exv10w9
Exhibit 10.9
AMGEN INC.
CHANGE OF CONTROL SEVERANCE PLAN
AMGEN INC., a Delaware corporation, has established this Change of Control Severance Plan, as
amended and restated, effective as of December 9, 2010, as subsequently amended effective March 2,
2011 (the “Plan”) for the benefit of certain key employees of Amgen Inc. and Covered Subsidiaries
(as defined below).
The purposes of the Plan are as follows:
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(1) |
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To reinforce and encourage the continued attention and dedication of members of
the Company’s management to their assigned duties without the distraction arising from
the possibility of a change of control of the Company; |
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(2) |
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To enable and encourage the Company’s management to focus their attention on
obtaining the best possible deal for the Company’s stockholders and to make an
independent evaluation of all possible transactions, without being influenced by their
personal concerns regarding the possible impact of various transactions on the security
of their jobs and benefits; and |
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(3) |
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To provide severance benefits to any Participant (as defined below) who incurs
a termination of employment under the circumstances described herein within a certain
period following a Change of Control (as defined below). |
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1. |
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Defined Terms. For purposes of the Plan, the following terms shall
have the meanings indicated below: |
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(A) |
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“Accountants” shall mean the Company’s independent registered public
accountants serving immediately prior to the Change of Control; provided, however, that
in the event that the Accountants are also serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Administration
Committee shall appoint another nationally recognized public accounting firm to make
the calculations required hereunder (which accounting firm shall then be referred to as
the Accountants hereunder). |
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(B) |
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“Administration Committee” shall mean the committee which is responsible for
administering the Plan, as described in Section 3(A) hereof. |
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(C) |
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“Amgen Retirement Savings Plan” shall mean the Amgen Retirement and Savings
Plan, As Amended and Restated Effective January 1, 2010, or any successor plan. |
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(D) |
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“Amgen Supplemental Retirement Plan” shall mean the Amgen Inc. Supplemental
Retirement Plan, Amended and Restated Effective January 1, 2009, or any successor plan. |
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(E) |
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“Benefits Continuation Period” shall mean the earlier to occur of (i) the
expiration of a Participant’s eligibility for coverage under COBRA, and (ii) the |
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expiration of the eighteen (18) month period immediately following the
Participant’s Date of Termination. |
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(F) |
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“Benefits Multiple” shall mean (i) with respect to each Group I Participant,
two (2), (ii) with respect to each Group II Participant, two (2), and (iii) with
respect to each Group III Participant, one (1). |
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(G) |
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“Board” shall mean the Board of Directors of the Company. |
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(H) |
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“Cash Severance Payment” shall mean a lump sum cash payment in an amount equal
to the product of (x) the Participant’s Benefits Multiple, and (y) the sum of (i) the
Participant’s annual base salary as in effect immediately prior to the Date of
Termination or, if higher, as in effect immediately prior to the Change of Control,
plus (ii) the Participant’s targeted annual bonus for the year in which such Date of
Termination occurs (determined as the product of the Participant’s annual base salary
and the Participant’s target annual bonus percentage, each as in effect immediately
prior to the Date of Termination or, if higher, as in effect immediately prior to the
Change of Control). |
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(I) |
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“Cause,” with respect to any Participant, shall mean (i) the Participant’s
conviction of a felony, or (ii) the engaging by the Participant in conduct that
constitutes willful gross neglect or willful gross misconduct in carrying out the
Participant’s duties, 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. For purposes of clause (ii) above, no
act, or failure to act, on the Participant’s part shall be deemed “willful” unless
done, or omitted to be done, by the Participant not in good faith. |
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(J) |
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A “Change of Control” of the Company shall be deemed to have occurred at any of
the following times: |
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(i) |
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upon the acquisition (other than from the Company) by any
person, entity or “group,” within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act (excluding, for this purpose, the Company or its
affiliates, or any employee benefit plan of the Company or its affiliates which
acquires beneficial ownership of voting securities of the Company), of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more of either the then outstanding
shares of Common Stock or the combined voting power of the Company’s then
outstanding voting securities entitled to vote generally in the election of
directors; or |
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(ii) |
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at the time individuals who, as of December 9, 2010, constitute
the Board (the “Incumbent Board”) cease for any reason to constitute at least
a majority of the Board, provided, that any person becoming a director
subsequent to December 9, 2010, whose election, or nomination for election by
the Company’s stockholders, was approved by a vote of at
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least a majority of the directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of the directors of the Company) shall be, for
purposes of the Plan, considered as though such person were a member of the
Incumbent Board; or |
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(iii) |
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immediately prior to the consummation by the Company of a
reorganization, merger, consolidation, (in each case, with respect to which
persons who were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
more than fifty percent (50%) of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company’s then outstanding voting securities) or a liquidation or
dissolution of the Company or the sale of all or substantially all of the
assets of the Company; or |
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(iv) |
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the occurrence of any other event which the Incumbent Board in
its sole discretion determines constitutes a Change of Control. |
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(K) |
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“Change of Control Period” shall mean the period beginning on the date of a
Change of Control and ending on the second anniversary of such Change of Control. |
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(L) |
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“COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended. |
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(M) |
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“Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time. |
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(N) |
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“Common Stock” shall mean the common stock of the Company, par value $0.0001
per share. |
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(O) |
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“Company” shall mean Amgen Inc., a Delaware corporation, and, except in
determining under Section 1(J) hereof whether or not any Change of Control of the
Company has occurred, shall include any successor to its business and/or assets.
