Exhibit 4.1
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
Nonqualified Deferred Compensation Plan
Effective January 1, 2002
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
TABLE OF CONTENTS
Page
----
Purpose............................................................................................ 1
ARTICLE 1 Definitions............................................................................ 1
ARTICLE 2 Selection/Enrollment/Eligibility....................................................... 5
2.1 Selection by Committee................................................................. 6
2.2 Enrollment Requirements................................................................ 6
2.3 Eligibility/Commencement of Participation.............................................. 6
2.4 Termination of Participation and/or Deferrals.......................................... 6
ARTICLE 3 Deferral Commitments/Company Matching/Crediting/Taxes.................................. 6
3.1 Minimum Deferrals...................................................................... 6
3.2 Maximum Deferrals...................................................................... 7
3.3 Election to Defer/Effect of Election Form.............................................. 7
3.4 Withholding of Annual Deferral Amounts................................................. 8
3.5 Annual Company Contribution Amount..................................................... 8
3.6 Vesting................................................................................ 8
3.13 Crediting/Debiting of Account Balances................................................. 9
3.15 Distribution........................................................................... 10
ARTICLE 4 Short-Term Payout/Unforeseeable Financial Emergencies/Withdrawal Election.............. 11
4.1 Short-Term Payout...................................................................... 11
4.2 Other Benefits Take Precedence Over Short-Term......................................... 11
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies.................. 11
4.4 Withdrawal Election.................................................................... 12
ARTICLE 5 Retirement Benefit..................................................................... 12
5.1 Retirement Benefit..................................................................... 12
5.2 Payment of Retirement Benefit.......................................................... 12
5.3 Death Prior to Completion of Retirement Benefit........................................ 13
ARTICLE 6 Pre-Retirement Survivor Benefit........................................................ 13
6.1 Pre-Retirement Survivor Benefit........................................................ 13
6.2 Payment of Pre-Retirement Survivor Benefit............................................. 13
ARTICLE 7 Termination Benefit.................................................................... 14
i
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
7.1 Termination Benefit.................................................................... 14
7.2 Payment of Termination Benefit......................................................... 14
ARTICLE 8 Disability Waiver and Benefit.......................................................... 14
8.1 Disability Waiver...................................................................... 14
8.2 Continued Eligibility/Disability Benefit............................................... 14
ARTICLE 9 Beneficiary Designation................................................................ 15
9.1 Beneficiary............................................................................ 15
9.2 Beneficiary Designation Change/Spousal Consent......................................... 15
9.3 Acknowledgement........................................................................ 15
9.4 No Beneficiary Designation............................................................. 15
9.5 Doubt as to Beneficiary................................................................ 15
9.6 Discharge of Obligations............................................................... 16
ARTICLE 10 Leave of Absence....................................................................... 16
10.1 Paid Leave of Absence.................................................................. 16
10.2 Unpaid Leave of Absence................................................................ 16
ARTICLE 11 Termination/Amendment or Modification.................................................. 16
11.1 Termination............................................................................ 16
11.2 Amendment.............................................................................. 17
11.3 Plan Agreement......................................................................... 17
11.4 Effect of Payment...................................................................... 17
ARTICLE 12 Administration......................................................................... 17
12.1 Committee Duties....................................................................... 17
12.2 Administration Upon Change In Control.................................................. 18
12.3 Agents................................................................................. 18
12.4 Binding Effect of Decisions............................................................ 18
12.5 Indemnity of Committee................................................................. 18
12.6 Employer Information................................................................... 19
ARTICLE 13 Other Benefits and Agreements.......................................................... 19
13.1 Coordination with Other Benefits....................................................... 19
ARTICLE 14 Claims Procedures...................................................................... 19
14.1 Presentation of Claim.................................................................. 19
14.2 Notification of Decision............................................................... 19
ii
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
14.3 Review of a Denied Claim............................................................... 20
14.4 Decision on Review..................................................................... 20
14.5 Legal Action........................................................................... 20
ARTICLE 15 Trust.................................................................................. 21
15.1 Establishment of the Trust............................................................. 21
15.2 Interrelationship of the Plan and the Trust............................................ 21
15.3 Distributions From the Trust........................................................... 21
3.10 Investment of Trust Assets............................................................. 21
ARTICLE 16 Miscellaneous.......................................................................... 21
16.1 Status of Plan......................................................................... 21
16.2 Unsecured General Creditor............................................................. 22
16.3 Employer's Liability................................................................... 22
16.4 Nonassignability....................................................................... 22
16.5 Not a Contract of Employment........................................................... 22
16.6 Furnishing Information................................................................. 22
16.7 Terms.................................................................................. 23
16.8 Captions............................................................................... 23
16.9 Governing Law.......................................................................... 23
16.10 Notice................................................................................. 23
16.11 Successors............................................................................. 23
16.12 Spouse's Interest...................................................................... 23
16.13 Validity............................................................................... 24
16.14 Incompetent............................................................................ 24
16.15 Court Order............................................................................ 24
16.16 Distribution in the Event of Taxation.................................................. 24
16.17 Insurance.............................................................................. 24
16.18 Legal Fees To Enforce Rights After Change in Control................................... 25
iii
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
AMGEN NONQUALIFIED DEFERRED COMPENSATION PLAN
Effective January 1, 2002
Purpose
-------
The purpose of this Plan is to provide specified benefits to a select
group of management or highly compensated Employees and Directors who contribute
materially to the continued growth, development and future business success of
Amgen, Inc., a Delaware corporation, and its subsidiaries, if any, that sponsor
this Plan. This Plan shall be unfunded for tax purposes and for purposes of
Title I of ERISA.
ARTICLE 1
Definitions
-----------
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit
on the records of the Employer equal to the sum of (i) the Deferral
Account balance and (ii) the vested Company Contribution Account
balance. The Account Balance, and each other specified account balance,
shall be a bookkeeping entry only and shall be utilized solely as a
device for the measurement and determination of the amounts to be paid
to a Participant, or his or her designated Beneficiary, pursuant to
this Plan.
1.2 "Annual Base Salary" shall mean the wages, salaries, fees for
professional services, and other amounts received (without regard to
whether or not an amount is paid in cash) for personal services
actually rendered in the course of employment with any Employer to the
extent that the amounts are includable in gross income (including, but
not limited to, commissions paid to salespersons, compensation for
services on the basis of a percentage of profits, commissions on
reimbursements or other expense allowances under a nonaccountable plan
(as described in Treasury Regulation Section 1.62-2(c)), but excluding
any "goods and services allowance" provided to certain expatriate staff
members. Notwithstanding anything else in the Plan to the contrary,
Annual Base Salary shall not include the Annual Bonus. Annual Base
Salary shall be computed without regard to any election to reduce or
defer salary under the Amgen, Inc. Retirement and Savings Plan or any
other employee benefit plan, including the cafeteria plan under Section
125 of the Code. Annual Base Salary shall not include: (a) any Company
contributions to the Amgen, Inc. Retirement and Savings Plan or any
other employee benefit plan for or on account of the Employee, except
as otherwise provided in the preceding sentence or (b) the items
described in Treasury Regulation Section 1.415-2(d)(3), which, among
other items, would exclude from compensation amounts realized from the
exercise of a nonqualified stock option (or when restricted stock (or
property) held by an Employee either becomes freely transferable or is
no longer subject to a substantial risk of forfeiture under Section 83
of the
1
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
Code) and amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option.
