and for
that Party’s attorney’s fees in such action.


 


IN WITNESS WHEREOF, the Parties have
executed this Agreement as of the date first above written.


 


	
   

  	
  AMYLIN PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
  September 18, 2003

  	
   

  	
  By:

  	
   /s/ JOSEPH C. COOK JR.

  	
   

  
	
   

  	
   

  	
   

  	
  Joseph C. Cook, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Chairman
  of the Board

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  September 18, 2003

  	
   

  	
  By:

  	
  /s/ GINGER L. GRAHAM

  	
   

  
	
   

  	
   

  	
  Ginger L. Graham

  	
   

  
							



 


6