“Company” shall exclude any disregarded entity pursuant Treasury Regulations section
301.7701-3, unless the Plan is amended to designate the disregarded entity’s employees
as Participants. |
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(P) |
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“Compensation Committee” shall mean the Compensation and Management Development
Committee of the Board. |
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(Q) |
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“Confidential Information” shall mean information disclosed to the Participant
or known by the Participant as a consequence of or through his or her relationship with
the Company, about the customers, employees, business methods, public relations
methods, organization, procedures or finances, including, without
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limitation, information of or relating to customer lists, of the Company and its
affiliates. |
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(R) |
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“Covered Subsidiaries” shall mean those Subsidiaries of the Company which are
incorporated in any of the fifty states of the United States or the District of
Columbia, except as otherwise determined in writing by the Administration Committee in
its sole discretion and designated on Annex A attached hereto as maintained by
the Administration Committee. |
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(S) |
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“Date of Termination” shall mean with respect to any purported termination of a
Participant’s employment (other than by reason of the Participant’s death), (i) if the
Participant’s employment is terminated for Disability, the date upon which a Notice of
Termination is given, and (ii) if the Participant’s employment is terminated for any
other reason, whether voluntarily or involuntarily, the date that the Participant’s
employment terminates, as specified in the Notice of Termination (which shall be within
sixty (60) days from the date such Notice of Termination is given). |
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(T) |
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“Disability” shall be determined in accordance with the Company’s long-term
disability plan as in effect immediately prior to a Change of Control. |
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(U) |
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“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from
time to time. |
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(V) |
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“Good Reason,” with respect to any Participant, shall mean the occurrence
(without the Participant’s express written consent) of any of the following conditions,
but only if (1) the Participant provides written notice to the Company of the existence
of the condition within thirty (30) days of the initial existence of the condition; (2)
the Company fails to remedy the condition within the thirty (30)-day period following
the Company’s receipt of the notice delivered pursuant to clause (1); and (3) the
Participant actually terminates employment within thirty (30) days following the
expiration of the thirty (30)-day period described above in clause (2): |
(i) any adverse and material diminution in the Participant’s
authority, duties or responsibilities as they existed immediately
prior to the Change of Control or as the same may be increased
from time to time thereafter;
(ii) the Company’s material reduction of the Participant’s annual
base salary as in effect immediately prior to the Change of
Control;
(iii) relocation of the Company’s offices at which the
Participant is employed immediately prior to the Change of
Control which increases the Participant’s daily commute by more
than one-hundred (100) miles on a round trip basis; or
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(iv) any other action or inaction by the Company that constitutes
a material breach of the agreement under which the Participant
provides services.
A Participant’s right to terminate his or her employment for Good Reason
shall not be affected by the Participant’s incapacity due to physical or
mental illness.
