Exhibit 10.20
AMGEN INC.
EXECUTIVE
NONQUALIFIED RETIREMENT
PLAN
WHEREAS, Amgen Inc., a Delaware
corporation (the “Company”) established the Amgen Inc.
Executive Nonqualified Retirement Plan effective as of
January 1, 2001, to provide supplemental retirement income
benefits for a select group of management and highly compensated
employees through Company contributions; and
WHEREAS, the Company desires to
amend and restate the Plan, effective as of January 1, 2009,
subject to any earlier date specifically set forth within the Plan,
in order to comply with Section 409A of the Internal Revenue
Code and related Treasury Regulations, and to incorporate prior
amendments;
NOW, THEREFORE, effective as of
January 1, 2009, subject to any earlier date specifically set forth
within the Plan, the Plan is hereby amended and restated to read as
follows:
ARTICLE I.
TITLE AND
DEFINITIONS
1.1 Title .
This Plan shall be known as the
Amgen Inc. Executive Nonqualified Retirement Plan.
1.2 Definitions .
Whenever the following words and
phrases are used in this Plan, with the first letter capitalized,
they shall have the meanings specified below.
(a) “Affiliate” shall
mean, with respect to any entity, all other entities with which the
subject entity would be aggregated and treated as a single employer
under Code Section 414(b) (controlled group of corporations)
and Code Section 414(c) (a group of trades or businesses,
whether or not incorporated, under common control), as
applicable.
(b) “Beneficiary” or
“Beneficiaries” shall mean the person or persons,
including a trustee, personal representative or other fiduciary,
last designated in writing by a Participant in accordance with the
procedures established by the Committee to receive the benefits
specified hereunder in the event of the Participant’s death.
However, no designation of a Beneficiary other than the
Participant’s spouse shall be valid unless consented in
writing by such spouse. No Beneficiary designation shall become
effective until it is filed with the Committee. Any designation
shall be revocable at any time through a written instrument filed
by the Participant with. the Committee with or without the consent
of the previous Beneficiary, (unless such previous Beneficiary was
the Participant’s spouse). If there is no Beneficiary
designation in effect, or the designated Beneficiary does not
survive the Participant, then the Participant’s spouse shall
be the Beneficiary. If there is no surviving spouse, the duly
appointed and currently acting personal representative of the
Participant’s estate (which shall include either the
Participant’s probate estate or living trust) shall be the
Beneficiary. In any case where there is no such personal
representative of the Participant’s estate duly appointed and
acting in that capacity within 90 days after the
Participant’s death (or such extended period as the Committee
determines is reasonably necessary to allow such personal
representative to be appointed, but not to exceed 180 days after
the Participant’s death), then Beneficiary shall mean the
person or persons who can verify by affidavit or court order to the
satisfaction of the Committee that they are legally entitled to
receive the benefits specified hereunder. In the event any amount
is payable under the Plan to a minor, payment shall not be made to
the minor, but instead be paid (a) to that person’s
living parent(s) to act as custodian, (b) if that
person’s parents are then divorced, and
one parent is the sole custodial parent, to such
custodial parent, or (c) if no parent of that person is then
living, to a custodian selected by the Committee to hold the funds
for the minor under the Uniform Transfers or Gifts to Minors Act in
effect in the jurisdiction in which the minor resides. If no parent
is living and the Committee decides not to select another custodian
to hold the funds for the minor, then payment shall be made to the
duly appointed and currently acting guardian of the estate for the
minor or, if no guardian of the estate for the minor is duly
appointed and currently acting within 60 days after the date the
amount becomes payable, payment shall be deposited with the court
having jurisdiction over the estate of the minor. Payment by the
Company pursuant to any unrevoked Beneficiary designation, or to
the Participant’s estate if no such designation exists, of
all benefits owed hereunder shall terminate any and all liability
of the Company.
(c) “Board of Directors”
or “Board” shall mean the Board of Directors of the
Company.