1.3 "Annual Bonus" shall mean the wages, salaries, fees for professional
services, and other amounts received (without regard to whether or not
an amount is paid in cash) for personal services actually rendered in
the course of employment with any Employer to the extent that the
amounts are includable in gross income and are paid pursuant to the
Management Incentive Plan (MIP).
1.4 "Annual Company Contribution Amount" shall mean, for any one Plan Year,
the amount determined in accordance with Section 3.5.
1.5 "Annual Deferral Amount" shall mean that portion of a Participant's
Annual Base Salary Annual Bonus and/or Director Fees, as applicable,
that a Participant elects to have, and is deferred, in accordance with
Article 3, for any one Plan Year.
1.6 "Annual Installment Method" shall be an annual installment payment over
the number of years selected by the Participant in accordance with this
Plan, calculated as follows: The Account Balance of the Participant
shall be calculated as of the most recent Valuation Date. The annual
installment shall be calculated by multiplying this balance by a
fraction, the numerator of which is one, and the denominator of which
is the remaining number of annual payments due the Participant. By way
of example, if the Participant elects a 10-year Annual Installment
Method, the first payment shall be 1/10 of the Account Balance as of
the most recent Valuation Date. The following year, the payment shall
be 1/9 of the Account Balance as of the most recent Valuation Date.
Each annual installment shall be paid on or as soon as practicable
after the amount is calculated.
1.7 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, or entitled under
Article 9 in the absence of a designation, that are entitled to receive
benefits under this Plan upon the death of a Participant.
1.8 "Beneficiary Designation Form" shall mean the form established from
time to time by the Committee that a Participant completes, signs and
returns to the Committee to designate one or more Beneficiaries.
1.9 "Board" shall mean the board of directors of the Company.
1.10 "Change in Control" shall have the meaning set forth in the Amgen, Inc.
Change In Control Severance Plan, as it may be amended from time to
time.
1.11 "Claimant" shall have the meaning set forth in Section 14.1.
1.12 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
2
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
1.13 "Committee" shall mean the committee described in Article 12.
1.14 "Company" shall mean Amgen, Inc., and any successor to all or
substantially all of the Company's assets or business.
1.15 "Company Contribution Account" shall mean (i) the sum of the
Participant's Annual Company Contribution Amounts, plus (ii) amounts
credited (net of amounts debited) in accordance with all the applicable
crediting provisions of this Plan that relate to the Participant's
Company Contribution Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate
to the Participant's Company Contribution Account.
1.16 "Deduction Limitation" shall mean the following described limitation on
a benefit that may otherwise be distributable pursuant to the
provisions of this Plan. Except as otherwise provided, this limitation
shall be applied to all distributions that are "subject to the
Deduction Limitation" under this Plan. If an Employer determines in
good faith prior to a Change in Control that there is a reasonable
likelihood that any compensation paid to a Participant for a taxable
year of the Employer would not be deductible by the Employer solely by
reason of the limitation under Code Section 162(m), then to the extent
deemed necessary by the Employer to ensure that the entire amount of
any distribution to the Participant pursuant to this Plan prior to the
Change in Control is deductible, the Employer may defer all or any
portion of a distribution under this Plan. Any amounts deferred
pursuant to this limitation shall continue to be credited and debited
with additional amounts in accordance with Section 3.13 below, even if
such amount is being paid out in installments. The amounts so deferred
and amounts credited (net of amounts debited) thereon shall be
distributed to the Participant or his or her Beneficiary (in the event
of the Participant's death) at the earliest possible date, as
determined by the Employer in good faith, on which the deductibility of
compensation paid or payable to the Participant for the taxable year of
the Employer during which the distribution is made will not be limited
by Section 162(m), or if earlier, the effective date of a Change in
Control. Notwithstanding anything to the contrary in this Plan, the
Deduction Limitation shall not apply to any distributions made after a
Change in Control.
1.17 "Deferral Account" shall mean (i) the sum of all of a Participant's
Annual Deferral Amounts, plus (ii) amounts credited (net of amounts
debited) in accordance with all the applicable provisions of this Plan
that relate to the Participant's Deferral Account, less (iii) all
distributions made to the Participant or his or her Beneficiary
pursuant to this Plan that relate to his or her Deferral Account.
1.18 "Director" shall mean any member of the Board.
1.19 "Director Fees" shall mean the annual fees paid by any Employer,
including retainer fees and meeting fees, as compensation for serving
on the Board.
3
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
1.20 "Disability" shall mean that the Participant is determined under Title
II or XVI of the Social Security Act, to have been disabled. The
Participant must submit evidence to the Committee of the Social
Security Administration's determination of disability before a person
is to be deemed Disabled under this Plan.
1.21 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.22 "Election Form" shall mean the form established from time to time by
the Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan.
1.23 "Employee" shall mean a person whom an Employer classifies as an
employee.
1.24 "Employer" shall mean the Company or any of its subsidiaries or
affiliates (now in existence or hereafter formed or acquired) that have
been selected by the Board to participate in the Plan and have adopted
the Plan by permitting their Employees to participate in the Plan.
1.25 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.26 "401(k) Plan" shall be that certain Amgen Inc. Retirement and Savings
Plan adopted by the Company, as it may be amended from time to time.
1.27 "Participant" shall mean any Employee (i) who is selected by the
Committee from among the highly compensated or management employees of
the Employer to participate in the Plan, (ii) who elects to participate
in the Plan, (iii) who signs a Plan Agreement, an Election Form and a
Beneficiary Designation Form, (iv) whose signed Plan Agreement,
Election Form and Beneficiary Designation Form are accepted by the
Committee, (v) who commences participation in the Plan, and (vi) whose
Plan Agreement has not terminated. A spouse or former spouse of a
Participant shall not be treated as a Participant in the Plan or have
an account balance under the Plan, even if he or she has an interest in
the Participant's benefits under the Plan as a result of applicable law
or property settlements resulting from legal separation or divorce.
1.28 "Plan" shall mean the AMGEN NONQUALIFIED DEFERRED COMPENSATION PLAN,
effective January 1, 2002, which shall be evidenced by this instrument
and by each Plan Agreement, as they may be amended from time to time.
1.29 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which
such Participant is entitled under the Plan; should there be more than
one Plan Agreement, the Plan Agreement bearing the latest date of
acceptance by the Employer shall supersede all previous Plan Agreements
in their entirety and shall govern such entitlement. The terms of any
Plan Agreement may be different for any Participant, and any Plan
4
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
Agreement may provide additional benefits not set forth in the Plan or
limit the benefits otherwise provided under the Plan; provided,
however, that any such additional benefits or benefit limitations must
be agreed to by both the Employer and the Participant.
1.30 "Plan Year" shall mean a period beginning on January 1 of each calendar
year (beginning January 1, 2002), and continuing through December 31 of
such calendar year.
1.31 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.32 "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason
other than death or Disability at such time as the Employee is at least
sixty (60) years old.
1.33 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.34 "Short-Term Payout" shall mean the payout set forth in Section 4.1.
1.35 "Termination Benefit" shall mean the benefit set forth in Article 7.
1.36 "Termination" shall mean the severing of employment with all
Employers, voluntarily or involuntarily, for any reason other than
Retirement, Disability or death. Termination of Employment shall not be
deemed to occur, however, upon the transfer of a Participant from the
employ of the Company or another Employer to the employ of any
subsidiary or affiliate, regardless of whether that subsidiary or
affiliate is an Employer under the Plan.