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(W) |
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“Group I Participants” shall mean those staff members of the Company, who hold
the title of senior vice president or equivalent and above, and any other senior
executive-level staff members of the Company and the Covered Subsidiaries whom the
Administration Committee has designated as Group I Participants, as such group shall be
constituted immediately prior to a Change of Control. At or before the occurrence of a
Change of Control, the Company shall notify the Group I Participants in writing of
their status as Participants in the Plan. |
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(X) |
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“Group II Participants” shall mean those management-level staff members of the
Company and the Covered Subsidiaries at Level 8 or equivalent and above and who are not
Group I Participants, as such group shall be constituted immediately prior to a Change
of Control. At or before the occurrence of a Change of Control, the Company shall
notify the Group II Participants in writing of their status as Participants in the
Plan. |
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(Y) |
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“Group III Participants” shall mean those management-level staff members of the
Company and the Covered Subsidiaries at Level 7 or equivalent, as such group shall be
constituted immediately prior to a Change of Control. At or before the occurrence of a
Change of Control, the Company shall notify the Group III Participants in writing of
their status as Participants in the Plan. |
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(Z) |
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“Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in the Plan relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the
Participant’s employment under the provision so indicated. |
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(AA) |
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“Participants” shall mean, collectively, the Group I Participants, the Group II
Participants and the Group III Participants. |
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(BB) |
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“Proprietary Information Agreement” shall mean the Company’s form of
Proprietary Information and Inventions Agreement in the form in effect immediately
prior to a Change of Control. |
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(CC) |
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"Subsidiary” shall mean any entity (other than the Company), in an unbroken
chain of entities beginning with the Company if each of the entities other than the
last entity in the unbroken chain beneficially owns, at the time of the determination,
securities or interests representing more than fifty percent (50%) of the total
combined voting power of all classes of securities or interests in one of the other
entities in such chain. |
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2. |
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Effective Date and Term of Plan. The Plan, as amended and restated,
shall be effective as of December 9, 2010 and shall continue in effect through
December 31, 2014; provided, however, that commencing on December 31, 2014 and on each
December 31 thereafter, the Plan shall automatically be extended for one additional
year by adding one year to the last day of the term as then in effect unless, not
later than November 30 of such year, the Company shall have given notice to the
Participants that the term of the Plan will not be extended; provided, further, that
if a Change of Control occurs during the original or any extended term of the Plan,
the term of the Plan shall continue in effect for a period of not less than
twenty-four (24) months beyond the month in which such Change of Control occurred. |
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(A) |
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The Plan shall be interpreted, administered and operated by the Compensation
Committee, except that if the Compensation Committee determines that a Change of
Control is likely to occur, the Compensation Committee shall appoint a person or group
of persons who shall constitute the Administration Committee after the occurrence of
the Change of Control, which Administration Committee shall have the power to
interpret, administer and operate the Plan after the occurrence of the Change of
Control. The Administration Committee shall have complete authority, in its sole
discretion subject to the express provisions of the Plan, to determine who shall be a
Participant, to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, and to make all other determinations necessary or advisable
for the administration of the Plan. The Administration Committee may delegate any of
its duties hereunder to such person or persons from time to time as it may designate. |
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(B) |
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All expenses and liabilities which members of the Administration Committee
incur in connection with the administration of the Plan shall be borne by the Company.
The Administration Committee may employ attorneys, consultants, accountants,
appraisers, brokers, or other persons in connection with such administration, and the
Administration Committee, the Company and the Company’s officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons. No
member of the Compensation Committee, the Administration Committee or the Board shall
be personally liable for any action, determination or interpretation made in good faith
with respect to the Plan, and all members of the Compensation Committee, the
Administration Committee and the Board shall be fully protected by the Company in
respect of any such action, determination or interpretation. |
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4.1 |
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Termination After Change of Control. If a Participant’s employment is
terminated during a Change of Control Period (a) by the Company other than for Cause or
Disability, or (b) by the Participant for Good Reason, the Company shall
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pay the Participant the amounts, and provide the Participant with the benefits,
described in this Section 4.1. |
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(A) |
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Cash Severance Payment. In lieu of any further salary payments to the
Participant for periods subsequent to the Date of Termination and in lieu of any
severance benefit otherwise payable to the Participant (other than accrued vacation and
similar benefits otherwise payable upon termination of employment pursuant to Company