(d) “Cause” shall mean
(i) a Participant’s conviction of a felony,
(ii) the engaging by Participant in conduct that constitutes
willful gross neglect or willful gross misconduct in carrying out
his or her duties to the Company, resulting, in either case, in
material economic harm to the Company, unless the Participant
believed in good faith that such conduct was in, or not contrary
to, the best interests of the Company, (iii) the
Participant’s material breach of any of the terms of his or
her offer letter agreement or the Proprietary Information and
Inventions Agreement or (iv) the Participant’s failure
to follow any lawful directive of Amgen Inc.’s Chief
Executive Officer with respect to the Participant’s
employment. For purposes hereof, no act, or failure to act, by
Participant shall be deemed “willful” unless done, or
omitted to be done, by Participant not in good faith.
(e) “Change of Control”
shall be as defined under the Amgen Inc. Change of Control
Severance Plan.
(f) “Code” shall mean
the Internal Revenue Code of 1986, as amended.
(g) “Committee” shall
mean the Compensation Committee of the Board.
(h) “Company” shall mean
Amgen Inc., and any successor corporations. Company shall also
include affiliates and subsidiaries of Amgen Inc., and any
successor corporations, if the Committee provides that such
corporation shall participate in the Plan.
(i) “Company Discretionary
Contributions” shall mean, for each Participant, the
discretionary amount that the Company allocates to a Participant
under this Plan as determined by the Committee. Such amount may
differ from Participant to Participant, including no
contributions.
(j) “Crediting Date”
shall mean the date, as determined by the Committee, on which a
Participant’s Nonqualified Retirement Account is credited
with the Company Discretionary Amount.
(k) “Disability” shall
mean a permanent and total disability that has been certified by
the Social Security Administration prior a Participant’s
Separation from Service.
(l) “Disability Prorated
Nonqualified Retirement Account Amount” shall mean portion of
the Nonqualified Retirement Account Amount based upon the ratio of
(x) the sum of the number of full months of the
Participant’s active employment with the Company plus 24
months and (y) the number of months between the
Participant’s first day of participation in the plan and the
Crediting Date.
(m) “Effective Date”
shall mean January 1, 2009, subject to any earlier date
specifically set forth within the Plan.
(n) “Eligible Employee”
shall mean individuals selected by the Committee, in its sole
discretion, from those staff members of the Company.
(o) “Employer” shall
mean, for the purpose of determining whether a Participant has
experienced a Separation from Service, the entity for which the
Participant performs services and with respect to which the legally
binding right to compensation deferred or contributed under this
Plan arises and all of its Affiliates.
(p) “Nonqualified Retirement
Account” shall mean the bookkeeping account maintained by
Company for each Participant that is credited with an amount equal
to the Company Discretionary Amount, if any, and any interest
credited pursuant to Article 4.
(q) “Participant” shall
mean any Eligible Employee who is selected by the Committee, in its
sole discretion, to participate in the Plan.
(r) “Plan” shall mean
the Amgen Inc. Executive Nonqualified Retirement Plan set forth
herein, now in effect, or as amended from time to time.
(s) “Plan Year” shall
mean the initial period beginning on January 1, 2001 and
ending on December 31, 2001 and thereafter the 12 consecutive
month period beginning on each January 1 and ending on each
December 31.
(t) “Prorated Nonqualified
Retirement Account Amount” shall mean a prorated portion of
the Nonqualified Retirement Account Amount based upon the ratio of
(i) the number of full months of the Participant’s
active employment with the Company and (ii) the number of
months between the Participant’s first day of participation
in the Plan and the Crediting Date, provided, however, that if such
a termination of employment occurs within 2 years after a Change of
Control of the Company, as defined in the Amgen Inc. Change of
Control Severance Plan, the Participant shall be paid (i) the
Prorated Nonqualified Retirement Account Amount plus
(ii) an amount equal to the Discretionary Company Contribution
minus the sum of (x) the Prorated Nonqualified Retirement
Account Amount and (y) an amount equal to the aggregate spread
between the exercise prices of the Participant’s unvested
Company stock options which are in the money and the vesting of
which is accelerated by the Change of Control and the NASDAQ
closing price of the Company stock, with such spread being
determined as of the date of the Change of Control. (See Appendix C
for an example).