1.37 "Trust" shall mean one or more trusts established pursuant to that
certain Trust Agreement, dated as of _____ 1, 2002 between the Company
and the trustee named therein, as amended from time to time.
1.38 "Unforeseeable Financial Emergency" shall mean an unanticipated
emergency that is caused by an event beyond the control of the
Participant that would result in severe financial hardship to the
Participant resulting from (i) a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant, (ii) a
loss of the Participant's property due to casualty, or (iii) another
extraordinary and unforeseeable circumstance arising as a result of
events beyond the control of the Participant, all as determined in the
sole discretion of the Committee.
1.39 "Valuation Date" shall mean the last day of each Plan Year or any other
date as of which the Committee, in its sole discretion, designates as a
Valuation Date.
1.40 "Years of Service" shall mean each Plan Year or portion thereof during
which an Employee is credited with at least 1000 hours of service.
ARTICLE 2
Selection/Enrollment/Eligibility
--------------------------------
5
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
2.1 Selection by Committee. Participation in the Plan shall be limited to a
----------------------
select group of Employees and Directors of the Employers, each of whom
is a member of management or is highly compensated. From the group of
Employees who are management or highly compensated, the Committee shall
select, in its sole discretion, Employees and Directors to participate
in the Plan.
2.2 Enrollment Requirements. As a condition to participation, each selected
-----------------------
Employee shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, all
within the number of days specified by the Committee after he or she is
selected to participate in the Plan. In addition, the Committee may
establish from time to time such other enrollment requirements as it
determines in its sole discretion are necessary.
2.3 Eligibility/Commencement of Participation. Provided an Employee
-----------------------------------------
selected to participate in the Plan has met all enrollment requirements
set forth in this Plan and required by the Committee, including
returning all required documents to the Committee within the specified
time period, that Employee shall commence participation in the Plan on
the first day of the month following the month in which the Employee
completes all enrollment requirements or such other date specified by
the Committee.
2.4 Termination of Participation and/or Deferrals. If the Committee
---------------------------------------------
determines in good faith that a Participant no longer qualifies as a
member of a select group of management or highly compensated employees,
as membership in such group is determined in accordance with Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee shall have the
right, in its sole discretion, to (i) terminate any deferral election
the Participant has made for the remainder of the Plan Year in which
the Participant's membership status changes, and (ii) prevent the
Participant from making future deferral elections or, in the
Committee's discretion, may also (iii) immediately distribute the
Participant's then Account Balance as a Termination Benefit and
terminate the Participant's participation in the Plan.
ARTICLE 3
Deferral Commitments/Company Matching/Crediting/Taxes
-----------------------------------------------------
3.1 Minimum Deferrals.
-----------------
(a) Annual Base Salary and Annual Bonus. For each Plan Year, a
-----------------------------------
Participant may elect to defer, as his or her Annual Deferral
Amount, Annual Base Salary or Annual Bonus, or both, in the
following minimum amounts for each deferral elected:
---------------------------------------------
Deferral Minimum Amount
---------------------------------------------
Annual Base Salary
and/or Annual Bonus $2,000
---------------------------------------------
6
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
If an election is made for less than stated minimum amounts, or if no
election is made, the amount deferred shall be zero.
(b) Short Plan Year. Notwithstanding the foregoing, if a Participant first
---------------
becomes a Participant after the first day of a Plan Year, the minimum
Annual Base Salary deferral shall be an amount equal to the minimum
set forth above, multiplied by a fraction, the numerator of which is
the number of complete months remaining in the Plan Year and the
denominator of which is 12.
3.2 Maximum Deferrals.
-----------------
(a) Annual Base Salary Annual Bonus and Director Fees. For each Plan Year,
-------------------------------------------------
a Participant may elect to defer, as his or her Annual Deferral
Amount, Annual Base Salary and Annual Bonus up to the following
maximum percentages for each deferral elected:
---------------------------------------------
Deferral Maximum Percentage
---------------------------------------------
Annual Base Salary 50%
---------------------------------------------
Annual Bonus 100%
---------------------------------------------
Director Fees 100%
---------------------------------------------
(b) Notwithstanding the foregoing, if a Participant first becomes a
Participant after the first day of a Plan Year, the maximum Annual
Deferral Amount, with respect to Annual Base Salary and Annual Bonus
shall be based on the amount of compensation not yet earned by the
Participant as of the date the Participant submits a Plan Agreement
and an Election Form to the Committee for acceptance.
3.3 Election to Defer/Effect of Election Form.
-----------------------------------------
(a) First Plan Year of Participation. Within thirty (30) days after being
--------------------------------
designated by the Committee for participation in the Plan, the
Participant shall make an irrevocable deferral election for the Plan
Year in which the Participant commences participation, along with such
other elections as the Committee deems necessary or desirable under
the Plan. For these elections to be valid, the Election Form must be
completed and signed by the Participant, timely delivered to the
Committee (in accordance with Section 2.2 above) and accepted by the
Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year, an irrevocable
---------------------
deferral election for that Plan Year, and such other elections as the
Committee deems necessary or desirable under the Plan, shall be made
by timely delivering to the Committee, in accordance with its rules
and procedures, before the end of the Plan Year preceding the
7
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
Plan Year for which the election is made, a new Election Form. If no
such Election Form is timely delivered for a Plan Year, the Annual
Deferral Amount shall be zero for that Plan Year.
3.4 Withholding of Annual Deferral Amounts. For each Plan Year, for each
--------------------------------------
Participant, the Annual Base Salary portion of the Annual Deferral Amount
shall be withheld on a ratable basis, to the extent possible, from each
regularly scheduled Annual Base Salary payroll. The Annual Bonus portion of
the Annual Deferral Amount shall be withheld, to the extent possible, at
the time the Annual Bonus is or otherwise would be paid to the Participant,
whether or not this occurs during the Plan Year itself.
3.5 Annual Company Contribution Amount. For each Plan Year, an Employer, in its
----------------------------------
sole discretion, may, but is not required to, credit any amount it desires
to any Participant's Company Contribution Account under this Plan, which
amount shall be for that Participant the Annual Company Contribution Amount
for that Plan Year. The amount so credited to a Participant may be smaller
or larger than the amount credited to any other Participant, and the amount
credited to any Participant for a Plan Year may be zero, even though one or
more other Participants receive an Annual Company Contribution Amount for
that Plan Year. The Annual Company Contribution Amount, if any, shall be
credited as of the date determined by the Committee in its sole discretion.
If a Participant is not employed by an Employer as of the last day of a
Plan Year for a reason other than his or her Retirement or death while
employed, the Annual Company Contribution Amount for that Plan Year shall
be zero.
3.6 Vesting.
-------
(a) A Participant shall at all times be 100% vested in his or her Deferral
Account.
(b) A Participant shall be vested in his or her Company Contribution
Account in accordance with the vesting schedules established by the
Committee, in its sole and absolute discretion, for each Annual
Company Contribution Amount (and amounts credited or debited thereon)
at the time each such Annual Company Contribution Amount is first
credited to the Participant's Account Balance under the Plan. The
vesting schedules established by the Committee for each Annual Company
Contribution Amount may be different for different Participants.