policies and programs), the Company shall pay to the Participant the Cash Severance
Payment. |
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(B) |
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Benefits. Subject to subsection (B) of Section 11.6 hereof, if, as a result of
the Participant’s termination of employment, the Participant becomes entitled to, and
timely elects to continue, health care (including any applicable vision benefits)
and/or dental coverage under COBRA, the Company shall provide the Participant and his
or her dependents with Company-paid group health and dental insurance continuation
coverage under COBRA during the Benefits Continuation Period. |
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(C) |
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The Company shall pay to the Participant any earned but unpaid portion of the
Participant’s base salary as of the Date of Termination at the rate in effect at the
time Notice of Termination is given, plus all other amounts to which the Participant is
entitled under any compensation plan or practice of the Company at the time such
payments are due. |
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(D) |
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The Participant shall be fully vested in his or her accrued benefits under the
Amgen Retirement Savings Plan and the Amgen Supplemental Retirement Plan, as
applicable. The Company shall provide the Participant with either, in the Company’s
sole discretion, a lump-sum cash payment or a contribution to the Amgen Supplemental
Retirement Plan, in an amount equal to the sum of (1) the product of $2,500 and the
Benefits Multiple and (2) the product of (x) 0.10, (y) the sum of (i) the Participant’s
annual base salary as in effect immediately prior to the Date of Termination or, if
higher, as in effect immediately prior to the Change of Control, plus (ii) the
Participant’s targeted annual bonus for the year in which such Date of Termination
occurs (determined as the product of the Participant’s annual base salary and the
Participant’s target annual bonus percentage, each as in effect immediately prior to
the Date of Termination or, if higher, as in effect immediately prior to the Change of
Control) and (z) the Benefits Multiple. Subject to subsection (B) of Section 11.6
hereof, payment under this Section 4.1(D) will be made within 45 days (or as soon
thereafter as is administratively practicable) after the Date of Termination, but in no
event more than two and one-half months after the end of the calendar year in which the
Date of Termination occurs. |
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(E) |
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In any situation where under applicable law the Company has the power to
indemnify (or advance expenses to) the Participant in respect of any judgments, fines,
settlements, loss, cost or expense (including attorneys’ fees) of any nature related to
or arising out of the Participant’s activities as an agent, employee, officer or
director of the Company or in any other capacity on behalf of or at the
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request of the Company, the Company shall promptly on written request, indemnify
(and advance expenses to) the Participant to the fullest extent permitted by
applicable law. Such agreement by the Company shall not be deemed to impair any
other obligation of the Company respecting the Participant’s indemnification
otherwise arising out of this or any other agreement or promise of the Company or
under any statute. |
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(F) |
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For the four (4) year period immediately following the Date of Termination, the
Company shall furnish each Participant who was a director and/or officer of the Company
at any time prior to the Date of Termination with directors’ and/or officers’ liability
insurance, as applicable, insuring the Participant against insurable events which occur
or have occurred while the Participant was a director or officer of the Company, such
insurance to have policy limits aggregating not less than the amount in effect
immediately prior to the Change of Control, and otherwise to be in substantially the
same form and to contain substantially the same terms, conditions and exceptions as the
liability insurance policies provided for officers and directors of the Company in
force from time to time, provided, however, that if the aggregate annual premiums for
such insurance at any time during such period exceed one hundred and fifty percent
(150%) of the per annum rate of premium currently paid by the Company for such
insurance, then the Company shall provide the maximum coverage that will then be
available at an annual premium equal to one hundred and fifty percent (150%) of such
rate. |
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(A) |
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All calculations required to be made under Section 4.1 hereof, including the
amount of the Cash Severance Payment and the assumptions to be utilized in arriving at
such calculations shall be made by the Accountants. The Accountants shall provide the
Participant and the Company with detailed supporting calculations with respect to such
calculations at least fifteen (15) business days prior to the date of the Change of
Control (or as soon as practicable in the event that the Accountants have less than
fifteen (15) business days advance notice of the potential occurrence of the Change of
Control) with respect to the impact of any payment which will be made to the
Participant before, at or immediately after the Change of Control and from time to time
thereafter to the extent that the Participant may become entitled to receive any
additional payments or benefits which would affect the amount of any “excess parachute
payments” within the meaning of Section 280G(b)(1) of the Code payable to the
Participant in order that the Participant may determine whether it is in the best
interest of the Participant to waive the receipt of any or all amounts which may
constitute “excess parachute payments.” Any calculation by the Accountants shall be
binding upon the Company and the Participant. All fees and expenses of the Accountants
under this Section 4.2 shall be borne solely by the Company. |
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(B) |
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Notwithstanding any other provision of this Plan, in the event that any payment
or benefit received or to be received by the Participant, including any payment or
benefit received in connection with a termination of the Participant’s employment,
whether pursuant to the terms of this Plan or any other plan,
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arrangement or agreement, (all such payments and benefits, including the payments