(u) “Retirement Date”
shall mean the date upon which a Participant completes 10 years of
active employment with the Company and attains age sixty
(60).
(v) “Separation from
Service” shall mean the termination of services provided by a
Participant to his or her Employer, whether voluntarily or
involuntarily, as determined by the Committee in accordance with
Treasury Regulation Section 1.409A-1(h). In determining
whether a Participant has experienced a Separation from Service,
the following provisions shall apply:
(i) Except as otherwise provided in
Section 1.2(v)(ii), a Separation from Service shall occur when
a Participant experiences a termination of employment with his or
her Employer. A Participant shall be considered to have experienced
a termination of employment when the facts and circumstances
indicate that either (i) the Participant is not reasonably
expected to perform further services for the Employer after a
certain date, or (ii) that the level of bona fide services the
Participant will perform for the Employer after such date (whether
as an employee or as an independent contractor) will permanently
decrease to no more than 49% of the average level of bona fide
services performed by such Participant (whether as an employee or
an independent contractor) over the immediately preceding
36-
month period (or full period of services to the
Employer if the Participant has been providing services to the
Employer for less than 36 months).
(ii) If a Participant is on military
leave, sick leave, or other bona fide leave of absence, the
employment relationship between the Participant and the Employer
shall be treated as continuing intact, provided that the period of
such leave does not exceed six months, or longer, so long as the
Participant retains a right to reemployment with the Employer under
an applicable statute or by contract. If the period of leave
exceeds six months and the Participant does not retain a right to
reemployment under an applicable statute or by contract, the
Participant will incur a Separation from Service as of the first
day immediately following the end of such six-month period.
However, where a Participant’s leave of absence is due to his
or her “disability” (as defined below), a 29-month
period of absence will be substituted for such six-month period. In
applying the provisions of this paragraph, a leave of absence shall
be considered a bona fide leave of absence only if there is a
reasonable expectation that the Participant will return to perform
services for the Employer. For purposes of this
Section 1.2(v)(ii), “disability” shall mean any
medically determinable physical or mental impairment resulting in a
Participant’s inability to perform the duties of his or her
position or any substantially similar position, where such
impairment can be expected to result in death or can be expected to
last for a continuous period of not less than six months. The
determination of whether a Participant is disabled shall be made by
the Employer’s short-term disability insurance carrier or
administrator (or, if none, by the Committee).
(iii) Notwithstanding the foregoing,
if a Participant provides services to the Employer as both an
Eligible Employee and a member of the Board, then to the extent
permitted by Treasury Regulation Section 1.409A-1(h)(5), the
services provided by such Participant as a Board member shall not
be taken into account in determining whether the Participant
experiences a Separation from Service.
ARTICLE II.
PARTICIPATION
2.1 An Eligible Employee shall
become a Participant in the Plan if the Committee designates such
Eligible Employee, in writing, as a Participant. The Committee
shall also designate the date on which an Eligible Employee becomes
a Participant.
ARTICLE III.
ACCOUNTS AND TRUST
FUNDING
3.1 Nonqualified Retirement
Account .
(a) The Committee shall establish
and maintain a Nonqualified Retirement Account for each Participant
under the Plan, which shall be credited the amount of Company
Discretionary Contributions, if any, contributed to the Plan on
behalf of such Participant.
3.2 Trust Funding
.
The Company shall pay all Plan
benefits. At its discretion, the Committee may establish one or
more trusts, with such trustees as the Board may approve, for the
purpose of providing for the payment of such benefits.
