Exhibit 10.4


 


CONSULTING
AGREEMENT


 


                The following
contains all the items of an at-will consulting agreement between AMYLIN PHARMACEUTICALS, INC., a Delaware corporation (the “Company”),
located at 9360 Towne Centre Drive, San Diego, California 92121, and Alain
Baron  (“Consultant”), an individual located at 12863 Baywind Point, San
Diego, CA 92130, effective as of June 1, 2008 (the “Effective Date”).


 


                The nature of
the services Consultant will provide as a consultant to the Company, the amount
of time committed and Consultant’s compensation are set forth in Exhibit A
hereto.  In rendering such services to
the Company, Consultant shall act as an independent contractor and not as an
employee of the Company and shall be free to dispose of such portion of Consultant’s
entire time, energy and skill as Consultant has not agreed to devote to the
Company.  The Company or Consultant may
terminate this Agreement at any time, with or without cause.


 


                Consultant
understands that as part of the consideration for his retention as a consultant
by the Company, he has not brought and will not bring with him to the Company
or use in the performance of his responsibilities at the Company any equipment,
supplies, facility, or trade secret information of any current or former employer
which are not generally available to the public, unless Consultant has obtained
written authorization for their possession and use.  Consultant also understands that, in his
retention as a consultant with the Company, Consultant is not to breach any obligation
of confidentiality that he has to any third party, and Consultant agrees that
he shall fulfill all such obligations during his retention as consultant with
the Company.


 


                Consultant understands that the Company possesses and
will continue to possess information that has been created, discovered or
developed by the Company (or that has otherwise become known to the Company)
which has commercial value to the Company. 
This information includes, but is not limited to, (a) information
created, discovered, developed, or made known by Consultant or to Consultant
arising out of or in connection with his retention as a consultant by the
Company, and (b) information in which property rights have been assigned
or otherwise conveyed to the Company. 
All of the aforementioned information is hereinafter called “Proprietary
Information.”  By way of illustration,
but not limitation, Proprietary Information includes trade secrets, processes,
formulae, data and know-how, improvements, inventions, techniques, strategies,
and forecasts.


 


                In
consideration of his retention as a consultant to the Company, and the
compensation received by him from the Company from time to time, Consultant
hereby agrees as follows:


 


                1.             All Proprietary Information shall
be the sole property of the Company and its assigns, and the Company and its
assigns shall be the sole owner of all patents and other rights in connection
therewith.  Consultant hereby assigns to
the Company any rights he may have or acquire in all Proprietary Information.  At all times during his retention as a
consultant by the Company and at all times after termination of such retention
as a consultant, Consultant will keep in confidence and trust all Proprietary
Information, and will not use or disclose any Proprietary Information or
anything relating to it without the express written consent of the Company,
except as may be necessary in the ordinary course of performing his duties as a
consultant of the Company.


 


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                2.             Consultant agrees that during the
period that he is retained as a consultant to the Company, he will not, without
the Company’s express written consent, engage in any employment or activity
(whether as a consultant, advisor or otherwise) in any business competitive
with the Company.


 


                3.             All documents, data, records,
apparatuses, equipment and other physical property, whether or not pertaining
to Proprietary Information, furnished to Consultant by the Company or produced
by Consultant or others in connection with his retention as a consultant shall
be and remain the sole property of the Company and shall be returned promptly
to the Company as and when requested by the Company.  Should the Company not so request, Consultant
shall return and deliver all such property upon termination of his retention as
a consultant by himself or by the Company for any reason, and Consultant will
not take with him any such property or any reproduction of such property upon
such termination.


 


                4.             Consultant agrees that for a period
of one (1) year following termination of his retention as a consultant
with the Company, he will not solicit or in any manner encourage employees of
the Company to leave its employ.


 


                5.             Consultant will promptly disclose
to the Company, or any persons designated by it, all improvements, inventions,
discoveries, ideas, formulae, processes, techniques, know-how and data, whether
or not patentable, made or conceived or reduced to practice or learned by
Consultant, either alone or jointly with others, during the period of his
retention as a consultant which (a) are within the scope of the consulting
services to be provided by Consultant under this Agreement and are related to
or useful in the business of the Company, or (b) result from tasks
assigned Consultant by the Company, or (c) are funded by the Company, or (d) result
from use of premises owned, leased or contracted for by the Company (all said
improvements, inventions, discoveries, ideas, formulae, processes, techniques,
know-how and data shall be collectively hereinafter called “Inventions”).  Such disclosure shall continue for one (1) year
after termination of this Agreement with respect to anything that would be an
Invention if made, conceived, reduced to practice or learned during the term
hereof.  Consultant agrees that all
Inventions shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents and other rights
in connection therewith.  Consultant
hereby assigns to the Company any rights he may have or acquire in all
Inventions.  Consultant further agrees as
to all Inventions to assist the Company in every proper way (but at the Company’s
expense) to obtain and from time to time enforce patents on the Inventions in
any and all countries.


