EXHIBIT
AMGEN INC.
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
(a) The purpose of the Amgen Inc. Employee Stock Purchase
Plan (the "Plan") is to provide a means by which employees of Amgen
Inc., a Delaware corporation (the "Company"), and its Affiliates, as
defined in subparagraph 1(b), which are designated as provided in
subparagraph 2(b), 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 its employees, to secure and retain the services of new
employees, and to provide incentives for such persons to exert
maximum efforts for the success of the Company.
(d) The Company intends that the rights to purchase stock
of the Company granted under the Plan be considered options issued
under an "employee stock purchase plan" as that term is defined in
Section 423(b) of the Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of
Directors (the "Board") of the Company unless and until the Board
delegates administration to a Committee, as provided in subparagraph
2(c). Whether or not the Board has delegated administration, the
Board shall have the final power to determine all questions of policy
and expediency that may arise in the administration of the Plan.
(b) The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase
stock of the Company shall be granted and the provisions of each
offering of such rights (which need not be identical).
(ii) To designate from time to time which Affiliates
of the Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights
granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise of
1
this power, may correct any defect, omission or inconsistency in the
Plan, in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) 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"). 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.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 12 relating to
adjustments upon changes in stock, the stock that may be sold
pursuant to rights granted under the Plan shall not exceed in the
aggregate six million (6,000,000)(*1) shares of the Company's $.0001
par value common stock (the "Common Stock"). If any right granted
under the Plan shall for any reason terminate without having been
exercised, the Common Stock not purchased under such right shall
again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares
or reacquired shares, bought on the market or otherwise.
4. GRANT OF RIGHTS; OFFERING.
The Board or the Committee may from time to time grant or
provide for the grant of rights to purchase Common Stock of the
Company under the Plan to eligible employees (an "Offering") on a
date or dates (the "Offering Date(s)") selected by the Board or the
Committee. Each Offering shall be in such form and shall contain
such terms and conditions as the Board or the Committee shall deem
appropriate. If an employee has more than one right outstanding
under the Plan, unless he or she otherwise indicates in agreements or
notices delivered hereunder: (1) each agreement or notice delivered
by that employee will be deemed to apply to all of his or her rights
under the Plan, and (2) a right with a lower exercise price (or an
earlier-granted right, if two rights have identical exercise prices),
will be exercised to the fullest possible extent before a right with
a higher exercise price (or a later-granted right, if two rights have
identical exercise prices) will be exercised. The provisions of
2
separate Offerings need not be identical, but each Offering shall
include (through incorporation of the provisions of this Plan by
reference in the Offering or otherwise) the substance of the
provisions contained in paragraphs 5 through 8, inclusive.
5. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company
or, as the Board or the Committee may designate as provided in
subparagraph 2(b), to employees of any Affiliate of the Company.
Except as provided in subparagraph 5(b), an employee of the Company
or any Affiliate shall not be eligible to be granted rights under the
Plan, unless, on the Offering Date, such employee has been in the
employ of the Company or any Affiliate for such continuous period
preceding such grant as the Board or the Committee may require, but
in no event shall the required period of continuous employment be
equal to or greater than two (2) years. In addition, unless
otherwise determined by the Board or the Committee and set forth in
the terms of the applicable Offering, no employee of the Company or
any Affiliate shall be eligible to be granted rights under the Plan,
unless, on the Offering Date, such employee's customary employment
with the Company or such Affiliate is at least twenty (20) hours per
week and at least five (5) months per calendar year.
(b) The Board or the Committee may provide that, each
person who, during the course of an Offering, first becomes an
eligible employee of the Company or designated Affiliate will, on a
date or dates specified in the Offering which coincides with the day
on which such person becomes an eligible employee or occurs
thereafter, receive a right under that Offering, which right shall
thereafter be deemed to be a part of that Offering. Such right shall
have the same characteristics as any rights originally granted under
that Offering, as described herein, except that:
(i) the date on which such right is granted shall
be the "Offering Date" of such right for all purposes, including
determination of the exercise price of such right, provided, however,
that if the fair market value of the Common Stock on the date on
which such right is granted is less than the fair market value of the
Common Stock on the first day of the Offering, then, solely for the
purpose of determining the exercise price of such right, the first
day of the Offering shall be the "Offering Date" for such right;
(ii) the Purchase Period (as defined below) for such
right shall begin on its Offering Date and end coincident with the
end of such Offering; and
(iii) the Board or the Committee may provide that if
such person first becomes an eligible employee within a specified
period of time before the end of the Purchase Period (as defined
below) for such Offering, he or she will not receive any right under
that Offering.
3
(c) No employee shall be eligible for the grant of any
rights under the Plan if, immediately after any such rights are
granted, such employee owns stock possessing five percent (5%) or
more of the total combined voting power or value of all classes of
stock of the Company or of any Affiliate. For purposes of this
subparagraph 5(c), the rules of Section 424(d) of the Code shall
apply in determining the stock ownership of any employee, and stock
which such employee may purchase under all outstanding rights and
options shall be treated as stock owned by such employee.