Although the principal of such a
trust and any earnings thereon shall be held separate and apart
from other funds of Company and shall be used exclusively for the
uses and purposes of Plan Participants and Beneficiaries as set
forth therein, neither the Participant nor their Beneficiaries
shall have
any preferred claim on, or any beneficial
ownership in, any assets of the trust prior to the time such assets
are paid to the Participants or Beneficiaries as benefits and all
rights created under this Plan shall be unsecured contractual
rights of Plan Participants and Beneficiaries against the Company.
Any assets held in the Trust will be subject to the claims of
Company’s general creditors under federal and state law in
the event of insolvency.
ARTICLE IV.
CREDITING OF
ACCOUNTS
4.1 Crediting of Company
Discretionary Contributions . If the Participant is actively
employed by the company on the Crediting Date, the Company shall
credit the Nonqualified Retirement Account with the Company
Discretionary Contributions.
4.2 Termination of Employment
before Crediting Date . In the event that the
Participant’s active employment with the Company is
terminated before the Crediting Date for any reason, no credits
will be made to the Nonqualified Retirement Account and the
Participant will not be paid any portion of the Nonqualified
Retirement Account, except as set forth below:
(a) If the Participant’s
employment is terminated by reason of the Participant’s
Disability before the Crediting Date, the Company shall pay the
Participant a Disability Prorated Nonqualified Retirement Account
Amount in accordance with the provisions of Article V. No interest
shall be credited on any such payment.
(b) If the Participant’s
employment is terminated by the Company without Cause before the
Crediting Date, the Company shall pay the Participant a Prorated
Nonqualified Retirement Account Amount in accordance with the
provisions of Article V. No interest shall be credited on any such
payment.
4.3 Interest . No interest
shall be credited to the Nonqualified Retirement Account prior to
the Crediting Date, in any event. However, if the Participant is
actively employed by the Company on the Crediting Date, from and
after the Crediting Date the Company shall credit the Nonqualified
Retirement Account with interest as set forth below.
(a) Interest after Retirement
Date . If the Participant continues to be actively employed by
the Company until his or her Retirement Date, the Company shall
credit interest annually on the Nonqualified Retirement Account at
a rate equal to 125% of the 10-year moving average yield on 10-year
U.S. Treasury notes, adjusted annually and compounded annually,
from the Crediting Date until the date upon which the Nonqualified
Retirement Account and accrued interest is distributed. In the
event that the Participant elects to receive his or her
distribution in installments, as provided below in
Section 5.1(b), interest will be credited on the declining
balance of the Nonqualified Retirement Account until it is finally
distributed.
(b) Interest before Retirement
Date . If the Participant’s employment with the Company
is terminated for any reason before his or her Retirement Date, the
Company shall credit interest annually on the Nonqualified
Retirement Account at a rate equal to 100% of the 10-year moving
average yield on 10-year U.S. Treasury notes, adjusted annually and
compounded annually, from the Crediting Date until the date upon
which the Nonqualified Retirement Account, and accrued interest is
distributed to the Participant.
ARTICLE V.
DISTRIBUTIONS
5.1 Distribution of Accounts
. The Company shall make distributions from the Nonqualified
Retirement Account as set forth below.
(a) Distribution upon Separation
from Service before Retirement Date . If the Participant
experiences a Separation from Service for any reason before the
Participant’s Retirement Date, the amount credited to the
Participant’s Nonqualified Retirement Account, plus interest
credited to the date of the Participant’s Separation from
Service, shall be distributed to the Participant in a lump-sum
payment as soon as administratively practicable during the Plan
Year immediately following the Plan Year in which such Separation
from Service occurs.
(b) Distribution upon Separation
from Service after Retirement Date . If the Participant
experiences a Separation from Service for any reason after the
Participant’s Retirement Date, the amount credited to the
Participant’s Nonqualified Retirement Account, plus interest
credited to the date of the Participant’s Separation from
Service, shall be distributed to the Participant in a lump-sump
payment as soon as administratively practicable during the Plan
Year immediately following the Plan Year in which such Separation
from Service occurs, unless the Participant elects on an Election
Form, within the timeframes set forth in Section 5.1(d), to
receive substantially e