 


                6.             Consultant represents that his
performance of all the terms of this Agreement and that his retention as a
consultant by the Company does not and will not breach any agreement to keep in
confidence proprietary information acquired by Consultant in confidence or in
trust prior to his retention as a consultant by the Company. Consultant has not
entered into, and Consultant agrees he will not enter into, any agreement
either written or oral in conflict herewith.


 


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                7.             Consultant
shall perform the services in accordance with all applicable laws, rules and
regulations and represents and warrants that he has never been (i) debarred
or convicted of a crime for which a person can be debarred, under Section 306(a) or
306(b) of the Generic Drug Enforcement Act of 1992 or (ii) threatened
to be debarred or indicted for a crime or otherwise engaged in conduct for
which a person can be debarred, under Section 306(a) or (b).  Consultant agrees that he will promptly
notify the Company in the event of any such debarment, conviction, threat or
indictment.


 


                8.             Consultant
agrees that all writings, reports, drawings, photographs, engineering drawings,
sketches, models, sound recordings, software, audio visual recordings and other
creative works prepared by Consultant pursuant to this Agreement will be deemed
to have been prepared for the Company and will be considered as works made for
hire and all rights and the copyrights therefore will be owned by the Company.  Consultant hereby assigns to the Company all
rights, titles and interests in and to said copyrights in the United States and
elsewhere, including registration and publication rights, rights to create
derivative works and all other rights which are incident to copyright
ownership.  In the event any court holds
such creative works not to be works for hire, Consultant will assign such
creative works to the Company, at its request, in consideration for the
compensation paid to the Consultant hereunder.


 


                9.             Consultant
agrees that in addition to any other rights and remedies available to the
Company for any breach by Consultant of his obligations hereunder, the Company
shall be entitled to enforcement of Consultant’s obligations hereunder by court
injunction.


 


                10.           If
any provision of this Agreement shall be declared invalid, illegal or
unenforceable, such provision shall be severed and all remaining provisions
shall continue in full force and effect.


 


                11.           This
Agreement shall be effective as of the Effective Date, and unless earlier
terminated as provided hereunder, shall continue until May 31, 2009, when
it shall automatically expire.


 


                12.           The term Company, as used herein,
shall include any subsidiary or affiliate of Amylin Pharmaceuticals, Inc.


 


                13.           Consultant
shall not have the right to assign, by operation of law or otherwise, or
subcontract any or all of the Services under this Agreement to any third party,
without Company’s prior written consent. This Agreement shall be binding upon
Consultant, his heirs, executors, assigns and administrators and shall inure to
the benefit of the Company, its successors and assigns.


 


                14.           This
Agreement, including any Exhibits attached hereto, represent the entire
Agreement between the parties with respect to the subject matter hereof.  The terms and conditions contained in any
documents utilized by either party in connection with this Agreement
(including, without limitation, any purchase order) at variance with or in
addition to those set forth herein, will be of no force and effect with respect
to the transactions contemplated under this Agreement.


 


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                15.           This Agreement shall be governed by
and construed in accordance with the laws of the State of California (except
its choice of law rules), and the parties to this Agreement hereby submit to
the jurisdiction and venue of the California courts, both state and federal.


 


                16.           This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.  This Agreement may be
executed and delivered by facsimile and upon such delivery the facsimile
signature will be deemed to have the same effect as if the original signature
had been delivered to the other party.


 


 


	
  AGREED AND ACCEPTED:

  	
  AGREED AND ACCEPTED:

  
	
   

  	
   

  
	
   

  	
  Amylin Pharmaceuticals, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Alain Baron

  	
   

  	
  /s/ Lloyd Rowland

  
	
  Alain Baron

  	
  Lloyd Rowland

  
	
   

  	
  VP, Governance and Compliance,

  
	
   

  	
  and Secretary

  
			



 


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EXHIBIT A


 


	
  Nature of Consulting:

  	
   

  	
  Consultant shall consult with and provide to the Company, as may be
  requested by the Company during the term of this Agreement, the following
  consulting services: Periodic consultation on projects. Any activity of
  Consultant with respect to such subject matter shall be deemed to be in
  connection with his consulting.

  
	
   

  	
   

  	
   

  
	
  Compensation:

  	
   

  	
  In consideration of the maintenance by Consultant of the terms and
  conditions of this Agreement, including consultation with and provision of
  services to the Company in the aforementioned subject matter, Consultant
  shall be paid at an hourly rate of $425.00/hour.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In addition, Company shall reimburse Consultant for the reasonable
  expenses incurred by Consultant related to the consulting services, provided
  that such expenses are pre-approved by Company and documented by receipts.
  Consultant shall submit invoices on a monthly basis (in order of Amylin
  preference) to (i) by email to accounts.payable@amylin.com, (ii) by
  fax to 858-334-1186, or (iii) by mail to Accounts Payable Department,
  Amylin Pharmaceuticals, Inc., 9360 Towne Centre Drive, San Diego,
  California 92121 (or to such other address as may be designated by AMYLIN),
  and such invoice(s) shall be paid by Company within thirty (30) days of
  Company’s receipt of the invoice. Company will, in accordance with its
  policy, issue a purchase order for the services hereunder with a purchase
  order number that shall be referenced by Consultant in each invoice.

  



 


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