and benefits under Section 4 hereof, being hereinafter referred to as the “Total
Payments”) would be subject (in whole or part), to the excise tax imposed under
Section 4999 of the Code (the “Excise Tax”), then, after taking into account
any reduction in the Total Payments provided by reason of Section 280G of the Code
in such other plan, arrangement or agreement, the payments under this Plan shall be
reduced in the order specified below, to the extent necessary so that no portion of
the Total Payments is subject to the Excise Tax but only if (i) the net amount of
such Total Payments, as so reduced (and after subtracting the net amount of federal,
state and local income taxes on such reduced Total Payments and after taking into
account the phase out of itemized deductions and personal exemptions attributable to
such reduced Total Payments) is greater than or equal to (ii) the net amount of such
Total Payments without such reduction (but after subtracting the net amount of
federal, state and local income taxes on such Total Payments and the amount of
Excise Tax to which the Participant would be subject in respect of such unreduced
Total Payments and after taking into account the phase out of itemized deductions
and personal exemptions attributable to such unreduced Total Payments). The
payments and benefits under this Plan shall be reduced in the following order: (A)
reduction of any cash severance payments otherwise payable to the Participant that
are exempt from Section 409A of the Code; (B) reduction of any other cash payments
or benefits otherwise payable to the Participant that are exempt from Section 409A
of the Code, but excluding any payments attributable to any acceleration of vesting
or payments with respect to any equity award that are exempt from Section 409A of
the Code; (C) reduction of any other payments or benefits otherwise payable to the
Participant on a pro-rata basis or such other manner that complies with Section 409A
of the Code, but excluding any payments attributable to any acceleration of vesting
and payments with respect to any equity award that are exempt from Section 409A of
the Code; and (D) reduction of any payments attributable to any acceleration of
vesting or payments with respect to any equity award that are exempt from Section
409A of the Code, in each case beginning with payments that would otherwise be made
last in time. |
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(C) |
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For purposes of determining whether and the extent to which the Total Payments
will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or
enjoyment of which the Executive shall have waived at such time and in such manner as
not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall
be taken into account; (ii) no portion of the Total Payments shall be taken into
account which, in the written opinion of the Accountants, does not constitute a
“parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by
reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no
portion of such Total Payments shall be taken into account which, in the opinion of the
Accountants, constitutes reasonable compensation for services actually rendered, within
the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as
defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation;
and (iii) the value of any non-cash benefit or any deferred payment or benefit included
in the
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Total Payments shall be determined by the Accountants in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. |
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4.3 |
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Subject to subsection (B) of Section 11.6 hereof, the cash payments provided in
subsections (A), (C) and (D) of Section 4.1 hereof shall be made by the fifth (5th) day
following the receipt by the Participant of the Accountants’ calculation, but in no
event later than March 15 of the calendar year following the calendar year in which the
Participant’s employment is terminated. As a result of uncertainty in the application
of Section 280G and Section 4999 of the Code at the time of the initial calculation by
the Accountants hereunder, it is possible that the Cash Severance Payment made by the
Company will have been less than the Company should have paid pursuant to Section
4.1(A) hereof, as the case may be (the amount of any such deficiency, the
“Underpayment”) or more than the Company should have paid pursuant to Section 4.1(A)
hereof, as the case may be (the amount of any such overage, the “Overpayment”). In the
event of an Underpayment, the Company shall pay the Participant the amount of such
Underpayment (together with interest at 120% of the rate provided in Section
1274(b)(2)(B) of the Code) not later than five (5) business days after the amount of
such Underpayment is subsequently determined, provided, however, such Underpayment
shall not be paid later than the end of the calendar year following the calendar year
in which the Participant remitted the related taxes. In the event of an Overpayment,
the amount of such Overpayment shall constitute a loan by the Company to the
Participant, payable not later than five (5) business days after the amount of such
Overpayment is subsequently determined (together with interest at 120% of the rate
provided in Section 1274(b)(2)(B) of the Code). |
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4.4 |
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At the time that any payments are made under the Plan, the Company shall
provide the Participant with a written statement setting forth the manner in which such
payments were calculated and the basis for such calculations including, without
limitation, any opinions or other advice the Company has received from its counsel, the
Accountants or other advisors or consultants (and any such opinions or advice which are
in writing shall be attached to the statement). |
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5. |
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Termination Procedures. |
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5.1 |
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Notice of Termination. Any purported termination of a Participant’s employment
following a Change of Control (other than by reason of death) shall be communicated by
written Notice of Termination from one party to the other party in accordance with
Section 8 hereof. Further, no termination for Cause shall be effective without (a)
reasonable notice to the Participant setting forth the reasons for the Company’s
intention to terminate which specifies the particulars thereof in detail, and (b) in
the case of clause (ii) of the definition of Cause above, an opportunity for the
Participant to cure such Cause within twenty (20) days after receipt of such notice.