(c) Notwithstanding anything in this Section to the contrary, except as
provided in subsection (d) below, in the event of a Change in Control,
a Participant's Company Contribution Account shall immediately become
100% vested (without regard to whether it is already vested in
accordance with the above vesting schedules).
(d) Except as otherwise provided by written agreement between a
Participant and his/her Employer, notwithstanding anything in this
Section or the Plan to the contrary, the vesting schedule for a
Participant's Company Contribution Account shall not be accelerated to
the extent that the Committee determines that such acceleration would
8
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
cause the deduction limitations of Section 280G of the Code to become
effective. In the event that any portion of a Participant's Company
Contribution Account is not vested pursuant to such a determination,
the Participant may request independent verification of the
Committee's calculations with respect to the application of Section
280G. In such case, the Committee must provide to the Participant
within 15 business days of such a request an opinion from a nationally
recognized accounting firm selected by the Participant (the
"Accounting Firm"), to the effect that, in the Accounting Firm's
opinion that any limitation in the vested percentage hereunder is
necessary to avoid the limits of Section 280G, and containing
supporting calculations, or, in the absence of such an opinion, shall
cause the relevant portion of the Participant's Company Contribution
Account to become vested. The cost of such opinion shall be paid for
by the Company.
3.7 Crediting/Debiting of Account Balances. In accordance with, and subject to,
--------------------------------------
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following rules:
(a) Election of Measurement Funds. A Participant, in connection with his
-----------------------------
or her initial deferral election in accordance with Section 3.3(a)
above, shall elect, on the Election Form, one or more Measurement
Fund(s) to be used to determine the additional amounts to be credited
to his or her Account Balance for the first business day in which the
Participant commences participation in the Plan and continuing
thereafter for each subsequent day in which the Participant
participates in the Plan, unless changed in accordance with the next
sentence. Commencing with the first business day that follows the
Participant's commencement of participation in the Plan and continuing
thereafter for each subsequent day in which the Participant
participates in the Plan, the Participant may (but is not required to)
elect, by submitting an Election Form to the Committee that is
accepted by the Committee, to add or delete one or more Measurement
Fund(s) to be used to determine the additional amounts to be credited
to his or her Account Balance, or to change the portion of his or her
Account Balance allocated to each previously or newly elected
Measurement Fund. If an election is made in accordance with the
previous sentence, it shall apply to the next business day and
continue thereafter for each subsequent day in which the Participant
participates in the Plan, unless changed in accordance with the
previous sentence.
(b) Proportionate Allocation. In making any election described in Section
------------------------
3.7(a) above, the Participant shall specify on the Election Form, in
increments of five percentage points (5%), the percentage of his or
her Account Balance to have gains and losses measured by a Measurement
Fund.
(c) Measurement Funds. From time to time, the Committee in its sole
-----------------
discretion shall select and announce to Participants its selection of
mutual funds, insurance company separate accounts, indexed rates or
other methods (each, a "Measurement Fund"), for the purpose of
providing the basis on which gains and losses shall be attributed to
9
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
Account Balances under the Plan. The Committee may, in its sole
discretion, discontinue, substitute or add a Measurement Fund at any
time. Each such action will take effect as of the first day of the
calendar quarter that follows by thirty (30) days the day on which the
Committee gives Participants advance written notice of such change.
(d) Crediting or Debiting Method. The performance of each elected
----------------------------
Measurement Fund (either positive or negative) will be determined by
the Committee, in its reasonable discretion, based on available
reports of the performance of the Measurement Funds. A Participant's
Account Balance shall be credited or debited on a daily basis based on
the performance of each Measurement Fund selected by the Participant,
as determined by the Committee in its sole discretion, as though (i) a
Participant's Account Balance were invested in the Measurement Fund(s)
selected by the Participant, in the percentages applicable to such
day, as of the close of business on such day, at the closing price on
such date; (ii) the portion of the Annual Deferral Amount that was
actually deferred during any day were invested in the Measurement
Fund(s) selected by the Participant, in the percentages applicable to
such day, no later than the close of business on the first business
day after the day on which such amounts are actually deferred from the
Participant's Annual Base Salary through reductions in his or her
payroll and from the Participant's Annual Bonus, at the closing price
on such date; and (iii) any distribution made to a Participant that
decreases such Participant's Account Balance ceased being invested in
the Measurement Fund(s), in the percentages applicable to such day, no
later than one business day prior to the distribution, at the closing
price on such date.
(e) No Actual Investment. Notwithstanding any other provision of this Plan
--------------------
that may be interpreted to the contrary, the Measurement Funds are to
be used for measurement purposes only, and a Participant's election of
any such Measurement Fund, the allocation to his or her Account
Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant's Account
Balance shall not be considered or construed in any manner as an
actual investment of his or her Account Balance in any such
Measurement Fund. In the event that the Company or the Trustee (as
that term is defined in the Trust), in its own discretion, decides to
invest funds in any or all of the Measurement Funds, no Participant
shall have any rights in or to such investments themselves. Without
limiting the foregoing, a Participant's Account Balance shall at all
times be a bookkeeping entry only and shall not represent any
investment made on his or her behalf by the Company or the Trust; the
Participant shall at all times remain an unsecured creditor of the
Company.
3.8 Distributions. The Participant's Employer(s), or the trustee of the Trust,
-------------
shall withhold from any payments made to a Participant under this Plan all
federal, state and local income, employment and other taxes required to be
withheld by the Employer(s), or the trustee of the Trust, in connection
with such payments, in amounts and in a manner to be determined in the sole
discretion of the Employer(s) and the trustee of the Trust, respectively
(whichever is making the payment). The Participant's Employer, or the
trustee of the Trust, shall withhold from any payments made to a
Participant under this Plan any garnishment of wages in amounts
10
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
and in a manner to be determined by the sole discretion of the Employer(s)
and the trustee of the Trust, respectively (whichever is making the
payment).
3.9 Adjustment of Annual Deferral Amount. The Committee shall have the
------------------------------------
authority to reduce, without the Participant's consent, the Annual Deferral
Amount and/or the Annual Company Contribution Amount, to the extent
necessary to comply with applicable tax withholding obligations,
garnishments or court-mandated payments, or Participant-authorized
deferrals payments or contributions.
ARTICLE 4
Short-Term Payout/Unforeseeable Financial Emergencies/
------------------------------------------------------
Withdrawal Election
-------------------
4.1 Short-Term Payout. In connection with each election to defer an Annual
-----------------
Deferral Amount, a Participant may irrevocably elect to receive a future
"Short-Term Payout" from the Plan with respect to such Annual Deferral
Amount. Subject to the Deduction Limitation, the Short-Term Payout shall be
a lump sum payment in an amount that is equal to the Annual Deferral (or a
specified portion thereof) plus amounts credited or debited in the manner
provided in Section 3.7 above on that amount, determined at the time that
the Short-Term Payout becomes payable (rather than the date of a
Termination of Employment) or, alternatively if so elected by the
Participant, a fixed stated sum, up to the total Account. Subject to the
Deduction Limitation and the other terms and conditions of this Plan, each
Short-Term Payout elected shall be paid out during a 60 day period
commencing immediately after the last day of any Plan Year designated by
the Participant that is at least three Plan Years after the Plan Year in
which the Annual Deferral Amount is actually deferred.
