Amendment and Restatement of Retirement and Savings Plan

EX-10.1 2 dex101.htm AMENDMENT AND RESTATEMENT OF RETIREMENT AND SAVINGS PLAN Amendment and Restatement of Retirement and Savings Plan

Exhibit 10.1

AMGEN RETIREMENT

AND SAVINGS PLAN

(As Amended and Restated Effective January 1, 2006)

TABLE OF CONTENTS


		Page
ARTICLE 1.	INTRODUCTION AND PLAN HISTORY	1
ARTICLE 2.	DEFINITIONS	1
2.1	“Accounts”	1
2.2	“Affiliated Group”	1
2.3	“Alternate Payee”	1
2.4	“Annual Additions”	1
2.5	“Annual Deferral Limit”	1
2.6	“Beneficiary”	1
2.7	“Board”	1
2.8	“Break in Service”	2
2.9	“Catch-up Contribution”	2
2.10	“Code”	2
2.11	“Company”	2
2.12	“Company Contributions”	2
2.13	“Company Stock”	2
2.14	“Company Stock Fund”	2
2.15	“Compensation”	2
2.16	“Compensation Limitation”	3
2.17	“Disability”	3
2.18	“Eligible Employee”	3
2.19	“Employee”	3
2.20	“Employee Contributions”	4
2.21	“ERISA”	4
2.22	“Excess Deferrals”	4
2.23	“Exchange Act”	4
2.24	“Five-Year Break in Service”	4
2.25	“Forfeiture”	4
2.26	“Fund” or “Investment Fund”	4
2.27	“Hardship Withdrawal”	4
2.28	“Highly Compensated Employee”	4
2.29	“Hour of Service”	4
2.30	“Matching Contribution”	5
2.31	“Nonelective Contribution”	5
2.32	“Normal Retirement Age”	5
2.33	“Participant”	5
2.34	“Participant Elected Contribution”	5
2.35	“Participating Company”	5
2.36	“Payroll”	5
2.37	“Plan”	6
2.38	“Plan Benefit”	6
2.39	“Plan Year”	6
2.40	“QDRO”	6
2.41	“Rollover Contribution”	6

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TABLE OF CONTENTS

(continued)


		Page
2.42	“Salary Deferral Agreement”	6
2.43	“Section 415 Compensation”	6
2.44	“Section 415 Employer Group”	6
2.45	“Top-Paid Group”	6
2.46	“Trust Agreement”	6
2.47	“Trustee”	6
2.48	“Trust Fund”	6
2.49	“Valuation Date”	6
2.50	“Year of Service”	6
ARTICLE 3.	ELIGIBILITY AND PARTICIPATION	7
3.1	Eligibility to Participate	7
3.2	Commencement of Participation	7
3.3	Eligible Employee	7
3.4	Suspension of Membership	8
3.5	Termination of Membership	8
3.6	Military Service	8
ARTICLE 4.	EMPLOYEE CONTRIBUTIONS	8
4.1	Participant Elected Contributions	8
4.2	Suspension, Change and Resumption of Participant Elected Contributions	9
4.3	Contributions to the Trustee	9
4.4	Limits on Participant Elected Contributions	9
4.5	Rollover Contributions	10
4.6	Catch-up Contributions	10
ARTICLE 5.	COMPANY CONTRIBUTIONS	11
5.1	Matching Contributions	11
5.2	Nonelective Contributions	11
5.3	Investment of Company Contributions	13
5.4	Limits on Company Contributions	13
ARTICLE 6.	INVESTMENTS AND PARTICIPANTS’ ACCOUNTS	14
6.1	Investment Funds	14
6.2	Investment of Contributions	14
6.3	Participant Elected Contributions Account	14
6.4	Catch-Up Contributions Account	14
6.5	Rollover Contributions Account	14
6.6	Matching Contributions Account	15
6.7	Nonelective Contributions Account	15
6.8	Qualified Nonelective Contributions Account	15
6.9	Qualified Matching Contributions Account	15
6.10	Transfers Among Investment Funds	15
6.11	Allocation of Investment Income	16
6.12	Account Statements	16
ARTICLE 7.	VESTING OF PARTICIPANTS’ ACCOUNTS	16
7.1	100 Percent Vesting	16

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TABLE OF CONTENTS

(continued)


