EXHIBIT
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 with the Company, 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
("Nonqualified Stock Options"). (Note: Certain Nonqualified Stock
Options granted under prior versions of the Plan are labeled
"Nonincentive Stock Options".) All options shall be separately
designated Incentive Stock Options or Nonqualified 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, director 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, director or consultant for whose benefit the option
is granted to a Trust, as the context shall require.
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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 Nonqualified 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 two (2) members of the Board
(the "Committee"). One or more of these members may be a "Non-
Employee Director" (a director who (i) is not currently an officer
of the Company or a parent or subsidiary of the Company (as defined
in Rule 16a-1(f) promulgated by the Securities and Exchange
Commission under Section 16 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) or an employee of the Company or a
parent or subsidiary of the Company; (ii) does not receive
compensation from the Company or a parent or subsidiary of the
Company for services rendered in any capacity other than as a member
of the Board (including a consultant) in an amount required to be
disclosed to the Company's stockholders under Rule 404 of Regulation
S-K promulgated by the Securities and Exchange Commission ("Rule
404"); (iii) does not possess an interest in any other transaction
required to be disclosed under Rule 404; or (iv) is not engaged in a
business relationship required to be disclosed under Rule 404, as
all of these provisions are interpreted by the Securities and
Exchange Commission under Rule 16b-3 promulgated under the Exchange
Act.) If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers
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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. Notwithstanding anything else in this
subparagraph 2(c) to the contrary, at any time the Board or the
Committee may delegate to a committee of one or more members of the
Board the authority to grant or amend options to all employees,
directors or consultants or any portion or class thereof.
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 Nonqualified 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 Nonqualified 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. Nonqualified Stock Options may be
granted to employees or directors of, or consultants to, the Company
or its Affiliates or to Trusts of any such employee, director or
consultant.
(b) A director shall in no event be eligible for the
benefits of the Plan unless and until such director is expressly
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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, the
Plan 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, unless the Board expressly decides not
to so comply with respect to one or more specified options with the
concurrence of the affected optionee or optionees
(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 424(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 Nonqualified 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
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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; including but not limited to payment of the purchase
price pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board which results in the
receipt of cash (or a check) by the Company before Common Stock is
issued or the receipt of irrevocable instructions to pay the
aggregate exercise price to the Company from the sales proceeds
before Common Stock is issued.
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 Nonqualified 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,
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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
director or 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 director or consultant; or (ii)
the optionee dies while in the employ of or while serving as a
director or consultant to the Company or an Affiliate, or within not
more than three (3) months after termination of such employment or
relationship as a director or 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 director or consultant; or (iv) that
it may be exercised more than three (3) months after termination of
the optionee's employment or relationship as a director or
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 director or 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.
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(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 Nonqualified 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 Nonqualified 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 Amgen Inc. 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 Amgen Inc.
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
Nonqualified 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
Nonqualified Stock Options shall be Nonqualified 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
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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 of 1933, as amended 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, director
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
director or consultant, the vesting schedule of options granted to
such employee, director or consultant or to the Trusts of such
employee, director or consultant shall be accelerated by twelve
months for each full year the employee has been employed by or the
director or 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) (without including the
references to directors).
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(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 other transaction not involving the
receipt of consideration by the Company), 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. Such adjustments shall be made by the Board or
the Committee, the determination of which shall be final, binding
and conclusive. (The conversion of any convertible securities of
the Company shall not be treated as a "transaction not involving the
receipt of consideration by the Company".)
(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.
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(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:
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(i) Increase the number of shares reserved for
options under the Plan;
(ii) Materially modify the requirements as to
eligibility for participation in the Plan;
(iii) Materially increase the benefits accruing to
participants under the Plan; or
(iv) Require stockholder approval in order to comply
with the requirements of Rule 16b-3.
(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 Incentive Stock Options and/or to
bring the Plan and/or Incentive Stock Options granted under it into
compliance therewith.
(c) Rights and obligations under any option granted
before amendment of the Plan shall not be 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 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.
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