EXHIBIT 10.2
AMGEN INC.
AMENDED AND RESTATED 1984 STOCK OPTION PLAN
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by
which selected employees, directors (if declared eligible under
paragraph 4) and consultants to Amgen Inc., a Delaware corporation
(the "Company"), and its Affiliates, as defined in subparagraph
1(b), directly or indirectly through trusts for the benefit of their
families, may be given an opportunity to purchase stock of the
Company.
(b) The word "Affiliate" as used in the Plan means any
parent corporation or subsidiary corporation of the Company, as
those terms are defined in Sections 424(e) and (f), respectively, of
the Internal Revenue Code of 1986, as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain
the services of persons now holding positions, to secure and retain
the services of persons capable of filling such positions, and to
provide incentives for such persons to exert maximum efforts for the
success of the Company.
(d) The Company intends that the options issued under the
Plan shall, in the discretion of the Board of Directors of the
Company (the "Board") or any committee to which responsibility for
administration of the Plan has been delegated pursuant to
subparagraph 2(c), be either incentive stock options as that term is
used in Section 422 of the Code ("Incentive Stock Options"), or
options which do not qualify as Incentive Stock Options
("Nonincentive Stock Options"). All options shall be separately
designated Incentive Stock Options or Nonincentive Stock Options at
the time of grant, and in such form as issued pursuant to paragraph
5, and a separate certificate or certificates shall be issued for
shares purchased on exercise of each type of option.
(e) The word "Trust" as used in the Plan shall mean a
trust created for the benefit of the employee or consultant, his or
her spouse, or members of their immediate family. The word optionee
shall mean the person to whom the option is granted or the employee
or consultant for whose benefit the option is granted to a Trust, as
the context shall require.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless
and until the Board delegates administration to a committee, as
provided in subparagraph 2(c).
(b) The Board shall have the power, subject to, and
within the limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the
persons eligible under the Plan shall be granted options; when and
how the option shall be granted; whether the option will be an
Incentive Stock Option or a Nonincentive Stock Option; the
provisions of each option granted (which need not be identical),
including the time or times during the term of each option within
which all or portions of such option may be exercised; and the
number of shares for which an option shall be granted to each such
person.
(2) To construe and interpret the Plan and options
granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise of
this power, may correct any defect, omission or inconsistency in the
Plan or in any option agreement, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.
(3) To amend the Plan as provided in paragraph 10.
(4) Generally, to exercise such powers and to
perform such acts as the Board deems necessary or expedient to
promote the best interests of the Company.
(c) The Board may delegate administration of the Plan to
a committee composed of not fewer than three (3) members of the
Board (the "Committee"), all of the members of which Committee shall
be disinterested persons, if required and as defined by the
provisions of subparagraph 2(d). If administration is delegated to
a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the
Board, subject, however, to such resolutions, not inconsistent with
the provisions of the Plan, as may be adopted from time to time by
the Board. The Board may abolish the Committee at any time and
revest in the Board the administration of the Plan.
(d) The term "disinterested person", as used in this
Plan, shall mean an administrator of the Plan, whether a member of
the Board or of any Committee to which responsibility for
administration of the Plan has been delegated pursuant to
subparagraph 2(c): (i) who is not at the time he or she exercises
discretion in administering the Plan eligible and has not at any
time within one (1) year prior thereto been eligible for selection
as a person to whom stock may be allocated or to whom stock options
or stock appreciation rights may be granted pursuant to the Plan or
any other plan of the Company or any of its Affiliates entitling the
participants therein to acquire stock, stock options or stock
appreciation rights of the Company or any of its Affiliates; or (ii)
who is otherwise considered to be a "disinterested person" in
accordance with the rules, regulations or interpreters of the
Securities and Exchange Commission. Any such person shall otherwise
comply with the requirements of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
from time to time in effect.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 9 relating to
adjustments upon changes in stock, the stock that may be sold
pursuant to options granted under the Plan shall not exceed in the
aggregate twenty million four hundred thousand (20,400,000) shares
of the Company's $.0001 par value common stock (the "Common Stock").
If any option granted under the Plan shall for any reason expire or
otherwise terminate without having been exercised in full, the
Common Stock not purchased under such option shall again become
available for the Plan.