		Page
7.2	Forfeitures	16
7.3	Determination of Account Balance	17
7.4	Lost Participant or Beneficiary	17
ARTICLE 8.	DISTRIBUTION OF PLAN BENEFIT	17
8.1	General Rule	17
8.2	Events Permitting Distribution	17
8.3	Time of Distribution	18
8.4	Amount of Plan Benefit	18
8.5	Latest Time of Distribution	18
8.6	Forms of Distribution	19
8.7	Time of Distribution of Death Benefit	19
8.8	Small Benefits: Lump Sum	20
8.9	Direct Rollovers	21
8.10	Beneficiary	21
8.11	Spousal Consent Needed to Name a Nonspouse Beneficiary	22
8.12	Determination of Marital Status	22
8.13	Incompetency	22
ARTICLE 9.	DISTRIBUTION TO AN ALTERNATE PAYEE UNDER A QDRO; FREEZING PARTICIPANT ACCOUNTS	23
9.1	Immediate Distribution	23
9.2	Alternate Payee Accounts	23
9.3	Freezing Participant Accounts	23
9.4	Death of Alternate Payee	23
9.5	Distributions From Alternate Payee Accounts	24
9.6	Expenses Related to QDRO	24
ARTICLE 10.	LOANS	24
10.1	Amount of Loan	24
10.2	Terms of Loans	24
10.3	Company Consent	25
10.4	Source of Loans	26
10.5	Disbursement of Loans	26
10.6	Loan Fees	26
10.7	Valuation Date	26
10.8	Loan Payments and Defaults	26
ARTICLE 11.	WITHDRAWALS WHILE EMPLOYED	26
11.1	Age 59¹/2 and Disability Withdrawals	26
11.2	Hardship Withdrawals	26
11.3	Amount of a Hardship Withdrawal	27
11.4	Consequences of a Hardship Withdrawal	27
11.5	Valuation Date	28
11.6	Source of Withdrawals	28
11.7	Payment of Withdrawals	28
11.8	Limitations on Withdrawals	28

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TABLE OF CONTENTS

(continued)


		Page
ARTICLE 12.	HIGHLY COMPENSATED EMPLOYEE DEFINITION	28
12.1	Determining the Highly Compensated Employee Group	28
12.2	“Highly Compensated Former Employee”	28
12.3	“Nonhighly Compensated Employee”	29
12.4	“Top-Paid Group”	29
ARTICLE 13.	CONTRIBUTION LIMITATIONS	29
13.1	Return of Excess Deferrals	29
13.2	Actual Deferral Percentage and Actual Contribution Percentage Limitations	30
13.3	Limitation on Contributions	30
13.4	Return of Participant Elected Contributions	30
13.5	Excess Company Contributions	30
13.6	Prospective Limitations on Participant Elected Contributions	31
13.7	Special Definitions Used in Article 13	31
ARTICLE 14.	THE TRUST FUND AND PLAN INVESTMENTS	33
14.1	Control and Management of Plan Assets	33
14.2	Trustee Duties	33
14.3	Independent Qualified Public Accountant	33
14.4	Administrative Expenses	33
14.5	Benefit Payments	33
ARTICLE 15.	ADMINISTRATION AND OPERATION OF THE PLAN	34
15.1	Plan Administration	34
15.2	Employment of Advisers	35
15.3	Service in Several Fiduciary Capacities	36
ARTICLE 16.	CLAIMS AND REVIEW PROCEDURES	36
16.1	Applications for Benefits	36
16.2	Denial of Applications	36
16.3	Requests for Review	36
16.4	Decisions on Review	37
16.5	Rules and Procedures	37
16.6	Exhaustion of Administrative Remedies	37
ARTICLE 17.	AMENDMENT AND TERMINATION	37
17.1	Right To Amend or Terminate	37
17.2	Protection of Participants	37
17.3	Effect of Termination	38
17.4	Allocation of Trust Fund Upon Termination	38
17.5	Partial Termination	38
ARTICLE 18.	MISCELLANEOUS PROVISIONS	38
18.1	Plan Mergers	38
18.2	No Assignment of Property Rights	38
18.3	No Employment Rights	39
18.4	Choice of Law	39
18.5	Voting of Company Stock	39

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TABLE OF CONTENTS

(continued)


