Exhibit 10.1


 


AMENDMENT TO EMPLOYMENT AGREEMENT


 


This AMENDMENT  to EMPLOYMENT
AGREEMENT (this “Amendment”)
is made and entered into as of December 3, 2008 (the “Effective Date”), by
and between Amylin Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), and Daniel
M. Bradbury (the “Executive”).


 


WHEREAS,
the Company and the Executive previously entered into that certain Employment
Agreement entered into effective as of March 7, 2007 (the “Prior Agreement”)
and desire to amend the Prior Agreement as set forth herein, effective as of
the Effective Date, in order to, among other things, clarify the application of
Section 409A of the Internal Revenue Code (the “Code”) to the
benefits provided to the Executive under the Prior Agreement.  Capitalized terms not defined herein shall
have the meaning ascribed to them under the Prior Agreement; and


 


WHEREAS,
the Parties have agreed, subject to the terms and conditions hereof, to amend
and modify the Prior Agreement as provided herein.


 


NOW
THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


SECTION 4.2.   
Amendment to Section 4.2 of the Prior Agreement.  Section 4.2 of the Prior Agreement is
hereby deleted in its entirety and replaced by the following:


 


(a)                                  If
the Executive is terminated by the Company without Cause (as defined below) or
resigns for Good Reason (as defined below), then the Company shall pay the
Executive his base salary and accrued and unused vacation benefits earned in
accordance with Company policies through the date of such termination or
resignation at the rate in effect at the time thereof.  In addition, upon the Executive’s delivery to
the Company of a Release and
Waiver in the form attached hereto as Exhibit A
(the  “Release”) within 21 days of such
termination or resignation, or such
later period of time as may be required by applicable laws, and permits such
Release to become effective in accordance with its terms, the Executive
shall be entitled to the following benefits:


 


(i)                                     severance
pay in the form of a one-time lump sum payment (the “Severance Pay”)
equal to the greater of: (a) 12
months of the Executive’s then current base salary plus the bonus the Executive
would have earned if the Executive had been employed by the Company from the
date of such termination or resignation through the end of the fiscal year of
the Company in which such termination or resignation occurs at the full target
bonus in effect at the time of such termination or resignation and (b) other
such amount as may be determined by the Compensation Committee in its sole
discretion,


 


(ii)                                  provided
that the Executive makes a timely election for continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), direct payment to the insurer through
the date that is 12 months following such termination or resignation of medical
and dental insurance premiums applicable to continued coverage for the
Executive under the Company’s medical and dental plans as in effect on the date
of such termination or resignation at the full beneficiary and dependent levels
then in effect; and


 


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(iii) direct payment to the insurer through the date
that is 12 months following such termination or resignation of the cost of the
Employee’s continued life and disability insurance premiums, to the extent that such coverage is reasonably similar
to that in effect at the date of such termination or resignation.


 


(b)                                If, at the time of
termination of the Executive’s employment by the Company without Cause or the
Executive’s resignation for Good Reason, the Executive is not serving as a
Board member and is not otherwise serving as a consultant to the Company, or if
at the time of such termination or resignation the Executive is continuing to
serve as a Board member or is otherwise serving as a consultant to the Company
but during the 12 month period following such termination or resignation, the
Executive ceases to serve as a Board member and is not otherwise serving as a
consultant to the Company, then, unless the Executive fails to deliver to the
Company the Release within 21
days of such termination or resignation,
or such longer period of time as may be required by applicable laws, and
permits such Release to become effective in accordance with its terms,
effective as of immediately prior to such termination, resignation, cessation
of service as a Board member or cessation of other service as a consultant to
the Company, as applicable, and until the date that is 12 months following such
termination or resignation, the Executive shall serve as a consultant to the
Company pursuant to this paragraph (b) with respect to such general
business matters as may be reasonably agreed to by the Executive and the
Company.  Such service by the Executive
as a consultant shall be performed solely in consideration of the covenants of
the Company set forth in this Section 4.2 and for no additional
consideration.  The consulting services rendered by the Executive shall in no event
exceed twenty percent (20%) of the average level of services performed by the
Executive for the Company over the thirty-six (36) month period immediately
preceding the Executive’s termination of employment by the Company without
Cause or resignation for Good Reason (or the full period of services to the
Company, if the Executive has been providing services to the Company for less
than thirty-six (36) months), as determined under Treasury Regulation Section 1.409A-1(h)(1)(ii).  Any work product or inventions
generated by the Executive during such service as a Consultant shall be deemed
work for hire and shall be the property of the Company.


