EXHIBIT 10.98
RESOLUTIONS OF THE
BOARD OF DIRECTORS
REGARDING THE PERFORMANCE AWARD PROGRAM
WHEREAS, the Compensation and Management Development Committee (the
"Committee") of the Board of Directors (the "Board") of the Company has
recommended to the Board that the composition of equity compensation to certain
of the Company's key employees be altered;
WHEREAS, the Company maintains the Amgen Inc. Amended and Restated 1991
Equity Incentive Plan, as amended (the "1991 Plan"), pursuant to which the
Committee may grant equity compensation payable to participants upon the
attainment of performance goals;
WHEREAS, the Committee has adopted that certain Performance Award
Program (the "Program"), substantially in the form attached hereto as Annex A,
which implements the 1991 Plan by providing for performance-based equity awards
and has established the performance goals for the 2004-2006 Performance Cycle
(as defined in the Program);
WHEREAS, the Committee has adopted that certain performance unit
agreement, substantially in the form attached hereto as Annex B, to be executed
by the Company and each participant pursuant to the Program; and
WHEREAS, the Committee has deemed it desirable to present the Program
and the performance unit agreement to the Board for approval and has recommended
that the Board approve the Program and the performance unit agreement.
NOW, THEREFORE, BE IT RESOLVED, that the Board hereby approves the
Program and the performance unit agreement in substantially the forms set forth
in Annexes A and B, respectively, attached hereto; and
FURTHER RESOLVED, that the Chief Executive Officer, President, Chief
Financial Officer, Senior Vice President, General Counsel and Secretary of the
Company, each of them acting individually and the Assistant Secretaries of the
Company, acting in conjunction with any of such officers of the Company, are
hereby authorized and directed in the name of the Company and on its behalf, to
do or to cause to be done any and all other acts and to execute and deliver any
and all agreements, instruments and other documents as they shall deem
necessary, appropriate or in furtherance of the full effectuation of the
purposes of the foregoing resolutions and the consummation of the transactions
contemplated by the preceding resolutions, the execution and delivery of such
agreements, instruments and documents and the taking of such actions to be
conclusive evidence of such officer's or officers' authority to do so in
accordance with this resolution; and that any and all actions taken by said
officers or their designees prior to the adoption of the foregoing resolutions
that are within the authority conferred thereby are hereby ratified, confirmed
and approved in all respects.
Annex A
AMGEN INC.
PERFORMANCE AWARD PROGRAM
ARTICLE I
PURPOSE
The purpose of this document is to set forth the general terms and
conditions applicable to the Performance Award Program (the "Program")
established by the Compensation and Management Development Committee of the
Board of Directors of Amgen Inc. (the "Company") pursuant to, and in
implementation of, Section 10(d) of the Company's Amended and Restated 1991
Equity Incentive Plan, as amended (the "1991 Plan"). The Program is intended to
carry out the purposes of the 1991 Plan and provide a means to reinforce
objectives for sustained long-term performance and value creation by awarding
selected key employees of the Company with payments in Company stock based on
the level of achievement of pre-established performance goals during three-year
performance cycles, subject to the restrictions and other provisions of the
Program and the 1991 Plan. The Program shall be effective as of December 9,
2003.
ARTICLE II
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall
have the same definitions as such terms are defined in the 1991 Plan.
"Award" shall mean the earned Performance Units payable in Common Stock
under the Program for a Performance Cycle.
"Board" shall mean the Board of Directors of the Company.
"Committee" shall mean the Compensation and Management Development
Committee of the Board, appointed by the Board from among its members to
administer the 1991 Plan in accordance with Section 2 thereof.
"Common Stock" shall mean the common stock, par value $0.0001 per
share, of the Company.
"Determination Date" shall have the meaning ascribed to it in Section
4.1.
"Participant" shall mean a key employee of the Company or an Affiliate
who participates in this Program pursuant to the provisions of Article III
hereof.
"Peer Group" shall mean a list of companies selected by the Committee.
"Performance Cycle" shall mean each period of three consecutive fiscal
years commencing on the first day of the first fiscal year and ending on the
last day of the third fiscal year. Performance Cycles may overlap.
