Exhibit 10.63
THIRD AMENDMENT TO THE
AMGEN RETIREMENT AND SAVINGS PLAN
AS AMENDED AND RESTATED EFFECTIVE OCTOBER 23, 2000
The Amgen Retirement and Savings Plan as Amended and Restated Effective
October 23, 2000, (the "Plan") is hereby amended as follows:
1. Section 2.20 shall be amended and restated in its entirety to read as
follows:
"Employee" means an individual who (a) on the Payroll of a member of the
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Affiliated Group or (b) is a "leased employee" with respect to a member of
the Affiliated Group. "Employee" shall not include a nonresident alien who
receives no earned income (within the meaning of Section 911(b) of the
Code) from a member of the Affiliated Group that constitutes income from
sources within the United States (within the meaning of Section 861(a)(3)
of the Code).
The term "leased employee" means any person (other than an employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient
(or for the recipient and related persons determined in accordance with
section 414(n)(6) of the Internal Revenue Code) on a substantially full
time basis for a period of at least one year, and such services are
performed under primary direction or control by the recipient.
Contributions or benefits provided a leased employee by the leasing
organization which are attributable to services performed for the recipient
employer shall be treated as provided by the recipient employer. A leased
employee shall not be considered an employee of the recipient if: (i) such
employee is covered by a money purchase pension plan providing: (1) a
nonintegrated employer contribution rate of at least 10 percent of
compensation, as defined in section 415(c)(3) of the Code, but including
amounts contributed pursuant to a salary reduction agreement which are
excludable from the employee's gross income under section 125, section
402(e)(3), section 402(h)(1)(B) or section 403(b) of the Code, (2)
immediate participation, and (3) full and immediate vesting; and (ii)
leased employees do not constitute more than 20 percent of the recipient's
nonhighly compensated work force.
2. Section 5.2 shall be amended and restated in its entirety to read as
follows:
Nonelective Contributions. Subject to the limitations Section 5.6 and
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Articles 13-16, each Participating Company may, in its discretion, make
Nonelective Contributions in an amount determined by the Participating
Company. Such Nonelective Contributions shall be allocated to each
Participant in the ratio that such Participant's compensation bears to the
compensation of all Participants. The Company, in its sole discretion, may
determine that the allocation of part or all of the Nonelective
Contribution for a Plan Year shall be limited to the Nonelective
Contribution Accounts of Participants who remain Eligible Employees on the
last day of the relevant Plan Year. The Company may limit the
amount of Compensation that is taken into account for purposes of
allocating Nonelective Contributions, and it may determine that allocations
of Nonelective Contributions shall be limited to a specified group of
Eligible Employees; provided, however, that the Nonelective Contribution
formula(s) shall not discriminate in favor of Highly Compensated Employees.
For purposes of allocating such Nonelective Contributions for any Plan Year
or other allocation period based on an Employee's Compensation, only
Compensation attributable to periods in such Plan Year or other allocation
period during which such Employee was an Eligible Employee shall be taken
into account. Nonelective Contributions shall be paid to the Trustee as
soon as reasonably practicable following the close of the pay period to
which it relates and shall be allocated to the Accounts of Participants as
provided in Section 6.6.
Nonelective Contributions may include a core contribution equal to a
specified percentage of Compensation to be made by the Company for each
payroll period during the Plan Year.
3. Section 13.3 shall be amended and restated in its entirety to read as
follows:
Allocation of Excess Contributions to Highly Compensated Employees. Any
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Excess Contributions for a Plan Year shall be allocated to Highly
Compensated Employees by use of a leveling process, whereby the amount of
Aggregate 401(k) Contributions of the Highly Compensated Employee with the
highest amount of Aggregate 401(k) Contributions is reduced to the extent
required to (a) eliminate all Excess Contributions or (b) cause such Highly
Compensated Employee's amount of Aggregate 401(k) Contributions to equal
the amount of Aggregate 401(k) Contributions of the Highly Compensated
Employee with the next highest amount of Aggregate 401(k) Contributions.
The leveling process shall be repeated until all Excess Contributions for
the Plan Year are allocated to Highly Compensated Employees.
Notwithstanding the foregoing, for Plan Years beginning after December 31,
1996, any determination of Excess Contributions of a Highly Compensated
Employee shall be made on the basis of the Highly Compensated Employee's
actual deferral ratio in accordance with Code Section 401(k)(8)(C) and the
Regulations promulgated thereunder.
4. Section 13.4 shall be amended and restated in its entirety to read as
follows:
Distribution of Excess Contributions. Excess Contributions allocated to
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Highly Compensated Employees for the Plan Year pursuant to Section 13.3,
together with any income or loss allocable to such Excess Contributions,
shall be distributed to such Highly Compensated Employees not later than
two-and-one-half months following the close of such Plan Year, if possible,
and in any event no later than 12 months following the close of such Plan
Year. Any Participant Elected Contributions distributed pursuant to this
Section 13.4 shall not be included in the Participant Elected Contributions
to which a Matching Contribution under Section 5.1 or a Qualified Matching
Contribution under Section 5.4 of the Plan attaches. Notwithstanding the
foregoing, for Plan Years beginning after December 31, 1996, any
distribution of Excess Contributions for a Plan Year to Highly Compensated
Eligible Employees shall be made on the basis of the dollar
amount of Participant Elected Contributions made by, or on behalf of, each
such Highly Compensated Eligible Employee in accordance with Code Section
401(k)(8)(C).
5. Section 13.7(f) shall be amended and restated in its entirety to read as
follows:
Income (and loss) allocable to Excess Contributions for the Plan Year shall
be determined pursuant to the provisions for allocating income (and loss)
to a Participant's Accounts under Section 6.10 of the Plan.