 


(c)                                  For
purposes of this Section 4.2:


 


(A)                               “Cause” means that,
in the reasonable determination of the Company, the Executive has (i) been
convicted of or pleaded guilty or nolo
contendere to a felony or any crime involving moral turpitude or
dishonesty; (ii) participated in a fraud or act of dishonesty against the
Company; (iii) willfully and materially breached a Company policy; (iv) intentionally
damaged the Company’s property; (v) willfully and materially breached his
Proprietary Information and Inventions Agreement with the Company; (vi) engaged
in conduct that, in the reasonable determination of the Company, demonstrates
gross unfitness to serve; or (vii) repeatedly failed to satisfactorily
perform job duties to which he previously agreed in writing.  The conduct described under clauses (iii), (vi) and
(vii) above will only constitute Cause if such conduct is not cured within
ninety (90) days after the
Executive’s receipt of written notice from the Company or the Board specifying
the particulars of the conduct that may constitute Cause; and


 


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(B)                               “Good Reason” means
the Executive voluntarily terminates his employment with the Company after any
of the following are undertaken without Cause and without the Executive’s
express written consent, provided that
Executive has first provided written notice to any member of the Board within
ninety (90) days of the first such occurrence of such event specifying the
event constituting Good Reason and specifying that Executive intends to
terminate employment not earlier than thirty (30) days after providing such
notice, and the Company has not cured such event(s) within thirty (30)
days (or such longer period as may be specified by Executive in such notice)
after such written notice is received by such member of the Board (the “Cure Period”), and Executive resigns within thirty (30)
days following the end of the Cure Period:


 


(i)                                     a
material reduction in the Executive’s
base salary, except for across-the-board reductions in base salaries of less
than ten percent (10%) similarly affecting all similarly situated executives of
comparable rank with the Executive;


 


(ii)                                a material reduction in the Executive’s authority, duties or
responsibilities as described in this Agreement;


 


(iii)                             a requirement that the Executive report to a corporate officer or
employee instead of reporting directly to the Board;


 


(iv)                            a relocation of the Company’s
principal executive offices to a
location more than fifty (50) miles from the location at which the
Executive was performing his duties immediately prior to such relocation
(excluding in any case travel on the Company’s business consistent with the
Executive’s duties as Chief Executive Officer of the Company); or


 


(v)                               the failure by the Company to comply with any material provision of this
Agreement.


 


(d)                               The
Severance Pay shall be paid within sixty (60) days after Executive’s
termination or resignation.


 


SECTION 4.6.   
Addition of new Section 4.6 of the Prior Agreement.  The following Section 4.6 is hereby
added to the Prior Agreement:


 


Application
of Internal Revenue Code Section 409A.
Notwithstanding anything to the contrary set forth herein, any payments and
benefits provided under this Agreement (the “Severance Benefits”) that constitute a “nonqualified deferred compensation plan”
within the meaning of Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect
(collectively “Section 409A”) shall not commence in connection with Executive’s termination of employment
unless and until Executive has also incurred a “separation from service” (as
such term is defined in Treasury Regulation Section 1.409A-1(h) (“Separation From Service”).  For the avoidance of doubt, it is intended
that payments of the Severance Benefits set forth in this Agreement satisfy, to
the greatest extent possible, the exemptions from the application of Section 409A
provided under Treasury Regulation Sections 1.409A-1(a)(5), 1.409A-1(b)(4), 1.409A-1(b)(5) and
1.409A-1(b)(9).  However, if the Severance Benefits constitute “nonqualified
deferred 


 


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compensation plan” under Section 409A, then to the extent
required to comply with Section 409A, and, if the Executive is, on the
date of Executive’s Separation from Service, a “specified employee” of the
Company or any successor entity thereto, as such term is defined in Section 409A
(a “Specified
Employee”), then,
the timing of the Severance Benefit payments shall be delayed until the earlier
to occur of:  (i) the date that is
six months after Executive’s Separation from Service or (ii) the date of
Executive’s death.  To the extent the
payments and benefits under this Agreement are subject to Section 409A of
the Code, this Agreement shall be interpreted, construed and administered in a
manner that satisfies the requirements of Sections 409A.  As provided in Internal Revenue Notice
2007-86, notwithstanding any other provision of this Agreement, with respect to
an amendment to change a time or form of payment under this Agreement made on
or after January 1, 2008 and on or before December 31, 2008, the
amendment shall apply only with respect to payments that would not otherwise be
payable in 2008, and shall not cause payments to be made in 2008 that would not
otherwise be payable in 2008.


 


Notwithstanding
any other payment schedule set forth in this Agreement, none of the Severance
Benefits will be paid or otherwise delivered prior to the effective date of the
Release.


 


SECTION 8.   
Amendment to Section 8 of the Prior Agreement.  Section 8 of the Prior Agreement is
hereby deleted in its entirety and replaced by the following:


 


This Agreement, including 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 the
Prior Agreement.  To the extent this
Agreement conflicts with the Proprietary Information and Inventions Agreement,
the Proprietary Information and Inventions Agreement controls.  Notwithstanding
the foregoing, this Agreement shall not supersede the Executive’s rights under
the Company’s employee benefit plans, policies or arrangements as in effect
from time to time, including, without limitation, the Company’s equity plans
(and awards thereunder) and the plans, policies and arrangements described in Section 3.5,
or the Executive’s rights to indemnification or insurance for liability as an
officer, director or employee of the Company or any of its subsidiaries.


 


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


 


	
   

  	
   

  	
  AMYLIN PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated: 

  	
          12/3/2008

  	
   

  	
  By:

  	
      /s/
  Joseph C. Cook, Jr.

  
	
   

  	
   

  	
  Name: Joseph C. Cook, Jr.

  
	
   

  	
   

  	
  Chairman of
  the Board

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated: 

  	
          12/3/2008

  	
   

  	
  By:

  	
      /s/
  Daniel M. Bradbury

  
	
   

  	
   

  	
  Name: Daniel M. Bradbury

  



 


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