With respect to the Group I Participants, the Notice of Termination must include a
written statement that a majority of the entire membership of the Board has determined
that the Participant was guilty of the conduct constituting Cause. With respect to
Group II Participants and Group III
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Participants, the Notice of Termination must include a written statement by one of
the Participant’s direct or indirect supervisors that the supervisor has determined
that the Participant was guilty of conduct constituting Cause. |
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6. |
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No Mitigation. The Company agrees that, in order for a Participant to
be eligible to receive the payments and other benefits described herein, the
Participant is not required to seek other employment or to attempt in any way to reduce
any amounts payable to the Participant by the Company pursuant to Section 4 hereof.
Further, the amount of any payment or benefit provided for in the Plan shall not be
reduced by any compensation earned by the Participant as the result of employment by
another employer, by retirement benefits, by offset against any amount claimed to be
owed by the Participant to the Company, or otherwise. |
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7. |
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Successors; Binding Agreement. |
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(A) |
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The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume the Plan and all obligations
of the Company hereunder in the same manner and to the same extent that the Company
would be so obligated if no such succession had taken place. |
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(B) |
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This Plan shall inure to the benefit of and shall be binding upon the Company,
its successors and assigns, but without the prior written consent of the Participants
the Plan may not be assigned other than in connection with the merger or sale of any
part of the business and/or assets of the Company or similar transaction in which the
successor or assignee assumes (whether by operation of law or express assumption) all
obligations of the Company hereunder. |
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7.2 |
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This Plan shall inure to the benefit of and be enforceable by the Participant’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees, legatees or other beneficiaries. If a Participant shall die
while any amount would still be payable to such Participant hereunder (other than
amounts which, by their terms, terminate upon the death of the Participant) if such
Participant had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of the Plan to the executors, personal
representatives or administrators of such Participant’s estate. |
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8. |
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Notices. For the purpose of the Plan, notices and all other
communications provided for in the Plan shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, addressed, if to a Participant, to the address on
file with the Company and, if to the Company, to the address set forth below, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective only
upon actual receipt: |
One Amgen Center Drive
Thousand Oaks, California 91320-1789
Attention: Corporate Secretary
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9. |
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Claims Procedures; Expenses. |
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9.1 |
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The Participant’s assertion of a right to benefits under, in connection with,
or in any way related to the Plan constitutes Participant’s agreement to resolve
covered disputes against any person or entity pursuant to this Section 9. |
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9.2 |
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Claim for Benefits. A Participant may file with the Administration Committee a
written claim for benefits under the Plan. The Administration Committee shall, within
a reasonable time not to exceed ninety (90) days, unless special circumstances require
an extension of time of not more than an additional ninety (90) days (in which event a
Participant will be notified of the delay during the first ninety (90) day period),
provide adequate notice in writing to any Participant whose claim for benefits shall
have been denied, setting forth the following in a manner calculated to be understood
by the Participant: (i) the specific reason or reasons for the denial; (ii) specific
reference to the provision or provisions of the Plan on which the denial is based;
(iii) a description of any additional material or information required to perfect the
claim, and an explanation of why such material or information is necessary; and (iv)
information as to the steps to be taken in order that the denial of the claim may be
reviewed, including a statement of the Participant’s right to bring an action under
Section 502(a) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) following an adverse determination of the claim. |
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9.3 |
|
Review of Claims. If a Participant’s claim has been denied and the Participant
wishes to submit a request for a review of such claim, the Participant must follow the
claims review procedure below: |
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(A) |
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Upon the denial of a claim for benefits, a Participant may file a request for
review of the claim, in writing, with the Administration Committee or any person or
persons to whom the Administration Committee has delegated its duties hereunder,
including a claims processor; |
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(B) |
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The Participant must file the claim for review not later than 60 days after the
Participant has received written notification of the denial of the claim; |