(b) The Common Stock subject to the Plan may be unissued
shares or reacquired shares, bought on the market or otherwise.
(c) An Incentive Stock Option may be granted to an
eligible person under the Plan only if the aggregate fair market
value (determined as of the times the respective Incentive Stock
Options are granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by such
optionee during any calendar year under all such plans of the
Company and its Affiliates does not exceed one hundred thousand
dollars ($100,000). Should it be determined that any portion of an
Incentive Stock Option granted under the Plan does not qualify for
treatment as an Incentive Stock Option by reason of exceeding such
maximum, such option shall be considered a Nonincentive Stock Option
to the extent, but only to the extent, of such excess. Should it be
determined that an entire option does not qualify for treatment as
an Incentive Stock Option, such option shall, in its entirety, be
considered a Nonincentive Stock Option.
4. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to
employees of the Company or its Affiliates, and a director or
officer of the Company shall not be eligible to receive Incentive
Stock Options unless such director or officer is also an employee of
the Company or any Affiliate. Nonincentive Stock Options may be
granted only to employees of, or consultants to, the Company or its
Affiliates (including directors or officers who so qualify) or to
Trusts of any such employee or consultant.
(b) A director shall in no event be eligible for the
benefits of the Plan unless and until such director is expressly
declared eligible to participate in the Plan by action of the Board
or the Committee, and only if, at any time discretion is exercised
by the Board in the selection of a director as a person to whom
options may be granted, or in the determination of the number of
shares which may be covered by options granted to a director: (i) a
majority of the Board and a majority of the directors acting in such
matter are disinterested persons, as defined in subparagraph 2(d);
(ii) the Committee consists solely of "disinterested persons" as
defined in subparagraph 2(d); or (iii) the Plan otherwise complies
with the requirements of Rule 16b-3 promulgated under the Exchange Act.
The Board shall otherwise comply with the requirements of Rule 16b-3
promulgated under the Exchange Act, as from time to time in effect.
(c) No person shall be eligible for the grant of an
Incentive Stock Option under the Plan if, at the time of grant, such
person owns (or is deemed to own pursuant to Section 425(d) of the
Code) stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of
any of its Affiliates unless the exercise price of such Incentive
Stock Option is at least one hundred ten percent (110%) of the fair
market value of the Common Stock at the date of grant and the term
of the Incentive Stock Option does not exceed five (5) years from
the date of grant.
5. OPTION PROVISIONS.
Each option shall be in such form and shall contain such
terms and conditions as the Board or the Committee shall deem
appropriate. The provisions of separate options need not be
identical, but each option shall include (through incorporation of
provisions hereof by reference in the option or otherwise) the
substance of each of the following provisions:
(a) The term of any option shall not be greater than ten
(10) years from the date it was granted.
(b) The exercise price of each Incentive Stock Option
shall be not less than one hundred percent (100%) of the fair market
value of the Common Stock subject to the option on the date the
option is granted. The exercise price of each Nonincentive Stock
Option shall be not less than eighty-five percent (85%) of the fair
market value of the Common Stock subject to the option on the date
the option is granted.
(c) The purchase price of Common Stock acquired pursuant
to an option shall be paid, to the extent permitted by applicable
statutes and regulations, either (i) in cash at the time the option
is exercised, or (ii) at the discretion of the Board or the
Committee, either at the time of grant or exercise of the option (A)
by delivery to the Company of other Common Stock of the Company, (B)
according to a deferred payment or other arrangement (which may
include, without limiting the generality of the foregoing, the use
of other Common Stock of the Company) with the person to whom the
option is granted or to whom the option is transferred pursuant to
subparagraph 5(d), or (C) in any other form of legal consideration
that may be acceptable to the Board or the Committee in their
discretion.
In the case of any deferred payment arrangement, interest shall
be payable at least annually and shall be charged at not less than
the minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Code, of any
amounts other than amounts stated to be interest under the deferred
payment arrangement.
