Exhibit 10.4
AMENDED AND RESTATED AMGEN
INC.
PERFORMANCE AWARD
PROGRAM
(Amended and Restated Effective March 7,
2005)
ARTICLE I
PURPOSE
The purpose of this document is to
set forth the general terms and conditions applicable to the
Performance Award Program (the “ Program ”)
established by the Compensation and Management Development
Committee of the Board of Directors of Amgen Inc. (the “
Company ”) pursuant to, and in implementation of,
Section 10(d) of the Company’s Amended and Restated 1991
Equity Incentive Plan, as amended (the “ 1991 Plan
”). The Program is intended to carry out the purposes of the
1991 Plan and provide a means to reinforce objectives for sustained
long-term performance and value creation by awarding selected key
employees of the Company with payments in Company stock based on
the level of achievement of pre-established performance goals
during three-year performance cycles, subject to the restrictions
and other provisions of the Program and the 1991 Plan. The Program
shall be effective as of December 9, 2003.
ARTICLE II
DEFINITIONS
Unless otherwise defined herein,
capitalized terms used herein shall have the same definitions as
such terms are defined in the 1991 Plan.
“ Award ” shall
mean the earned Performance Units payable in Common Stock under the
Program for a Performance Cycle.
“ Board ” shall
mean the Board of Directors of the Company.
“ Code ” shall
mean the Internal Revenue Code of 1986, as amended.
“ Committee ”
shall mean the Compensation and Management Development Committee of
the Board, appointed by the Board from among its members to
administer the 1991 Plan in accordance with Section 2
thereof.
“ Common Stock ”
shall mean the common stock, par value $0.0001 per share, of the
Company.
“ Determination Date
” shall have the meaning ascribed to it in Section
4.1.
“ Participant ”
shall mean a key employee of the Company or an Affiliate who
participates in this Program pursuant to the provisions of Article
III hereof.
“ Peer Group ”
shall mean a list of companies selected by the
Committee.
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“ Performance Cycle
” shall mean each period of three consecutive fiscal years
commencing on the first day of the first fiscal year and ending on
the last day of the third fiscal year. Performance Cycles may
overlap.
“ Performance Goal
” shall have the meaning ascribed to it in Section
5.2.
“ Performance Unit
” shall mean a right granted to a Participant pursuant to the
Program to receive Common Stock, the payment of which is contingent
upon achieving the Performance Goals.
“ Permanent and Total
Disability ” shall have the meaning ascribed to such term
under Section 22(e)(3) of the Code and with such permanent and
total disability being certified prior to termination of a
Participant’s employment by (i) the Social Security
Administration, (ii) the comparable governmental authority
applicable to an Affiliate of the Company, (iii) such other body
having the relevant decision-making power applicable to an
Affiliate of the Company, or (iv) an independent medical advisor
appointed by the Company in its sole discretion, as applicable, in
any such case.
“ QDRO ” shall
mean a court order (i) that creates or recognizes the right of the
spouse, former spouse or child (an “ Alternate Payee
”) of an individual who is granted an Award to an interest in
such Award relating to marital property rights or support
obligations and (ii) that the 1991 Plan administrator determines
would be a “qualified domestic relations order,” as
that term is defined in Section 414(p) of the Code and Section
206(d) of the Employee Retirement Income Security Act (“
ERISA ”), but for the fact that the 1991 Plan is not a
plan described in Section 3(3) of ERISA.
“ Retirement-Eligible
” shall mean when a Participant is at least sixty (60) years
of age and has been an employee of the Company and/or an Affiliate
of the Company for at least fifteen (15) consecutive
years.
“ Section 162(m)
Participant ” shall mean any Participant designated by
the Committee as a “covered employee” within the
meaning of Section 162(m) of the Code whose compensation for the
fiscal year in which the Participant is so designated or a future
fiscal year may be subject to the limit on deductible compensation
imposed by Section 162(m) of the Code.
“ Voluntary Retirement
” shall mean voluntary termination of employment that is not
the result of Permanent and Total Disability.
ARTICLE III
PARTICIPATION
3.1 Participants .
Participants for any Performance Cycle shall be those active key
employees of the Company or an Affiliate who are designated in
writing as eligible for participation by the Committee within the
first ninety (90) days of such Performance Cycle.