"Performance Goal" shall have the meaning ascribed to it in Section
5.2.
"Performance Unit" shall mean a right granted to a Participant pursuant
to the Program to receive Common Stock, the payment of which is contingent upon
achieving the Performance Goals.
"QDRO" shall mean a court order (i) that creates or recognizes the
right of the spouse, former spouse or child (an "Alternate Payee") of an
individual who is granted an Award to an interest in such Award relating to
marital property rights or support obligations and (ii) that the 1991 Plan
administrator determines would be a "qualified domestic relations order," as
that term is defined in Section 414(p) of the Code and Section 206(d) of the
Employee Retirement Income Security Act ("ERISA"), but for the fact that the
1991 Plan is not a plan described in Section 3(3) of ERISA.
"Retirement-Eligible" shall mean a Participant who is at least 60 years
of age and has completed a minimum of fifteen (15) years of service with the
Company or an Affiliate.
"Section 162(m) Participant" shall mean any Participant designated by
the Committee as a "covered employee" within the meaning of Section 162(m) of
the Code whose compensation for the fiscal year in which the Participant is so
designated or a future fiscal year may be subject to the limit on deductible
compensation imposed by Section 162(m) of the Code.
ARTICLE III
PARTICIPATION
3.1 Participants. Participants for any Performance Cycle shall be
those active key employees of the Company or an Affiliate who are designated in
writing as eligible for participation by the Committee within the first ninety
(90) days of such Performance Cycle.
3.2 No Right to Participate. No Participant or other employee of
the Company or an Affiliate shall, at any time, have a right to participate in
this Program for any Performance Cycle, notwithstanding having previously
participated in this Program.
ARTICLE IV
ADMINISTRATION
4.1 Generally. Within the first ninety (90) days of each
Performance Cycle, the Committee shall establish the basis for payments under
this Program in relation to specified Performance Goals, as more fully described
in Article V hereof. Following the end of each Performance Cycle, once all of
the information necessary for the Committee to determine the Company's
performance and comparative performance with the Peer Group is made available to
the Committee, the Committee shall determine the amount of the Award payable to
each Participant; provided, however, that any such determination shall be made
no later than six months following the end of such Performance Cycle (the date
of such determination shall hereinafter be called the "Determination Date"). The
Committee shall have the power and authority granted it under Section 2 of the
1991 Plan, including, without limitation, the authority to construe and
interpret this Program, to prescribe, amend and rescind rules, regulations and
procedures relating to its administration and to make all other determinations
necessary or advisable for administration of this Program. Decisions of the
Committee in accordance with the authority granted hereby shall be conclusive
and binding. Subject only to compliance with the express provisions hereof, the
Committee may act in its sole and absolute discretion with respect to matters
within its authority under this Program.
4.2 Provisions Applicable to Section 162(m) Participants. Any
Awards paid hereunder to a Section 162(m) Participant shall satisfy and shall be
interpreted in a manner that satisfies any applicable requirements as "qualified
performance-based compensation" within the meaning of Section 162(m) of the Code
and any provisions, application or interpretation of the Program or the 1991
Plan that is inconsistent with this intent shall be disregarded.
4.3 Provisions Applicable to Participants in Foreign
Jurisdictions. Notwithstanding any provision of the Program to the contrary, in
order to comply with the laws in other countries in which the Company and its
Affiliates operate or have employees, the Committee, in its sole discretion,
shall have the power and authority to:
(i) modify the terms and conditions of any award of
Performance Units granted to employees outside the United States to comply with
applicable foreign laws;
(ii) condition the effectiveness of any award of
Performance Units upon approval or compliance with any necessary local
governmental regulatory exemption or approvals;
(iii) provide for payment of any Award in cash or Common
Stock, at the Company's election, to the extent necessary to comply with
applicable foreign laws; and
(iv) take any other action, before or after an award of
Performance Units is made, that it deems advisable to obtain approval or comply
with any necessary local governmental regulatory exemptions or approvals.
Notwithstanding the foregoing, the Committee may not take any actions hereunder,
and no award of Performance Units shall be granted, that would violate the
Exchange Act, the Code, any securities law or governing statute or any other
applicable law.