Notwithstanding the foregoing, such income and loss shall be calculated
including the period between the end of the Plan Year and the date on which
the Excess Contributions are distributed. The income and loss allocable to
the Excess Contributions shall bear the same proportion to the total income
and loss allocable to a Participant's Account as the Excess Contributions
bear to the Participant's Account.
6. Section 13.9(e)(5) shall be amended and restated in its entirety to read as
follows:
Any of the definitions of Section 414(s) Compensation set forth in
Subsections (1), (2), (3) and (4) above, modified to include the following:
(a) any elective contributions made by a member of the Affiliated Group on
behalf of the Employee that are not includable in gross income under
Section 125, 132(f)(4), 402(e)(3), 402(h) or 403(b) of the Code; (b)
compensation deferred under an eligible deferred compensation plan within
the meaning of Section 457(b) of the Code; and (c) employee contributions
described in Section 414(h)(2) of the Code that are picked up by the
employing unit and thus are treated as employer contributions; or
7. Section 14.2 shall be amended and restated in its entirety to read as
follows:
Allocation of Excess Aggregate Contributions to Highly Compensated
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Employees. Any Excess Aggregate Contributions for a Plan Year shall be
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allocated to Highly Compensated Employees by use of a leveling process,
whereby the Aggregate 401(m) Contributions of the Highly Compensated
Employee with the highest amount of Aggregate 401(m) Contributions is
reduced to the extent required to (a) eliminate all Excess Aggregate
Contributions or (b) cause the amount of such Highly Compensated Employee's
Aggregate 401(m) Contributions to equal the amount of Aggregate 401(m)
Contributions of the Highly Compensated Employee with the next-highest
amount of Aggregate 401(m) Contributions. The leveling process shall be
repeated until all Excess Aggregate Contributions for the Plan Year are
allocated to Highly Compensated Employees. Notwithstanding the foregoing,
for Plan Years beginning after December 31, 1996, any determination of
Excess Aggregate Contributions of a Highly Compensated Employee shall be
made on the basis of the Highly Compensated Employee's actual deferral
ratio in accordance with Code Section 401(k)(8)(C) and the Regulations
promulgated thereunder.
8. Section 14.3 shall be amended and restated in its entirety to read as
follows:
Distribution of Excess Aggregate Contributions. Excess Aggregate
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Contributions allocated to Highly Compensated Employees for the Plan Year
pursuant to Section 14.2, together with any income or loss allocable to
such Excess Aggregate Contributions (calculated to include income and loss
for the period between the end of the Plan Year and the date on which the
Excess Aggregate Contributions are distributed), shall be distributed to
such Highly Compensated Employees not later than two-and-one-half months
following the close of such Plan Year, if possible, and in any event no
later than 12 months following the close of such Plan Year, but only to the
extent the Highly Compensated Employee has a nonforfeitable interest in the
Excess Aggregate contributions. Excess Aggregate Contributions (for
Participants who are Highly Compensated Employees), to the extent not
vested, may be forfeited and allocated, after all other Forfeitures under
the Plan, to other Participants (but in no event to any Highly Compensated
Employee) in the proportion that such Participant's Participant Elected
Contributions, if any, for that Plan Year bears to the total Participant
Elected Contributions of all such Participants for the Plan Year. Any such
amounts shall be included in the calculation of the Actual Contribution
Percentage and in the calculation of the limits set forth in Article 16.
The income and loss allocable to the Excess Aggregate Contributions shall
bear the same proportion to the total income and loss allocable to a
Participant's Accounts as the Excess Aggregate Contributions bear to the
Participant's Accounts. Notwithstanding the foregoing, for Plan Years
beginning after December 31, 1996, any distribution of Excess Aggregate
Contributions for a Plan Year to Highly Compensated Eligible Employees
shall be made on the basis of the dollar amount of Participant Elected
Contributions made by, or on behalf of, each such Highly Compensated
Eligible Employee in accordance with Code Section 401(k)(8)(C).
9. Section 16.2 shall be deleted in its entirety.
10. Section 16.4 shall be amended and restated in its entirety to read as
follow:
Excess Company Contributions. If the amount of the Company Contributions
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allocated to a Participant for any Plan Year must be reduced to meet the
limitation described in Section 16.1, then the amount of the reduction
shall be applied to reduce the total amount that the Participating
Companies otherwise would contribute for such year pursuant to Article 5 of
the Plan. If the amount that the Participating Companies may contribute is
thereby reduced to zero and if there are Company Contributions that still
cannot be allocated to any Participant because of the limitation described
in Section 16.1, then the excess shall be transferred to a suspense
account. Any gains, income or losses attributable to the suspense account
shall be allocated to such account. All amounts credited to the suspense
account shall be applied to reduce the total amount that the Participating
Companies otherwise would contribute to the Plan for the next Plan Year,
and for succeeding Plan Years if necessary. Such amounts shall be
allocated among Participants pursuant to Article 5 of the Plan until the
suspense account is exhausted
(subject to this Article). No Participant Elected Contributions or Company
Contributions shall be made as long as any amount remains in the suspense
account. However, this method of addressing Excess Company Contributions
will only be permitted in the event the excess Annual Additions result from
the allocation of forfeitures or result from a reasonable error in
determining the amount of elective deferrals under section 401(g)(3).
To record this Third Amendment to the Plan as set forth herein, the Company has
caused its authorized officer to execute this document this 1st day of February,
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2002.
AMGEN INC.
By: /s/ Brian M. McNamee
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Title: Senior Vice President, Human Resources
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