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3.2 No Right to Participate .
No Participant or other employee of the Company or an Affiliate
shall, at any time, have a right to participate in this Program for
any Performance Cycle, notwithstanding having previously
participated in this Program.
ARTICLE IV
ADMINISTRATION
4.1 Generally . Within the
first ninety (90) days of each Performance Cycle, the Committee
shall establish the basis for payments under this Program in
relation to specified Performance Goals, as more fully described in
Article V hereof. Following the end of each Performance Cycle, once
all of the information necessary for the Committee to determine the
Company’s performance and comparative performance with the
Peer Group is made available to the Committee, the Committee shall
determine the amount of the Award payable to each Participant;
provided, however , that any such determination shall be
made no later than six months following the end of such Performance
Cycle (the date of such determination shall hereinafter be called
the “ Determination Date ”). The Committee shall
have the power and authority granted it under Section 2 of the 1991
Plan, including, without limitation, the authority to construe and
interpret this Program, to prescribe, amend and rescind rules,
regulations and procedures relating to its administration and to
make all other determinations necessary or advisable for
administration of this Program. Decisions of the Committee in
accordance with the authority granted hereby shall be conclusive
and binding. Subject only to compliance with the express provisions
hereof, the Committee may act in its sole and absolute discretion
with respect to matters within its authority under this
Program.
4.2 Provisions Applicable to
Section 162(m) Participants . Any Awards paid hereunder to a
Section 162(m) Participant shall satisfy and shall be interpreted
in a manner that satisfies any applicable requirements as
“qualified performance-based compensation” within the
meaning of Section 162(m) of the Code and any provisions,
application or interpretation of the Program or the 1991 Plan that
is inconsistent with this intent shall be disregarded.
4.3 Provisions Applicable to
Participants in Foreign Jurisdictions . Notwithstanding any
provision of the Program to the contrary, in order to comply with
the laws in other countries in which the Company and its Affiliates
operate or have employees, the Committee, in its sole discretion,
shall have the power and authority to:
(i) modify the terms and conditions
of any award of Performance Units granted to employees outside the
United States to comply with applicable foreign laws;
(ii) condition the effectiveness of
any award of Performance Units upon approval or compliance with any
applicable foreign laws, regulations, rules or local governmental
regulatory exemption or approvals;
(iii) provide for payment of any
Award in cash or Common Stock, at the Company’s election, to
the extent necessary to comply with applicable foreign laws;
and
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(iv) take any other action, before
or after an award of Performance Units is made, that it deems
advisable to obtain approval or comply with any necessary local
governmental regulatory exemptions or approvals.
Notwithstanding the foregoing, the
Committee may not take any actions hereunder, and no award of
Performance Units shall be granted, that would violate the
Securities Act of 1933, as amended, Securities Exchange Act of
1934, as amended, the Code, or any other securities or tax or other
applicable law or regulation.
ARTICLE V
AWARD
DETERMINATIONS
5.1 Award of Performance
Units . Within the first ninety (90) days of each Performance
Cycle, the Committee shall determine the number of Performance
Units (rounded down to the nearest whole number) to be awarded
under this Program to each Participant with respect to such
Performance Cycle and a date upon which the Performance Units shall
be assigned a unit value based on the fair market value of a share
of Common Stock on such specified date. Performance Units granted
under the Program shall constitute stock bonuses under Sections 7
and 10(d) of the 1991 Plan.
5.2 Performance Requirements
. Within the first ninety (90) days of each Performance Cycle, the
Committee shall approve the performance goals (collectively, the
“ Performance Goals ”) with respect to any of
the business criteria permitted under Section 10(d) of the 1991
Plan), each subject to such adjustments as the Committee may
specify in writing at such time, and shall establish a formula,
standard or schedule which aligns the level of achievement of the
Performance Goals with the earned Performance Units. The
Performance Goals may not be changed during the Performance Cycle,
but the thresholds and targets of the Performance Goals shall be
subject to such adjustments as the Committee may specify in writing
within the first ninety (90) days of the Performance
Cycle.
ARTICLE VI
PAYMENT OF AWARDS
6.1 Form and Timing of
Payment . Except