(d) An option granted to a natural person shall be
exercisable during the lifetime of such person only by such person,
provided that such person during such person's lifetime may
designate a Trust to be such person's beneficiary with respect to
any Incentive Stock Options granted after February 25, 1992 and with
respect to any Nonincentive Stock Options, and such beneficiary
shall, after the death of the person to whom the option was granted,
have all the rights that such person has while living, including the
right to exercise the option. In the absence of such designation,
after the death of the person to whom the option is granted, the
option shall be exercisable by the person or persons to whom the
optionee's rights under such option pass by will or by the laws of
descent and distribution.
(e) The total number of shares of Common Stock subject to
an option may, but need not, be allotted in periodic installments
(which may, but need not, be equal). From time to time during each
of such installment periods, the option may be exercised with
respect to some or all of the shares allotted to that period, and/or
with respect to some or all of the shares allotted to any prior
period as to which the option was not fully exercised. During the
remainder of the term of the option (if its term extends beyond the
end of the installment periods), the option may be exercised from
time to time with respect to any shares then remaining subject to
the option. The provisions of this subparagraph 5(e) are subject to
any option provisions governing the minimum number of shares as to
which an option may be exercised.
(f) The Company may require any optionee, or any person
to whom an option is transferred under subparagraph 5(d), as a
condition of exercising any such option: (1) to give written
assurances satisfactory to the Company as to the optionee's
knowledge and experience in financial and business matters and/or to
employ a purchaser representative who has such knowledge and
experience in financial and business matters, and that he or she is
capable of evaluating, alone or together with the purchaser's
representative, the merits and risks of exercising the option; and
(2) to give written assurances satisfactory to the Company stating
that such person is acquiring the Common Stock subject to the option
for such person's own account and not with any present intention of
selling or otherwise distributing the Common Stock. These
requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares
upon the exercise of the option has been registered under a then
currently effective registration statement under the Securities Act
of 1933, as amended (the "Securities Act"); or (ii) as to any
particular requirement, a determination is made by counsel for the
Company that such requirement need not be met in the circumstances
under the then applicable federal securities laws.
(g) An option shall terminate three (3) months after
termination of the optionee's employment or relationship as a
consultant with the Company or an Affiliate, unless (i) such
termination is due to such person's permanent and total disability,
within the meaning of Section 422(c)(6) of the Code, in which case
the option may, but need not, provide that it may be exercised at
any time within one (1) year following such termination of
employment or relationship as a consultant; or (ii) the optionee
dies while in the employ of or while serving as a consultant to the
Company or an Affiliate, or within not more than three (3) months
after termination of such employment or relationship as a
consultant, in which case the option may, but need not, provide that
it may be exercised at any time within eighteen (18) months
following the death of the optionee by the person or persons to whom
the optionee's rights under such option pass by will or by the laws
of descent and distribution; (iii) the option by its terms specifies
that it shall terminate sooner than three (3) months after
termination of the optionee's employment or relationship as a
consultant; or (iv) that it may be exercised more than three (3)
months after termination of the optionee's employment or
relationship as a consultant with the Company or an Affiliate. This
subparagraph 5(g) shall not be construed to extend the term of any
option or to permit anyone to exercise the option after expiration
of its term, nor shall it be construed to increase the number of
shares as to which any option is exercisable from the amount
exercisable on the date of termination of the optionee's employment
or relationship as a consultant.
(h) The option may, but need not, include a provision
whereby the optionee may elect at any time during the term of his or
her employment or relationship as a consultant with the Company or
any Affiliate to exercise the option as to any part or all of the
shares subject to the option prior to the stated vesting date of the
option or of any installment or installments specified in the
option. Any shares so purchased from any unvested installment or
option may be subject to a repurchase right in favor of the Company
or to any other restriction the Board or the Committee determines to
be appropriate.
(i) To the extent provided by the terms of an option, the
optionee may satisfy any federal, state or local tax withholding
obligation relating to the exercise of such option by any of the
following means or by a combination of such means: (1) tendering a
cash payment; (2) authorizing the Company to withhold from the
shares of the Common Stock otherwise issuable to the participant as
a result of the exercise of the stock option a number of shares
having a fair market value less than or equal to the amount of the
withholding tax obligation; or (3) delivering to the Company owned
and unencumbered shares of the Common Stock having a fair market
value less than or equal to the amount of the withholding tax
obligation.