4.2 Other Benefits Take Precedence Over Short-Term Payout. Should an event
-----------------------------------------------------
occur that triggers a benefit under Article 5, 6, 7 or 8, any Annual
Deferral Amount, plus amounts credited or debited thereon, that is subject
to a Short-Term Payout election under Section 4.1 shall not be paid in
accordance with Section 4.1 but shall be paid in accordance with the other
applicable Article.
4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies. If
---------------------------------------------------------------------
the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant or (ii) receive a partial or full
payout from the Plan. The payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to satisfy
the Unforeseeable Financial Emergency. If, subject to the sole discretion
of the Committee, the petition for a suspension and/or payout is approved,
suspension shall take effect upon the date of approval and any payout shall
be made within 60 days of the date of approval. The payment of any amount
under this Section 4.3 shall not be subject to the Deduction Limitation.
11
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
4.4 Withdrawal Election. A Participant (or, after a Participant's death, his or
-------------------
her Beneficiary) may elect, at any time, to withdraw a portion or all of
his or her Account Balance, calculated as if there had occurred a
Termination of Employment as of the day of the election, less a withdrawal
penalty equal to 10% of the amount withdrawn (the net amount shall be
referred to as the "Withdrawal Amount"). Notwithstanding anything in this
Section or the Plan to the contrary, to the extent a Participant elects to
withdraw a portion or all of his or her Account Balance pursuant to this
Section, the Participant may not defer any of his or her Annual Salary
Annual Bonus or Director Fees for the remainder of the Plan Year in which
the withdrawal is taken and for the next full Plan Year. This election can
be made at any time, before or after Retirement, Disability, death or
Termination of Employment, and whether or not the Participant (or
Beneficiary) is in the process of being paid pursuant to an installment
payment schedule. If made before Retirement, Disability or death, a
Participant's Withdrawal Amount shall be based on his or her Account
Balance calculated as if there had occurred a Termination of Employment as
of the day of the election. Notwithstanding anything in this Section or the
Plan to the contrary, a Participant may not elect a Withdrawal Amount less
than $5,000. The Participant (or his or her Beneficiary) shall make this
election by giving the Committee advance written notice of the election in
a form determined from time to time by the Committee. The Participant (or
his or her Beneficiary) shall be paid the Withdrawal Amount within 60 days
of his or her election and the Participant's Account shall concurrently be
reduced by the Withdrawal Amount plus the 10% penalty. The payment of this
Withdrawal Amount shall not be subject to the Deduction Limitation.
ARTICLE 5
Retirement Benefit
------------------
5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
------------------
Retires shall receive, as a Retirement Benefit, his or her Account Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or her
-----------------------------
commencement of participation in the Plan, shall elect on an Election Form
the form in which the Retirement Benefit will be paid, if that benefit
becomes payable under the terms of the Plan, which form shall be a lump sum
or an Annual Installment Method of not more than ten (10) years. The
Participant may change his or her election to an allowable alternative
payout period by submitting a new Election Form to the Committee; provided,
however, the last Election Form that is submitted at least 1 year prior to
the Participant's Retirement and is accepted by the Committee in its sole
discretion shall be the governing Election Form as to this matter. If a
Participant does not make any election with respect to the payment of the
Retirement Benefit, then such benefit shall be payable in a lump sum. The
lump sum payment shall be made, or installment payments shall commence, no
later than 60 days after the Participant Retires. Any payment made shall be
subject to the Deduction Limitation. Notwithstanding anything in this
Section or the Plan to the contrary, but subject to the Deduction
Limitation, the Retirement Benefit paid pursuant to a Participant's elected
Annual Installment Method shall be paid in the
12
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
number of annual installments elected by the Participant; provided,
however, the annual installments shall not exceed the lesser of the
Participant's Years of Service or ten (10) years.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
-----------------------------------------------
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (a) over the remaining number of
years and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (b) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's unpaid remaining Account
Balance.
ARTICLE 6
Pre-Retirement Survivor Benefit
-------------------------------
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation, the
-------------------------------
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance if the Participant dies before
he or she Retires, experiences a Termination of Employment or suffers a
Disability.
6.2 Payment of Pre-Retirement Survivor Benefit. A Participant, in connection
------------------------------------------
with his or her commencement of participation in the Plan, shall elect on
an Election Form whether the Pre-Retirement Survivor Benefit shall be
received by his or her Beneficiary in a lump sum or pursuant to an Annual
Installment Method of up to ten (10) years. The Participant may annually
change this election to an allowable alternative payout period by
submitting a new Election Form to the Committee, which form must be
accepted by the Committee in its sole discretion. The Election Form most
recently accepted by the Committee prior to the Participant's death shall
govern the payout of the Participant's Pre-Retirement Survivor Benefit. If
a Participant does not make any election with respect to the payment of the
Pre-Retirement Survivor Benefit, then such benefit shall be paid in a lump
sum. Notwithstanding the foregoing, if the Participant's Account Balance at
the time of his or her death is less than $25,000, payment of the Pre-
Retirement Survivor Benefit may be made, in the sole discretion of the
Committee, in a lump sum or pursuant to an Annual Installment Method of not
more than 5 years. The lump sum payment shall be made, or installment
payments shall commence, no later than 60 days after the Committee is
provided with proof that is satisfactory to the Committee of the
Participant's death.
13
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
ARTICLE 7
Termination Benefit
-------------------
7.1 Termination Benefit. Subject to the Deduction Limitation, the
-------------------
Participant shall receive a Termination Benefit, which shall be equal
to the Participant's Account Balance if a Participant experiences a
Termination of Employment prior to his or her Retirement, death or
Disability.
7.2 Payment of Termination Benefit. The Termination Benefit shall be paid
------------------------------
to the Participant in a lump sum. Notwithstanding anything in this
Section or the Plan to the contrary, a Participant may request that the
Company pay the lump sum payment or commence the installment payments
60 days after the end of the Plan Year in which the Participant
terminates his or her employment. The Committee may, in its sole
discretion, accept or reject such a request from a Participant.
ARTICLE 8
Disability Waiver and Benefit
-----------------------------
8.1 Disability Waiver.
-----------------
(a) Waiver of Deferral. A Participant who is determined by the
------------------
Committee to be suffering from a Disability shall (i) have no
further deferrals of the Annual Deferral Amount that would
otherwise have been withheld from a Participant's Annual Base
Salary Annual Bonus or Director Fees for the Plan Year during
which the Participant first suffers a Disability. During the
period of Disability, the Participant shall not be allowed to
make any additional deferral elections, but will continue to be
considered a Participant for all other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment with an
--------------
Employer, after a Disability ceases, the Participant may elect to
defer an Annual Deferral Amount for the Plan Year following his
or her return to employment or service and for every Plan Year
thereafter while a Participant in the Plan; provided such
deferral elections are otherwise allowed and an Election Form is
delivered to and accepted by the Committee for each such election
in accordance with Section 3.3 above.
8.2 Continued Eligibility/Disability Benefit. A Participant suffering a
----------------------------------------
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed and shall be eligible for the benefits
provided for in Articles 4, 5, 6 or 7 in accordance with the provisions
of those Articles. Notwithstanding the foregoing, the Committee shall
have the right to, in its sole and absolute discretion, deem the
Participant to have experienced a Termination of Employment, or in the
case of a Participant who is eligible to Retire, to have Retired, at
any time after such Participant is determined to be suffering a
Disability, in which case the Participant shall receive a Disability
Benefit equal to his or her Account Balance at the time of the
Committee's determination; provided, however, that should the
Participant otherwise have been eligible to Retire, he or she shall be
paid in accordance with Article 5 as though the Participant Retired.