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(C) |
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The Participant has the right to review and obtain copies of all relevant
documents relating to the denial of the claim and to submit any issues and comments, in
writing, to the Administration Committee; |
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(D) |
|
If the claim is denied, the Administration Committee must provide the
Participant with written notice of this denial within 60 days after the Administration
Committee’s receipt of the Participant’s written claim for review. There may be times
when this 60-day period may be extended. This extension may only be made, however,
when there are special circumstances that are communicated to the Participant in
writing within the 60-day period. If there is an extension, a decision will be made as
soon as possible, but not later than 120 days after receipt by the Administration
Committee of the claim for review; and |
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(E) |
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The Administration Committee’s decision on the claim for review will be
communicated to the Participant in writing, and if the claim for review is denied in
whole or part, the decision will include: (i) the specific reason or reasons for the
denial; (ii) specific reference to the provision or provisions of the Plan on which the
denial is based; (iii) a statement that the Participant may receive, upon request and
free of charge, reasonable access to and copies of, all documents, records and other
information relevant to the claim; and (iv) a statement of the Participant’s right to
bring an action under Section 502(a) of ERISA. |
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9.4 |
|
Expenses, Legal Fees. The Company shall pay to the Participant all reasonable
expenses (including reasonable attorneys’ fees and legal expenses) incurred by the
Participant with respect to any dispute or controversy arising under or in connection
with the Plan (including, without limitation, all such fees and expenses, if any,
incurred in contesting or disputing any termination of the Participant’s employment or
in seeking to obtain or enforce any right or benefit provided by the Plan, or in
connection with any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Code to any payment or benefit provided hereunder)
if the Participant prevails on any material issue which is in dispute with respect to
such dispute or controversy. The Company shall make such payments no later than the
last day of the Participant’s taxable year immediately following the taxable year in
which the expenses are incurred. |
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10. |
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Confidentiality; Non-Solicitation. |
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10.1 |
|
Confidentiality. With respect to each Participant, during the Participant’s
Benefits Continuation Period, the Participant shall not directly or indirectly disclose
or make available to any person, firm, corporation, association or other entity for any
reason or purpose whatsoever, any Confidential Information. Upon termination of a
Participant’s employment with the Company, all Confidential Information in the
Participant’s possession that is in written or other tangible form (together with all
copies or duplicates thereof, including computer files) shall be returned to the
Company and shall not be retained by the Participant or furnished to any third party,
in any form except as provided herein; provided, however, that the Participant shall
not be obligated to treat as confidential, or return to the Company copies of any
Confidential Information that (i) was publicly known at the time of disclosure to the
Participant, (ii) becomes publicly known or available thereafter other than by any
means in violation of the Plan or any other duty owed to the Company by any person or
entity, or (iii) is lawfully disclosed to the Participant
|
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|
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by a third party. In addition, each Participant shall be subject to the Company’s
policies regarding proprietary information and inventions, as set forth in the
Proprietary Information Agreement. |
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10.2 |
|
Non-Solicitation. In addition to each Participant’s obligations under the
Proprietary Information Agreement, during a Participant’s Benefits Continuation Period,
the Participant shall not, either on the Participant’s own account or jointly with or
as a manager, agent, officer, employee, consultant, partner, joint venturer, owner or
stockholder or otherwise on behalf of any other person, firm or corporation, directly
or indirectly solicit or attempt to solicit away from the Company any of its officers
or employees or offer employment to any person who is an officer or employee of the
Company; provided, however, that a general advertisement to which an employee of the
Company responds shall in no event be deemed to result in a breach of this Section
10.2. |
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10.3 |
|
Breach; Violation. In the event that a Participant breaches or violates any
provision of Section 10.1 or 10.2 hereof, the Participant shall thereupon forfeit any
right and interest of the Participant to receive payments or benefits hereunder, and
the Company shall thereupon have no further obligation to provide such payments or
benefits to the Participant hereunder. |
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10.4 |
|
Survival of Provisions. The provisions of this Section 10 shall survive the
termination or expiration of the applicable Participant’s employment with the Company
and shall be fully enforceable thereafter. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 10 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that state, it
is the intention of the parties that such restriction may be modified or amended by the
court to render it enforceable to the maximum extent permitted by the law of that
state. |
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11.1 |
|
No Waiver. No waiver by the Company or any Participant, as the case may be, at