(j) Without in any way limiting the authority of the
Board or Committee to make or not to make grants of Options
hereunder, the Board or Committee shall have the authority (but not
an obligation) to include as part of any Option agreement, and all
outstanding Nonincentive Stock Options, to the extent there are unvested
options on June 30, 1991, shall be amended to include, a provision
entitling the optionee to a further Option (a "Re-Load Option") in the
event the optionee exercises the Option evidenced by the Option agreement,
in whole or in part, by surrendering other shares of Common Stock in
accordance with this Plan and the terms and conditions of the Option
agreement. Any such Re-Load Option (i) shall be for a number of
shares equal to the number of shares surrendered as part or all of
the exercise price of such Option (or surrendered for shares which
were unvested on June 30, 1991 in the case of an amended
Nonincentive Stock Option); (ii) shall have an expiration date which
is the same as the expiration date of the Option the exercise of
which gave rise to such Re-Load Option; (iii) shall have an exercise
price which is equal to one hundred percent (100%) of the fair
market value of the Common Stock subject to the Re-Load Option on
the date of exercise of the original Option or, in the case of a Re-
Load Option which is an Incentive Stock Option and which is granted
to a 10% stockholder (as defined in subparagraph 4(c)), shall have
an exercise price which is equal to one hundred and ten percent
(110%) of the fair market value of the Common Stock subject to the
Re-Load Option on the date of exercise of the original Option; and
(iv) shall be granted under the 1988 Stock Option Plan, if
sufficient shares are available under subparagraph 3(a) of that
Plan, and if sufficient shares of Common Stock are not so available,
shall be granted under the 1991 Equity Incentive Plan to the extent
shares of Common Stock are available under that Plan.
Any such Re-Load Option may be an Incentive Stock Option or a
Nonincentive Stock Option, as the Board or Committee may designate
at the time of the grant of the original Option, except that all Re-
Load Options on unvested shares (as of June 30, 1991) of
Nonincentive Stock Options shall be Nonincentive Stock Options,
provided, however, that the designation of any Re-Load Option as an
Incentive Stock Option shall be subject to the one hundred thousand
dollars ($100,000) annual limitation on exercisability of Incentive
Stock Options described in subparagraph 3(c) of the Plan and in
Section 422(d) of the Code. There shall be no Re-Load Options on a
Re-Load Option. Any such Re-Load Option shall be subject to the
availability of sufficient shares under the Amgen Inc. 1988 Stock
Option Plan or under the Amgen Inc. 1991 Equity Incentive Plan and
shall be subject to such other terms and conditions as the Board or
Committee may determine.
6. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the
Plan, the Company shall keep available at all times the number of
shares of Common Stock required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such
authority as may be required to issue and sell shares of stock upon
exercise of the options granted under the Plan; provided, however,
that this undertaking shall not require the Company to register
under the Securities Act either the Plan, any option granted under
the Plan or any Common Stock issued or issuable pursuant to any such
option. If, after reasonable efforts, the Company is unable to obtain
from any such regulatory commission or agency the authority that counsel
for the Company deems necessary for the lawful issuance and sale of
stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell Common Stock upon exercise
of such options unless and until such authority is obtained.
7. USE OF PROCEEDS FROM COMMON STOCK.
Proceeds from the sale of Common Stock pursuant to options
granted under the Plan shall constitute general funds of the
Company.
8. MISCELLANEOUS.
(a) The Board or the Committee shall have the power to
accelerate the time during which an option may be exercised or the
time during which an option or any part thereof will vest pursuant to
subparagraph 5(e), notwithstanding the provisions in the option
stating the time during which it may be exercised or the time during
which it will vest. Each option providing for vesting pursuant to
subparagraph 5(e) shall also provide that if the employee or
consultant should die during the term of his or her employment with
the Company or his or her affiliation with the Company as a
consultant, the vesting schedule of options granted to such employee
or consultant or to the Trusts of such employee or consultant shall
be accelerated by twelve months for each full year the employee has
been employed by or the consultant has been affiliated with the
Company. Options granted under the Plan that are outstanding on
February 25, 1992, shall be amended to include the accelerated
vesting provided for in the preceding sentence of this Paragraph
8(a).
(b) Neither an optionee nor any person to whom an option
is transferred under subparagraph 5(d) shall be deemed to be the
holder of, or to have any of the rights of a holder with respect to,
any shares subject to such option unless and until such person has
satisfied all requirements for exercise of the option pursuant to
its terms.