14
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
The Disability Benefit shall be paid in a lump sum within 60 days of
the Committee's exercise of such right. Any payment made shall be
subject to the Deduction Limitation.
ARTICLE 9
Beneficiary Designation
-----------------------
9.1 Beneficiary. Each Participant shall have the right, at any time, to
-----------
designate his or her Beneficiary(ies) (both primary and contingent) to
receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may
be the same as or different from the Beneficiary designation under any
other plan of an Employer in which the Participant participates.
9.2 Beneficiary Designation Change/Spousal Consent. A Participant shall
----------------------------------------------
designate his or her Beneficiary by completing and signing the
Beneficiary Designation Form, and returning it to the Committee or its
designated agent. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Committee's rules and
procedures, as in effect from time to time. A Participant may name
someone other than his or her spouse as a Beneficiary only if a spousal
consent, in the form designated by the Committee, is signed by that
Participant's spouse and returned to the Committee. Upon the acceptance
by the Committee of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be canceled. The Committee shall be
entitled to rely on the last Beneficiary Designation Form filed by the
Participant and accepted by the Committee prior to his or her death.
Notwithstanding anything in this Section or the Plan to the contrary, a
Participant's designation of a spouse as a Beneficiary shall
automatically be cancelled and revoked on the date a Participant's
divorce from that spouse becomes final.
9.3 Acknowledgment. No designation or change in designation of a
--------------
Beneficiary shall be effective until received and acknowledged in
writing by the Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
--------------------------
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the
Participant's designated Beneficiary shall be deemed to be the
Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the
-----------------------
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to cause
the Company to withhold such payments until this matter is resolved to
the Committee's satisfaction.
15
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
------------------------
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to
the Participant, and that Participant's Plan Agreement shall terminate
upon such full payment of benefits.
ARTICLE 10
Leave of Absence
----------------
10.1 Paid Leave of Absence. If a Participant is authorized by the
---------------------
Participant's Employer for any reason to take a paid leave of absence
from the employment of the Employer, the Participant shall continue to
be considered employed by the Employer and the Annual Deferral Amount
shall continue to be withheld during such paid leave of absence in
accordance with Article 3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
-----------------------
Participant's Employer for any reason to take an unpaid leave of
absence from the employment of the Employer, the Participant shall
continue to be considered employed by the Employer and deferrals shall
not be made, in the absence of compensation. Upon such expiration of
the unpaid leave and resumption of entitlement to compensation,
deferrals shall resume for the remaining portion of the Plan Year in
which the return occurs, based on the deferral election, if any, made
for that Plan Year. If no election was made for that Plan Year, no
deferral shall be withheld.
ARTICLE 11
Termination/Amendment or Modification
-------------------------------------
11.1 Termination. Although the Company anticipates that it will continue the
-----------
Plan for an indefinite period of time, there is no guarantee that the
Company will continue the Plan or will not terminate the Plan at any
time in the future. Accordingly, the Company reserves the right to
discontinue its sponsorship of the Plan and to terminate the Plan at
any time with respect to any or all of its participating Employees and
Directors, by action of its Board of Directors. Upon the termination of
the Plan, the Plan Agreements of the affected Participants shall
terminate and their Account Balances, determined as if they had
experienced a Termination of Employment on the date of Plan termination
or, if Plan termination occurs after the date upon which a Participant
was eligible to Retire, then with respect to that Participant as if he
or she had Retired on the date of Plan termination, shall be paid to
the Participants as follows: Prior to a Change in Control, if the Plan
is terminated with respect to all of its Participants, the Company
shall have the right, in its sole discretion, and notwithstanding any
elections made by the Participant, to pay such benefits in a lump sum
or pursuant to an Annual Installment Method of up to ten (10) years,
with amounts credited and debited during the installment period as
provided herein. Prior to a Change in Control, if the Plan is
terminated with respect to less than all of its Participants, the
Company shall be required to pay such benefits in a lump sum. After a
Change in Control, the Company shall be required to pay such benefits
in a lump sum. The termination of the Plan shall not adversely affect
any Participant or Beneficiary who has become entitled to the payment
of any benefits under the Plan as of the date of termination; provided
however, that the Company shall have the right to accelerate
installment payments
16
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
without a premium or prepayment penalty by paying the Account Balance
in a lump sum or pursuant to an Annual Installment Method using fewer
years.
11.2 Amendment. The Company may, at any time, amend or modify the Plan in
---------
whole or in part by the action of the Committee ; provided, however,
that: (i) no amendment or modification shall be effective to decrease
or restrict the value of a Participant's Account Balance in existence
at the time the amendment or modification is made, calculated as if the
Participant had experienced a Termination of Employment as of the
effective date of the amendment or modification or, if the amendment or
modification occurs after the date upon which the Participant was
eligible to Retire, the Participant had Retired as of the effective
date of the amendment or modification, (ii) no adverse amendment or
modification shall be effective upon or after a Change in Control
without the prior written consent of a majority of the Participants,
and (iii) no amendment or modification of this Section 11.2 or Section
12.2 of the Plan shall be effective. The amendment or modification of
the Plan shall not affect any Participant or Beneficiary who has become
entitled to the payment of benefits under the Plan as of the date of
the amendment or modification; provided, however, that the Employer
shall have the right to accelerate installment payments by paying the
Account Balance in a lump sum or pursuant to an Annual Installment
Method using fewer years (provided that the present value of all
payments that will have been received by a Participant at any given
point of time under the different payment schedule shall equal or
exceed the present value of all payments that would have been received
at that point in time under the original payment schedule).
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above,
--------------
if a Participant's Plan Agreement contains benefits or limitations that
are not in this Plan document, the Company may only amend or terminate
such provisions with the consent of the Participant.
11.4 Effect of Payment. The full payment of the applicable benefit under
-----------------
Articles 4, 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries
under this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
--------------
12.1 Committee Duties. Except as otherwise provided in this Article 12, this
----------------
Plan shall be administered by the Compensation Committee of the Board,
or such committee of delegates as the Compensation Committee of the
Board shall appoint. The Committee shall also have the discretion and
authority to (i) make, amend, interpret, and enforce all appropriate
laws, rules and regulations for the administration of this Plan and
(ii) decide or resolve any and all questions including interpretations
of this Plan, as may arise in connection with the Plan. Any individual
serving on the Committee who is a Participant shall not vote or act on
any matter relating solely to himself or herself. When making a
determination or calculation, the
17
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
Committee shall be entitled to rely on information furnished by a
Participant, the Company or any Employer.