ARTICLE V
AWARD DETERMINATIONS
5.1 Award of Performance Units. Within the first ninety (90) days
of each Performance Cycle, the Committee shall determine the number of
Performance Units (rounded
down to the nearest whole number) to be awarded under this Program to each
Participant with respect to such Performance Cycle and a date upon which the
Performance Units shall be assigned a unit value based on the fair market value
of a share of Common Stock on such specified date. Performance Units granted
under the Program shall constitute stock bonuses under Sections 7 and 10(d) of
the 1991 Plan.
5.2 Performance Requirements. Within the first ninety (90) days of
each Performance Cycle, the Committee shall approve the performance goals
(collectively, the "Performance Goals") with respect to any of the business
criteria permitted under Section 10(d) of the 1991 Plan), each subject to such
adjustments as the Committee may specify in writing at such time, and shall
establish a formula, standard or schedule which aligns the level of achievement
of the Performance Goals with the earned Performance Units. The Performance
Goals may not be changed during the Performance Cycle, but the thresholds and
targets of the Performance Goals shall be subject to such adjustments as the
Committee may specify in writing within the first ninety (90) days of the
Performance Cycle.
ARTICLE VI
PAYMENT OF AWARDS
6.1 Form and Timing of Payment. Except as set forth in Section 8.1
below, any Award payable pursuant to this Program shall be paid as soon as
practicable following the Determination Date in shares of Common Stock based on
the average of the daily closing prices of a share of Common Stock on the Nasdaq
National Market for the thirty (30) trading days ending seven trading days
immediately preceding the Determination Date; provided, however, that no Award
shall be paid unless and until the Committee certifies, in writing, the extent
to which the Performance Goals have been achieved and the corresponding number
of Performance Units earned; and provided, further, that to the extent required
by Delaware law, no shares of Common Stock shall be issued hereunder unless the
Committee determines that the consideration received by the Company in exchange
for the issuance of Common Stock has a value not less than the par value
thereof.
6.2 Tax Withholding. The Participant shall satisfy any federal,
state and local tax withholding obligation relating to the payment of the Award
by authorizing the Company to withhold from the shares of the Common Stock
otherwise issuable to the Participant as a result of the vesting or the payment
of the Award a number of shares having a fair market value less than or equal to
the amount of the Company's required minimum statutory withholding. Any shares
of Common Stock withheld by the Company hereunder shall not be deemed to have
been issued by the Company for any purpose under the 1991 Plan. In addition, the
Participant shall take any further actions and execute any additional documents
as may be necessary to effectuate the provisions of this Section 6.2.
Notwithstanding Section 6.1, no certificates representing the shares of Common
Stock shall be delivered to a Participant unless and until he or she shall have
paid to the Company the full amount of all federal, state and local tax
withholding or other employment taxes applicable to him or her resulting from
the payment of the Award.
ARTICLE VII
TERMINATION OF EMPLOYMENT
7.1 Termination of Employment During Performance Cycle.
(a) In the event that a Participant's employment with the
Company or an Affiliate is terminated within six months following the
commencement of a Performance Cycle for any reason, all of such Participant's
rights to an Award for such Performance Cycle shall be forfeited.
(b) Subject to Section 7.1(a) above, in the event that a
Participant's employment with the Company or an Affiliate is terminated prior to
the last business day of a Performance Cycle by reason of such Participant's
voluntary retirement and such Participant is Retirement-Eligible on the date of
such termination, the prorated amount of such Participant's Award, if any,
applicable to such Performance Cycle shall be paid in accordance with the
provisions of Article VI above. For purposes of the foregoing, the amount of the
Participant's Award (rounded down to the nearest whole number) shall be
determined based on the Company's performance as compared to the Performance
Goals for such Performance Cycle and the Award otherwise payable is multiplied
by a fraction (rounded to two decimal places), the numerator of which is the
number of complete months of employment during the Performance Cycle, and the
denominator of which is 36.