(c) Throughout the term of any option granted pursuant to
the Plan, the Company shall make available to the holder of such
option, not later than one hundred twenty (120) days after the close
of each of the Company's fiscal years during the option term, upon
request, such financial and other information regarding the Company
as comprises the annual report to the shareholders of the Company
provided for in the bylaws of the Company.
(d) Nothing in the Plan or any instrument executed or
option granted pursuant thereto shall confer upon any eligible
participant or optionee any right to continue in the employ of the
Company or any Affiliate or shall affect the right of the Company or
any Affiliate to terminate the employment of any eligible
participant or optionee with or without cause.
9. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
(a) If any change is made in the Common Stock subject to
the Plan, or subject to any option granted under the Plan (through
merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split,
liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or otherwise), the Plan and
outstanding options will be appropriately adjusted in the class(es)
and the maximum number of shares subject to the Plan and the
class(es) and the number of shares and price per share of Common
Stock subject to outstanding options.
(b) Notwithstanding anything to the contrary in this Plan,
in the event of a Change in Control (as hereinafter defined), then,
to the extent permitted by applicable law: (i) the time during which
options become vested shall automatically be accelerated so that the
unvested portions of all options shall be vested prior to the Change
in Control and (ii) the time during which the options may be
exercised shall automatically be accelerated to prior to the Change
of Control. Upon or after the acceleration of the vesting and
exercise periods, at the election of the holders of the options, the
options may be: (x) exercised or, if the surviving or acquiring
corporation agrees to assume the options or substitute similar
options, (y) assumed; or (z) replaced with substitute options.
Options not exercised, substituted or assumed prior to or upon the
Change in Control shall be terminated.
(c) For purposes of the Plan, a "Change of Control" shall
be deemed to have occurred at any of the following times:
(i) Upon the acquisition (other than from the
Company) by any person, entity or "group," within the meaning of
Section 13(d) (3) or 14(d) (2) of the Exchange Act (excluding, for
this purpose, the Company or its affiliates, or any employee benefit
plan of the Company or its affiliates which acquires beneficial
ownership of voting securities of the Company), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more of either the then
outstanding shares of Common Stock or the combined voting power of
the Company's then outstanding voting securities entitled to vote
generally in the election of directors; or
(ii) At the time individuals who, as of October 23,
1995, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any person becoming a director subsequent to October 23, 1995, whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or nomination
of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the Directors of the Company, as such terms are used in
Rule 14A-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of the Plan, considered as though such person
were a member of the Incumbent Board; or
(iii) Immediately prior to the consummation by the
Company of a reorganization, merger, consolidation, (in each case,
with respect to which persons who were the stockholders of the
Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than fifty
percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities) or a
liquidation or dissolution of the Company or of the sale of all or
substantially all of the assets of the Company; or
(iv) The occurrence of any other event which the
Incumbent Board in its sole discretion determines constitutes a
Change of Control.
10. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may
amend the Plan. However, except as provided in paragraph 9 relating
to adjustments upon changes in the Common Stock, no amendment shall
be effective unless approved by the stockholders of the Company
within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reser ved for
options under the Plan;
(ii) Materially modify the requirements as to
eligibility for participation in the Plan; or
(iii) Materially increase the benefits accruing to
participants under the Plan.
(b) It is expressly contemplated that the Board may amend
the Plan in any respect the Board deems necessary or advisable to
provide optionees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations
promulgated thereunder relating to employee incentive stock options
and/or to bring the Plan and/or options granted under it into
compliance therewith.
(c) Rights and obligations under any option granted
before amendment of the Plan shall not be altered or impaired by any
amendment of the Plan, unless (i) the Company requests the consent
of the person to whom the option was granted, and (ii) such person
consents in writing.
11. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any
time. Unless sooner terminated, the Plan shall terminate on March
16, 1994. No options may be granted under the Plan while the Plan
is suspended or after it is terminated.
(b) Rights and obligations under any option granted while
the Plan is in effect shall not be altered or impaired by suspension
or termination of the Plan, except with the consent of the person to
whom the option was granted.
12. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the
Board.