12.2 Administration Upon Change In Control. For purposes of this Plan, the
-------------------------------------
Company, acting through the Committee, shall be the "Administrator" at
all times prior to the occurrence of a Change in Control. Upon and
after the occurrence of a Change in Control, the "Administrator" shall
be an independent third party selected by the Trustee and approved by
the individual who, immediately prior to such event, was the Company's
Chief Executive Officer or, if not so identified, the Company's highest
ranking officer (the "Ex-CEO"). The Administrator shall have the
discretionary power to determine all questions arising in connection
with the administration of the Plan and the interpretation of the Plan
and Trust including, but not limited to benefit entitlement
determinations; provided, however, upon and after the occurrence of a
Change in Control, the Administrator shall have no power to direct the
investment of Plan or Trust assets or select any investment manager or
custodial firm for the Plan or Trust. Upon and after the occurrence of
a Change in Control, the Company must: (1) pay all reasonable
administrative expenses and fees of the Administrator; (2) pursuant to
Section 12.5, indemnify the Administrator against any costs, expenses
and liabilities including, without limitation, attorney's fees and
expenses arising in connection with the performance of the
Administrator hereunder, except with respect to matters resulting from
the gross negligence or willful misconduct of the Administrator or its
employees or agents; and (3) pursuant to Section 12.6, supply full and
timely information to the Administrator or all matters relating to the
Plan, the Trust, the Participants and their Beneficiaries, the Account
Balances of the Participants, the date of circumstances of the
Retirement, Disability, death or Termination of Employment of the
Participants, and such other pertinent information as the Administrator
may reasonably require. Upon and after a Change in Control, the
Administrator may be terminated (and a replacement appointed) by the
Trustee only with the approval of the Ex-CEO. Upon and after a Change
in Control, the Administrator may not be terminated by the Company.
12.3 Agents. In the administration of this Plan, the Committee and the
------
Administrator may, from time to time, employ agents and delegate to
them such of their respective administrative duties as they see fit
(including acting through a duly appointed representative) and may from
time to time consult with counsel who may be counsel to any Employer.
12.4 Binding Effect of Decisions. The decisions or actions of the Committee,
---------------------------
the Administrator and/or their respective delegates, with respect to
any question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
12.5 Indemnity of Committee. All Employers shall indemnify and hold harmless
----------------------
the members of the Committee, and any Employee to whom the duties of
the Committee may be delegated, and the Administrator against any and
all claims, losses, damages, expenses or liabilities arising
18
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
from any action or failure to act with respect to this Plan, except in
the case of willful misconduct by the Committee, any of its members,
any such Employee or the Administrator.
12.6 Employer Information. To enable the Committee and Administrator to
--------------------
perform their respective functions, the Company and each Employer shall
supply full and timely information to the Committee or Administrator,
as the case may be, on all matters relating to the compensation of its
Participants, the date and circumstances of the Retirement, Disability,
death or Termination of Employment of its Participants, and such other
pertinent information as the Committee or Administrator may reasonably
require.
ARTICLE 13
Other Benefits and Agreements
-----------------------------
13.1 Coordination with Other Benefits. The benefits provided for a
--------------------------------
Participant and Participant's Beneficiary under the Plan are in
addition to any other benefits available to such Participant under any
other plan or program for employees of the Participant's Employer. The
Plan shall supplement and shall not supersede, modify or amend any
other such plan or program except as may otherwise be expressly
provided.
ARTICLE 14
Claims Procedures
-----------------
14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
---------------------
Participant (such Participant or Beneficiary being referred to below as
a "Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such
Claimant from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within 60 days
after such notice was received by the Claimant. All other claims must
be made within 180 days of the date on which the event that caused the
claim to arise occurred. The claim must state with particularity the
determination desired by the Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's
------------------------
claim within a reasonable time, and shall notify the Claimant in
writing:
(a) that the Claimant's requested determination has been made, and
that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or
in part, to the Claimant's requested determination, and such
notice must set forth in a manner calculated to be understood by
the Claimant:
19
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary;
and
(iv) an explanation of the claim review procedure set forth in
Section 14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice from
------------------------
the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file with
the Committee a written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review procedure began,
the Claimant (or the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 Decision on Review. The Committee shall render its decision on review
------------------
promptly, using an abuse of discretion standard of review, and shall
render its decision not later than 60 days after the filing of a
written request for review of the denial, unless a hearing is held or
other special circumstances require additional time, in which case the
Committee's decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be understood
by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c) such other matters as the Committee deems relevant.
14.5 Legal Action. A Claimant's compliance with the foregoing provisions of
------------
this Article 14 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
20
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
ARTICLE 15
Trust
------
15.1 Establishment of the Trust. The Company may establish the Trust, and
--------------------------
each Employer may transfer over to the Trust such assets as the
Employer determines, in its sole discretion, to provide for its
respective future liabilities created with respect to the Annual
Deferral Amounts and Annual Company Contribution Amounts, for such
Employer's Participants for all periods prior to the transfer, as well
as any debits and credits to the Participants' Account Balances for all
periods prior to the transfer, taking into consideration the value of
the assets in the trust at the time of the transfer.
15.2 Interrelationship of the Plan and the Trust. The provisions of the Plan
-------------------------------------------
and the Plan Agreement shall govern the rights of a Participant to
receive distributions pursuant to the Plan. The provisions of the Trust
shall govern the rights of the Employers, Participants and the other
creditors of the Employers to the assets transferred to the Trust. Each
Employer shall at all times remain liable to carry out its obligations
under the Plan.
15.3 Distributions From the Trust. Each Employer's obligations under the
----------------------------
Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the
Employer's obligations under this Plan.
15.4 Investment of Trust Assets. The Trustee of the Trust shall be
----------------------------
authorized, upon written instructions received from the
Committee or investment manager appointed by the Committee, to invest
and reinvest the assets of the Trust in accordance with the applicable
Trust Agreement,
ARTICLE 16
Miscellaneous
-------------
16.1 Status of Plan. The Plan is intended to be a plan that is not qualified
--------------
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1). The Plan shall be administered and interpreted
to the extent possible in a manner consistent with that intent. The
Plan is an unfunded, nontax-qualified, individual account, profit
sharing plan. Plan benefits shall only accrue immediately before they
are paid and may be paid directly by the Company. A person entitled to
benefits shall be entitled to receive distributions at the time
otherwise provided under the Plan if he or she consents in writing to
the distribution within 90 days before it is made. Failing such
consent, the distribution shall be delayed to such later date as the
person elects. In this case, the amounts otherwise payable shall be
deposited at the earliest time otherwise payable with the consent of
the person, less taxes required to be withheld, in a brokerage house
account for the benefit of that person, and
21
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
invested as the person directs. However, this account shall be owned by
a trustee appointed by the Plan Administrator, who shall transfer
ownership of the account to the person on or after his or her 60/th/
birthday. By electing to contribute to this Plan, each Participant
acknowledges that this Plan is subject to ERISA but exempted from all
of ERISA's substantive requirements because it is a "top hat plan,"
acknowledges that the Company would not have implemented or continued
this Plan but for its good faith belief that it is a top hat plan,
agrees that all Plan benefits shall be contingent on the Plan being a
top hat plan and promises never to assert otherwise.
16.2 Unsecured General Creditor. Participants and their Beneficiaries,
--------------------------
heirs, successors and assigns shall have no legal or equitable rights,
interests or claims in any property or assets of an Employer. For
purposes of the payment of benefits under this Plan, the Employer's
assets shall be, and remain, neither pledged nor restricted under or as
a result of this Plan. An Employer's obligation under the Plan shall be
merely that of an unfunded and unsecured promise to pay money in the
future.
16.3 Employer's Liability. An Employer's liability for the payment of
--------------------
benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Employer and a Participant. An Employer shall
have no obligation to a Participant under the Plan except as expressly
provided in the Plan and his or her Plan Agreement.