(d) An eligible employee may be granted rights under the
Plan only if such rights, together with any other rights granted
under "employee stock purchase plans" of the Company and any
Affiliates, as specified by Section 423(b)(8) of the Code, do not
permit such employee's rights to purchase stock of the Company or any
Affiliate to accrue at a rate which exceeds twenty-five thousand
dollars ($25,000) of fair market value of such stock (determined at
the time such rights are granted) for each calendar year in which
such rights are outstanding at any time.
(e) Officers of the Company shall be eligible to
participate in Offerings under the Plan, provided, however, that the
Board may provide in an Offering that certain employees who are
highly compensated employees within the meaning of Section
423(b)(4)(D) of the Code shall not be eligible to participate.
6. RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each eligible employee,
pursuant to an Offering made under the Plan, shall be granted the
right to purchase up to the number of shares of Common Stock of the
Company purchasable with a percentage designated by the Board or the
Committee not exceeding fifteen percent (15%) of such employee's
Earnings (as defined in Section 7(a)) during the period which begins
on the Offering Date (or such later date as the Board or the
Committee determines for a particular Offering) and ends on the date
stated in the Offering, which date shall be no more than twenty-seven
(27) months after the Offering Date (the "Purchase Period"). In
connection with each Offering made under this Plan, the Board or the
Committee shall specify a maximum number of shares which may be
purchased by any employee as well as a maximum aggregate number of
shares which may be purchased by all eligible employees pursuant to
such Offering. In addition, in connection with each Offering which
contains more than one Exercise Date (as defined in the Offering),
the Board or the Committee may specify a maximum aggregate number of
shares which may be purchased by all eligible employees on any given
Exercise Date under the Offering. If the aggregate purchase of
shares upon exercise of rights granted under the Offering would
exceed any such maximum aggregate number, the Board or the Committee
shall make a pro rata allocation of the shares available in as nearly
a uniform manner as shall be practicable and as it shall deem to be
equitable.
4
(b) The purchase price of stock acquired pursuant to
rights granted under the Plan shall be not less than the lesser of:
(i) an amount equal to eighty-five percent (85%) of
the fair market value of the stock on the Offering Date; or
(ii) an amount equal to eighty-five percent (85%) of
the fair market value of the stock on the Exercise Date.
(c) Each eligible employee shall have the same rights and
privileges under the Plan, except as allowed under Section 423(b)(5)
of the Code.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in an
Offering by delivering a participation agreement to the Company
within the time specified in the Offering, in such form as the
Company provides. Each such agreement shall authorize payroll
deductions of up to the maximum percentage specified by the Board or
the Committee of such employee's Earnings during the Purchase Period.
"Earnings" is defined as the total compensation paid to an employee,
including all salary, wages (including amounts elected to be deferred
by the employee, that would otherwise have been paid, under any cash
or deferred arrangement established by the Company), overtime pay,
commissions, bonuses, and other remuneration paid directly to the
employee, but excluding profit sharing, the cost of employee benefits
paid for by the Company, education or tuition reimbursements, imputed
income arising under any Company group insurance or benefit program,
traveling expenses, business and moving expense reimbursements,
income received in connection with stock options, contributions made
by the Company under any employee benefit plan, and similar items of
compensation, or such other inclusions or exclusions as the Board or
Committee may determine for one or more specified Offerings. The
payroll deductions made for each participant shall be credited to an
account for such participant under the Plan and shall be deposited
with the general funds of the Company. A participant may reduce
(including to zero), increase or begin such payroll deductions after
the beginning of any Purchase Period only as provided for in the
Offering. A participant may make additional payments into his or her
account only if specifically provided for in the Offering and only if
the participant has not had the maximum amount withheld during the
Purchase Period.
(b) At any time during a Purchase Period a participant may
terminate his or her payroll deductions under the Plan and withdraw
from the Offering by delivering to the Company a notice of withdrawal
in such form as the Company provides. Such withdrawal may be elected
at any time prior to the end of the Purchase Period except as
provided by the Board or the Committee in the Offering. Upon such
withdrawal from the Offering by a participant, the Company shall
distribute to such participant all of his or her accumulated payroll
deductions
5
(reduced to the extent, if any, such deductions have been used to
acquire stock for the participant) under the Offering, without
interest, and such participant's interest in that Offering shall be
automatically terminated. A participant's withdrawal from an
Offering will have no effect upon such participant's eligibility to
participate in any other Offerings under the Plan but such
participant will be required to deliver a new participation agreement
in order to participate in subsequent Offerings under the Plan.
(c) Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon cessation of any participating
employee's employment with the Company or an Affiliate, for any
reason, and the Company shall distribute to such terminated employee
all of his or her accumulated payroll deductions (reduced to the
extent, if any, such deductions have been used to acquire stock for
the terminated employee), under the Offering, without interest.
(d) Rights granted under the Plan shall not be
transferable, and shall be exercisable only by the person to whom
such rights are granted.