any time of any breach by the other party of, or of any lack of compliance with, any
condition or provision of the Plan to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time. All other plans, policies and arrangements of the Company in which
the Participant participates during the term of the Plan shall be interpreted so as to
avoid the duplication of benefits paid hereunder. |
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11.2 |
|
No Right to Employment. Nothing contained in the Plan or any documents
relating to the Plan shall (i) confer upon any Participant any right to continue as a
Participant or in the employ of the Company or a subsidiary, (ii) constitute any
contract or agreement of employment, or (iii) interfere in any way with the at-will
nature of the Participant’s employment with the Company. |
14
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11.3 |
|
Termination and Amendment of Plan. The Company shall have the right to amend
(and to amend or cancel any amendments), or, subject to Section 2 hereof, terminate the
Plan at any time by resolution of the Board; provided, however, that after a Change of
Control, the Company may not terminate the Plan and no amendment to the Plan shall be
made which removes any Participant from participation in the Plan, which amends
subsection (W), (X) or (Y) of Section 1 hereof or which adversely affects a
Participant’s interests without the express written consent of the Participant(s) so
affected. Subject to Section 10.3 hereof, notwithstanding anything contained herein to
the contrary, all obligations accrued by Participants prior to any termination of the
Plan must be satisfied in full in accordance with the terms hereof. |
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11.4 |
|
Benefits not Assignable. Except as otherwise provided herein or by law, no
right or interest of any Participant under the Plan shall be assignable or
transferable, in whole or in part, either directly or by operation of law or otherwise,
including, without limitation, by execution, levy, garnishment, attachment, pledge or
in any manner; no attempted assignment or transfer thereof shall be effective; and no
right or interest of any Participant under the Plan shall be liable for, or subject to,
any obligation or liability of such Participant. When a payment is due under the Plan
to a Participant who is unable to care for his or her affairs, payment may be made
directly to his or her legal guardian or personal representative. |
| |
11.5 |
|
Tax Withholding. The Company shall withhold from any payments made to a
Participant under this Plan all federal, state and local income, employment and other
taxes that the Company reasonably determines to be required to be withheld by the
Company in connection with such payments, in amounts and in a manner to be determined
in the sole discretion of the Company. Except to the extent specifically provided
within this Plan or any separate written agreement between a Participant and the
Company, a Participant shall be solely responsible for the satisfaction of any taxes
with respect to the benefits payable to the Participant under this Plan (including, but
not limited to, employment taxes imposed on employees and additional taxes on
nonqualified deferred compensation). |
| |
(A) |
|
Generally. Although the Company intends and expects that the Plan and its
payments and benefits will not give rise to taxes imposed under Section 409A of the
Code, neither the Company, nor its employees, directors, or agents shall have any
obligation to mitigate or to hold any Participant harmless from any or all of such
taxes. |
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(B) |
|
Section 409A Six-Month Delayed Payment Rule. If any payments or benefits
that become payable under this Plan on account of the Participant’s termination of
employment constitute a deferral of compensation under Code Section 409A, such
payments or benefits will be provided when the Participant incurs a “separation from
service” within the meaning of Treasury Regulation § 1.409A-1(h) or successor
provision (“Separation from Service”). If, at the time of the
|
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Participant’s Separation from Service, the Participant is a “specified employee”
(within the meaning of Section 409A of the Code and Treasury Regulation Section
1.409A-1(i) or successor provision), the Company will not pay or provide any
“Specified Benefits” (as defined herein) during the six-month period beginning with
the date of the Participant’s Separation from Service (the “409A Suspension
Period”). In the event of a Participant’s death, however, the Specified Benefits
shall be paid to the Participant’s Beneficiary without regard to the 409A Suspension
Period. For purposes of this Plan, “Specified Benefits” are any payments or
benefits that would be subject to Section 409A additional taxes if the Company were
to pay them, pursuant to this Plan, on account of the Participant’s “separation from
service.” Within 14 calendar days after the end of the 409A Suspension Period, the
Participant shall be paid a lump-sum payment in cash equal to any Specified Benefits
delayed during the 409A Suspension Period. |
| |
11.7 |
|
California Law. This Plan shall be construed, interpreted and the rights of
the parties determined in accordance with the laws of the State of California, to the
extent not preempted by federal law, which shall otherwise control. |
| |
11.8 |
|
Validity. The invalidity or unenforceability of any provision of the Plan
shall not affect the validity or enforceability of any other provision of the Plan,
which shall remain in full force and effect. If the Plan shall for any reason be or
become unenforceable by either party, the Plan shall thereupon terminate and become
unenforceable by the other party as well. |
16
ANNEX A
AMGEN INC. CHANGE OF CONTROL SEVERANCE PLAN
SUBSIDIARIES EXCLUDED FROM THE DEFINITION “COVERED SUBSIDIARIES”
Effective March 2, 2011, the following designated Subsidiaries shall be excluded from the
definition “Covered Subsidiaries” in the Amgen Inc. Change of Control Severance Plan (the “Plan”)
and such designation shall remain in effect until modified by the Administration Committee as
defined in the Plan:
NONE