16.4 Nonassignability. Neither a Participant nor any other person shall have
----------------
any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate, alienate or
convey in advance of actual receipt, the amounts, if any, payable
hereunder, or any part thereof, which are, and all rights to which are
expressly declared to be, unassignable and non-transferable. No part of
the amounts payable shall, prior to actual payment, be subject to
seizure, attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by a
Participant or any other person, be transferable by operation of law in
the event of a Participant's or any other person's bankruptcy or
insolvency or be transferable to a spouse as a result of a property
settlement or otherwise.
16.5 Not a Contract of Employment. The terms and conditions of this Plan
----------------------------
shall not be deemed to constitute a contract of employment between any
Employer and the Participant. Such employment is hereby acknowledged to
be an "at will" employment relationship that can be terminated at any
time for any reason, or no reason, with or without cause, and with or
without notice, except to the extent expressly provided in a written
employment agreement, if any. Nothing in this Plan shall be deemed to
give a Participant the right to be retained in the service of any
Employer or to interfere with the right of any Employer to discipline
or discharge the Participant at any time.
16.6 Furnishing Information. A Participant or his or her Beneficiary, as a
----------------------
condition to entitlement to benefits hereunder, shall cooperate with
the Committee by furnishing any and all information requested by the
Committee and take such other actions as may be requested in order to
facilitate the administration of the Plan and the payments of benefits
hereunder,
22
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
including but not limited to taking such physical examinations as the
Committee may deem necessary.
16.7 Terms. Whenever any words are used herein in the masculine, they shall
-----
be construed as though they were in the feminine in all cases where
they would so apply; and whenever any words are used herein in the
singular or in the plural, they shall be construed as though they were
used in the plural or the singular, as the case may be, in all cases
where they would so apply.
16.8 Captions. The captions of the articles, sections and paragraphs of this
--------
Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
16.9 Governing Law. Subject to ERISA, the provisions of this Plan shall
--------------
be construed and interpreted according to the internal laws of the
State of California without regard to its conflicts of laws principles.
16.10 Notice. Any notice or filing required or permitted to be given to the
------
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
Amgen Inc. Nonqualified
Deferred Compensation Plan
Committee
------------------------------
Amgen, Inc.
------------------------------
One Amgen Center Drive
------------------------------
Thousand Oaks, CA 91320-1799
------------------------------
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last address of the Participant shown on the
records of the Company.
16.11 Successors. The provisions of this Plan shall bind and inure to the
----------
benefit of the Participant's Employer and its successors and assigns
and the Participant and the Participant's designated Beneficiaries.
16.12 Spouse's Interest. The interest in the benefits hereunder of a spouse
-----------------
of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by
such spouse in any manner, including but not limited to such spouse's
will, nor shall such interest pass under the laws of intestate
succession.
23
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
16.13 Validity. In case any provision of this Plan shall be illegal or
--------
invalid for any reason, said illegality or invalidity shall not affect
the remaining parts hereof, but this Plan shall be construed and
enforced as if such illegal or invalid provision had never been
inserted herein.
16.14 Incompetent. If the Committee determines in its discretion that a
-----------
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of
that person's property, the Committee may direct payment of such
benefit to the guardian, legal representative or person having the care
and custody of such minor, incompetent or incapable person. The
Committee may require proof of minority, incompetence, incapacity or
guardianship, as it may deem appropriate prior to distribution of the
benefit. Any payment of a benefit shall be a payment for the account of
the Participant and the Participant's Beneficiary, as the case may be,
and shall be a complete discharge of any liability under the Plan for
such payment amount.
16.15 Court Order. The Committee is authorized to cause the Company or any
-----------
Employer to make any payments directed by court order in any action in
which the Plan or the Committee has been named as a party. In addition,
if a court determines that a spouse or former spouse of a Participant
has an interest in the Participant's benefits under the Plan in
connection with a property settlement or otherwise, the Committee, in
its sole discretion, shall have the right, notwithstanding any election
made by a Participant, to immediately cause the Company or any Employer
to distribute the spouse's or former spouse's interest in the
Participant's benefits under the Plan to that spouse or former spouse.
16.16 Distribution in the Event of Taxation.
-------------------------------------
(a) In General. If, for any reason, all or any portion of a
----------
Participant's benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee before a Change in Control, or the trustee of the Trust
after a Change in Control, for a distribution of that portion of
his or her benefit that has become taxable. Upon the grant of such
a petition, which grant shall not be unreasonably withheld (and,
after a Change in Control, shall be granted), a Participant's
Employer shall distribute to the Participant immediately available
funds in an amount equal to the taxable portion of his or her
benefit (which amount shall not exceed a Participant's unpaid
Account Balance under the Plan). If the petition is granted, the
tax liability distribution shall be made within 90 days of the
date when the Participant's petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under
this Plan.
(b) Trust. If the Trust terminates in accordance with its terms and
-----
benefits are distributed from the Trust to a Participant in
accordance with that Section, the Participant's Account, and
accordingly the benefits under this Plan, shall be reduced to the
extent of such distributions.
16.17 Insurance. The Employers, on their own behalf or on behalf of the
---------
trustee of the Trust, and, in their sole discretion, may apply for and
procure insurance on the life of the Participants, in such
24
[LOGO]
Amgen Nonqualified Deferred Compensation Plan
Plan Document
================================================================================
amounts and in such forms as the Trust may choose. The Employers or the
trustee of the Trust, as the case may be, shall be the sole owner and
beneficiary of any such insurance. The Participants shall have no
interest whatsoever in any such policy or policies, and at the request
of the Employers shall submit to medical examinations and supply such
information and execute such documents as may be required by the
insurance company or companies to whom the Employers have applied for
insurance.
16.18 Legal Fees To Enforce Rights After Change in Control. The Company and
----------------------------------------------------
each Employer is aware that upon the occurrence of a Change in Control,
the Board or the board of directors of a Participant's Employer (which
might then be composed of new members) or a shareholder of the Company
or the Participant's Employer, or of any successor corporation might
then cause or attempt to cause the Company, the Participant's Employer
or such successor to refuse to comply with its obligations under the
Plan and might cause or attempt to cause the Company or the
Participant's Employer to institute, or may institute, litigation
seeking to deny Participants the benefits intended under the Plan. In
these circumstances, the purpose of the Plan could be frustrated.
Accordingly, if, following a Change in Control, it should appear to any
Participant that the Company, the Participant's Employer or any
successor corporation has failed to comply with any of its obligations
under the Plan or any agreement thereunder or, if the Company, such
Employer or any other person takes any action to declare the Plan void
or unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from any Participant the
benefits intended to be provided, then the Company and the
Participant's Employer irrevocably authorize such Participant to retain
counsel of his or her choice at the expense of the Company and the
Participant's Employer (who shall be jointly and severally liable) to
represent such Participant in connection with the initiation or defense
of any litigation or other legal action, whether by or against the
Company, the Participant's Employer or any director, officer,
shareholder or other person affiliated with the Company, the
Participant's Employer or any successor thereto in any jurisdiction.
Notwithstanding anything in this Section or the Plan to the contrary,
the Company and/or the Participant's Employer shall have no obligation
under this Section to the extent there is a judicial determination or
final arbitration decision that the litigation or other legal action
brought by the Participant is frivolous.
IN WITNESS WHEREOF, the Company has signed this Plan document as of
__________, 2001.
"Company"
Amgen, Inc., a Delaware corporation
By: ____________________________
Title: ____________________________
25