8. EXERCISE.
(a) On each exercise date, as defined in the relevant
Offering (an "Exercise Date"), each participant's accumulated payroll
deductions and other additional payments specifically provided for in
the Offering (without any increase for interest) will be applied to
the purchase of whole shares of stock of the Company, up to the
maximum number of shares permitted pursuant to the terms of the Plan
and the applicable Offering, at the purchase price specified in the
Offering. No fractional shares shall be issued upon the exercise of
rights granted under the Plan. The amount, if any, of accumulated
payroll deductions remaining in each participant's account after the
purchase of shares which is less than the amount required to purchase
one share of stock on the final Exercise Date of an Offering shall be
held in each such participant's account for the purchase of shares
under the next Offering under the Plan, unless such participant
withdraws from such next Offering, as provided in subparagraph 7(b),
or is no longer eligible to be granted rights under the Plan, as
provided in paragraph 5, in which case such amount shall be
distributed to the participant after said final Exercise Date,
without interest. The amount, if any, of accumulated payroll
deductions remaining in any participant's account after the purchase
of shares which is equal to the amount required to purchase whole
shares of stock on the final Exercise Date of an Offering shall be
distributed in full to the participant after such Exercise Date,
without interest.
(b) No rights granted under the Plan may be exercised to
any extent unless the Plan (including rights granted thereunder) is
covered by an effective registration statement pursuant to the
Securities Act of 1933, as amended (the "Securities Act"). If on an
6
Exercise Date of any Offering hereunder the Plan is not so
registered, no rights granted under the Plan or any Offering shall be
exercised on said Exercise Date and the Exercise Date shall be
delayed until the Plan is subject to such an effective registration
statement, except that the Exercise Date shall not be delayed more
than two (2) months and the Exercise Date shall in no event be more
than twenty-seven (27) months from the Offering Date. If on the
Exercise Date of any Offering hereunder, as delayed to the maximum
extent permissible, the Plan is not registered, no rights granted
under the Plan or any Offering shall be exercised and all payroll
deductions accumulated during the purchase period (reduced to the
extent, if any, such deductions have been used to acquire stock)
shall be distributed to the participants, without interest.
9. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan,
the Company shall keep available at all times the number of shares of
stock required to satisfy such rights.
(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 rights granted under the Plan. If, after reasonable efforts, the
Company is unable to obtain from any such regulatory commission or
agency the authority which 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
stock upon exercise of such rights unless and until such authority is
obtained.
10. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to rights granted
under the Plan shall constitute general funds of the Company.
11. RIGHTS AS A STOCKHOLDER.
A participant shall not be deemed to be the holder of, or
have any of the rights of a holder with respect to, any shares
subject to rights granted under the Plan unless and until
certificates representing such shares have been issued or such shares
have been credited to an account held by a bank, broker or other
nominee of the participant.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the
Plan, or subject to any rights 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
7
corporate structure or other transaction not involving the receipt of
consideration by the Company), the Plan and outstanding rights will
be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan and the class(es) and number of shares and
price per share of stock subject to outstanding rights. 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) In the event of: (1) a dissolution or liquidation of
the Company; (2) a merger or consolidation in which the Company is
not the surviving corporation; (3) a reverse merger in which the
Company is the surviving corporation but the shares of the Company's
Common Stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; or (4) any other capital
reorganization in which more than fifty percent (50%) of the shares
of the Company entitled to vote are exchanged, then, as determined by
the Board in its sole discretion (i) any surviving corporation may
assume outstanding rights or substitute similar rights for those
under the Plan, (ii) such rights may continue in full force and
effect, or (iii) participants' accumulated payroll deductions may be
used to purchase Common Stock immediately prior to the transaction
described above and the participants' rights under the ongoing
Offering terminated.
13. 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 12 relating
to adjustments upon changes in 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 reserved for
rights under the Plan;
(ii) Modify the provisions as to eligibility for
participation in the Plan (to the extent such modification requires
stockholder approval in order for the Plan to obtain employee stock
purchase plan treatment under Section 423 of the Code); or
(iii) Modify the Plan in any other way if such
modification requires stockholder approval in order for the Plan to
obtain employee stock purchase plan treatment under Section 423 of
the Code.
It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide
eligible employees with the maximum benefits provided or to be provided
8
under the provisions of the Code and the regulations promulgated thereunder
relating to employee stock purchase plans and/or to bring the Plan
and/or rights granted under it into compliance therewith.
(b) Rights and obligations under any rights granted before
amendment of the Plan shall not be impaired by any amendment of the
Plan, except with the consent of the person to whom such rights were
granted or except as necessary to comply with any laws or
governmental regulation.
14. 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 ten (10)
years from the date the Plan is adopted by the Board or approved by
the stockholders of the Company, whichever is earlier. No rights may
be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any rights 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 such rights were granted or except as necessary to comply with
any laws or governmental regulation.
15. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board.
(*1) As adjusted for the two-for-one split of the Company's Common
Stock effected in the form of a 100% stock dividend, payable on
August 15, 1995 to stockholders of record on August 1, 1995.
9