		Page
18.6	Tender Offers	39
18.7	Plan Appendices	40
ARTICLE 19.	SPECIAL TOP-HEAVY PROVISIONS	40
19.1	Determination of Top-Heavy Status	40
19.2	Minimum Allocations	40
19.3	Special Definitions	40
19.4	Top-Heavy Vesting Rules	41
ARTICLE 20.	EXECUTION	41

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AMGEN RETIREMENT AND SAVINGS PLAN

(As Amended and Restated Effective January 1, 2006)

ARTICLE 1. INTRODUCTION AND PLAN HISTORY

The Plan was adopted effective as of April 1, 1985 and was last amended and restated effective as of January 1, 2003. The following provisions constitute an amendment and restatement of the Plan, effective January 1, 2006, to reflect previously adopted amendments and to make other changes required by law. Certain provisions may be effective at other times, as specified herein. The Plan is intended to qualify under Sections 401(a) and 401(k) and related Sections of the Code, and under Section 407(d)(3)(A) of ERISA. The Plan is subject to amendment or termination at any time, including (without limitation) amendments required to meet regulations and rules issued by the Secretary of the Treasury or his or her delegate or the Secretary of Labor. Certain capitalized terms used in the text of the Plan are defined in Article 2 in alphabetical order.

ARTICLE 2. DEFINITIONS

2.1

“Accounts” means the separate accounts maintained for each Participant as a part of the Trust Fund. Each Participant’s Accounts are credited with the Participant’s Employee Contributions, his or her share of Company Contributions and Forfeitures and any income, gains, expenses and losses accruing on amounts previously credited to the Accounts.

2.2

“Affiliated Group” means the Company and any entity related to the Company under Sections 414(b), (c), (m) or (o) of the Code. In addition, the term “Affiliated Group” includes any other entity that the Company has designated in writing as a member of the Affiliated Group for purposes of the Plan. An entity shall be considered a member of the Affiliated Group only with respect to periods for which this designation is in effect or during which the relationship described in the first sentence of this Section exists. An “Affiliate” is a member of the Affiliated Group.

2.3	“Alternate Payee” means a spouse, former spouse, child or other dependent of a Participant who is recognized by a domestic relations order as having a right to receive all or a portion of the Participant’s Plan Benefit.

2.4	“Annual Additions” which is a term used in specifying certain limitations on Plan contributions, is defined in Section 13.7.

2.5	“Annual Deferral Limit” which is a term used in specifying certain limitations on Plan contributions, is defined in Section 13.7.

2.6	“Beneficiary” means the person or persons entitled to receive a Participant’s Plan Benefit after the Participant’s death, as provided in Section 8.10.

2.7	“Board” means the Board of Directors of the Company, as constituted from time to time.

2.8

“Break in Service” means any Plan Year during which the Participant completes less than 501 Hours of Service. Solely for the purpose of determining whether a Break in Service has occurred, an Employee who is absent from work by virtue of (a) the Employee’s pregnancy; (b) the birth of the Employee’s child; (c) the placement of a child with the employee by adoption; (d) the caring for any such child for a period of up to one year immediately following such birth or placement; (e) Disability; (f) service in the armed forces of the United States during a period (including a post-discharge period) that entitles the Employee to reemployment rights guaranteed by law or (g) a leave of absence taken under the terms of the federal Family Medical Leave Act or applicable state family and medical leave act, shall be credited with up to 501 additional Hours of Service. Such additional Hours of Service in such period of absence shall be based on his or her regular work schedule immediately prior to such period; provided, however, that such additional Hours of Service shall be credited during the Plan Year in which the absence from work begins only if they would prevent a Break in Service from occurring for that year. In all other cases, the additional Hours of Service shall be credited during the immediately following Plan Year.

2.9	“Catch-up Contribution” means the amount contributed to the Plan by an eligible Participant pursuant to Section 4.6.

2.10	“Code” means the Internal Revenue Code of 1986, as amended from time to time.

2.11	“Company” means Amgen Inc., a Delaware corporation and excludes any disregarded entity pursuant Treasury Regulations Section 301.7701-3, unless such disregarded entity is designated as a Participating Company.

2.12	“Company Contributions” means Matching Contributions and Nonelective Contributions.

2.13	“Company Stock” means shares of common stock issued by the Company.