(c) Subject to Section 7.1(a) above, in the event that a
Participant's employment with the Company or an Affiliate is terminated prior to
the last business day of a Performance Cycle by reason of such Participant's
death or disability (within the meaning of Title II or XVI of the Social
Security Act or comparable statute applicable to an Affiliate and such
disability is certified by (i) the Social Security Administration, (ii) the
comparable governmental authority applicable to an Affiliate, (iii) such other
body having the relevant decision-making power applicable to an Affiliate, or
(iv) an independent medical advisor appointed by the Company, as applicable,
prior to such termination), the prorated amount of such Participant's Award, if
any, applicable to such Performance Cycle shall be paid in accordance with the
provisions of Article VI above. For purposes of the foregoing, the amount of the
Participant's Award (rounded down to the nearest whole number) shall be
determined based on the Company's performance as compared to the Performance
Goals for such Performance Cycle and the Award otherwise payable is multiplied
by a fraction (rounded to two decimal places), the numerator of which is the
number of complete months of employment during the Performance Cycle, and the
denominator of which is 36.
(d) In the event that a Participant's employment with the
Company or an Affiliate is terminated prior to the last business day of a
Performance Cycle for any reason other than as specified in Sections 7.1(a), (b)
and (c) above, all of such Participant's rights to an Award for such Performance
Cycle shall be forfeited, unless the Committee approves, based upon the
recommendation of the Company's Chief Executive Officer which are based on valid
business reasons, the payment of a prorated amount of the Participant's Award,
if any, applicable to such Performance Cycle shall be paid in accordance with
the provisions of Article VI above. For purposes of the foregoing, the amount of
the Participant's Award (rounded down to the nearest whole number) shall be
determined based on the Company's performance as compared to the Performance
Goals for such Performance Cycle and the Award otherwise payable is multiplied
by a fraction (rounded to two decimal places), the numerator of which is the
number of complete months of employment during the Performance Cycle, and the
denominator of which is 36.
7.2 Termination of Employment After End of Performance Cycle. In
the event that a Participant's employment with the Company or an Affiliate is
terminated after the end of the applicable Performance Cycle but prior to the
Determination Date for any reason, the amount of any Award applicable to such
Performance Cycle shall be paid to the Participant in accordance with the
provisions of Article VI above.
ARTICLE VIII
CHANGE IN CONTROL
8.1 Change in Control During Performance Cycle.
(a) Notwithstanding anything to the contrary in the
Program, in the event of a Change in Control that occurs during the first fiscal
year of a Performance Cycle, such Performance Cycle shall be shortened and shall
terminate as of the last business day of the last completed fiscal quarter
preceding the date of such Change in Control and each Participant employed by
the Company immediately prior to such Change in Control shall be entitled to a
payment equal to the amount of the Participant's Award (rounded down to the
nearest whole number) he or she would have received for such Performance Cycle
assuming that the targets of the Performance Goals are satisfied. Any such
payment shall be made as soon as practicable following such Change in Control
and, in the Committee's sole discretion, may be paid in cash.
(b) Notwithstanding anything to the contrary in the
Program, in the event of a Change in Control that occurs during the second or
third fiscal year of a Performance Cycle, such Performance Cycle shall be
shortened and shall terminate as of the last business day of the last completed
fiscal quarter preceding the date of such Change in Control and each Participant
employed by the Company immediately prior to such Change in Control shall be
entitled to a payment equal to the greater of (i) the amount of the
Participant's Award (rounded down to the nearest whole number) he or she would
have received for such Performance Cycle assuming that the targets of the
Performance Goals are satisfied, or (ii) the amount of the Participant's Award
(rounded down to the nearest whole number) he or she would have been entitled to
receive for such Performance Cycle, determined based on the Company's
performance and comparative performance for such shortened Performance Cycle.
Any such payment shall be made as soon as practicable following such Change in
Control and, in the Committee's sole discretion, may be paid in cash.
8.2 Change in Control After End of Performance Cycle.
Notwithstanding anything to the contrary in the Program, in the event of a
Change in Control that occurs after the end of the applicable Performance Cycle
but prior to the Determination Date, the amount of any Award applicable to such
Performance Cycle shall be paid to the Participant in accordance with the
provisions of Article VI above.
ARTICLE IX
MISCELLANEOUS
9.1 Plan. The Program is subject to all the provisions of the 1991
Plan and its provisions are hereby made a part of the Program, including without
limitation the provisions of Sections 7 and 10(d) thereof (relating to stock
bonuses) and Section 11 thereof (relating to adjustments upon changes in the
Common Stock), and is further subject to all interpretations, amendments, rules
and regulations which may from time to time be promulgated and adopted pursuant
to the 1991 Plan. In the event of any conflict between the provisions of the
Program and those of the 1991 Plan, the provisions of the 1991 Plan shall
control. Notwithstanding any provision of the Program to the contrary, any
earned Performance Units paid in cash rather than shares of Common Stock shall
not be deemed to have been issued by the Company for any purpose under the 1991
Plan.
9.2 Amendment and Termination. Notwithstanding anything herein to
the contrary, the Committee may, at any time, terminate, modify or suspend this
Program; provided, however, that, without the prior consent of the Participants
affected, no such action may adversely affect any rights or obligations with
respect to any Awards theretofore earned but unpaid for a completed Performance
Cycle, whether or not the amounts of such Awards have been computed and whether
or not such Awards are then payable.
9.3 No Contract for Employment. Nothing contained in this Program
or in any document related to this Program or to any Award shall confer upon any
Participant any right to continue as an employee or in the employ of the Company
or an Affiliate or constitute any contract or agreement of employment for a
specific term or interfere in any way with the right of the Company or an
Affiliate to reduce such person's compensation, to change the position held by
such person or to terminate the employment of such person, with or without
cause.
9.4 Nontransferability. No benefit payable under, or interest in,
this Program shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge and any such attempted
action shall be void and no such benefit or interest shall be, in any manner,
liable for, or subject to, debts, contracts, liabilities or torts of any
Participant or beneficiary; provided, however, that, nothing in this Section 9.4
shall prevent transfer (i) by will, (ii) by applicable laws of descent and
distribution or (iii) to an Alternate Payee to the extent that a QDRO so
provides. The assignment of an Award to an Alternate Payee pursuant to a QDRO
shall not be treated as having caused a new grant. If an Award is assigned to an
Alternate Payee, the Alternate Payee generally has the same rights as the
Participant under the terms of the Program; provided however, that (i) the Award
shall be subject to the same vesting terms as if the Award were still held by
the Participant, and (ii) an Alternate Payee may not transfer an Award. In the
event of the 1991 Plan administrator's receipt of a domestic relations order or
other notice of adverse claim by an Alternate Payee of a Participant, transfer
of the proceeds of such Award may be suspended. Such proceeds shall thereafter
be transferred pursuant to the terms of a QDRO or other agreement between the
Participant and Alternate Payee. A Participant's ability to receive payment of
an Award may be barred if the 1991 Plan administrator receives a court order
directing the 1991 Plan administrator not to make such payment.
9.5 Nature of Program. No Participant, beneficiary or other person
shall have any right, title or interest in any fund or in any specific asset of
the Company or any Affiliate by reason of any award hereunder. There shall be no
funding of any benefits which may become payable hereunder. Nothing contained in
this Program (or in any document related thereto), nor the creation or adoption
of this Program, nor any action taken pursuant to the provisions of this Program
shall create, or be construed to create, a trust of any kind or a fiduciary
relationship between the Company or an Affiliate and any Participant,
beneficiary or other person. To the extent that a Participant, beneficiary or
other person acquires a right to receive payment with respect to an Award
hereunder, such right shall be no greater than the right of any unsecured
general creditor of the Company or other employing entity, as applicable. All
amounts payable under this Program shall be paid from the general assets of the
Company or employing entity, as applicable, and no special or separate fund or
deposit shall be established and no segregation of assets shall be made to
assure payment of such amounts. Nothing in this Program shall be deemed to give
any employee any right to participate in this Program except in accordance
herewith.
9.6 Governing Law. This Program shall be construed in accordance
with the laws of the State of Delaware, without giving effect to the principles
of conflicts of law thereof.