2.14	“Company Stock Fund” means an Investment Fund primarily invested in Company Stock.

2.15

“Compensation” is the term generally used under the Plan to describe the amount with respect to which Plan contributions are made and means an Eligible Employee’s 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 member of the Affiliated Group 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 insurance premiums and 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.

“Compensation” shall also include: (a) any amount the Participant has elected to defer under this Plan or any cafeteria plan under Section 125 of the Code; and (b) payments to an individual who does not currently perform services for any member of the Affiliated

Group by reason of qualified military service (as that term is used in Code Section 414(u)(1)) to the extent those payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the Affiliated Group rather than entering qualified military service.

“Compensation” shall not include: (x) any Company Contributions to this Plan or any other employee benefit plan for or on account of the Employee, except as otherwise provided in the preceding sentence; (y) the items described in Treasury Regulation Section 1.415-2(d)(3) (or any successor thereto), 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 Code) and amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; or (z) amounts in excess of the Compensation Limitation.

2.16	“Compensation Limitation” means the limitation in effect under Section 401(a)(17) of the Code for the Plan Year.

2.17

“Disability” means that the Participant is determined, under Title II or XVI of the Social Security Act, to have been disabled prior to his or her termination of employment. The Participant must submit evidence of the Social Security Administration’s determination of disability to the Company prior to any Disability distribution of the Participant’s Accounts.

2.18	“Eligible Employee” means an Employee described in Section 3.3.

2.19

“Employee” means an individual who (a) is on the Payroll of a member of the Affiliated Group or (b) is a “leased employee” with respect to a member of the Affiliated Group. “Employee” shall not include a nonresident alien who receives no earned income (within the meaning of Section 911(b) of the Code) from a member of the Affiliated Group that constitutes income from sources within the United States (within the meaning of Section 861(a)(3) of the Code).

The term “leased employee” means any person (other than an employee of the recipient) who pursuant to an agreement between the recipient and any other person (“leasing organization”) has performed services for the recipient (or for the recipient and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are performed under primary direction or control by the recipient. Contributions or benefits provided a leased employee by the leasing organization which are attributable to services performed for the recipient employer shall be treated as provided by the recipient employer. A leased employee shall not be considered an employee of the recipient if: (a) such employee is covered by a money purchase pension plan providing: (1) a nonintegrated employer contribution rate of at least 10 percent of compensation, as defined in Section 415(c)(3) of the Code, but including amounts contributed pursuant to a salary reduction agreement which are excludable from the employee’s gross income under Section 125,

Section 402(e)(3), Section 402(h)(1)(B) or Section 403(b) of the Code, (2) immediate participation, and (3) full and immediate vesting; and (b) leased employees do not constitute more than 20 percent of the recipient’s nonhighly compensated work force.

2.20	“Employee Contributions” means Participant Elected Contributions, Catch-up Contributions and Rollover Contributions.

2.21	“ERISA” means the Employee Retirement Income Security Act of 1974 (P.L. 93-406), as amended.

2.22	“Excess Deferrals” which is a term used in specifying certain limitations on Plan contributions, is defined in Section 13.7.

2.23	“Exchange Act” means the Securities Exchange Act of 1934, as amended, and regulations promulgated thereunder.

2.24	“Five-Year Break in Service” means five or more consecutive one-year Breaks in Service.

2.25	“Forfeiture” is defined in Section 7.2.

2.26	“Fund” or “Investment Fund” means a separate fund in which contributions to the Plan are invested in accordance with Article 6.

2.27	“Hardship Withdrawal” is a partial distribution of a Participant’s Account made while he or she is an Employee and in the limited circumstances described in Section 11.2.

2.28	“Highly Compensated Employee” is defined in Article 12.

2.29	“Hour of Service” means:

(a)

Each hour for which an Employee is directly or indirectly paid, or entitled to payment, by a member of the Affiliated Group for the performance of services;

(b)

Each hour for which an Employee is directly or indirectly paid, or entitled to payment, by a member of the Affiliated Group on account of a period of time during which no services are performed (without regard to whether the employment relationship between the Employee and the member of the Affiliated Group has terminated) due to vacation, holiday, illness, incapacity, disability, layoff, jury duty, military duty or leave of absence with pay; and

(c)

Each hour for which an Employee is directly or indirectly paid, or entitled to payment of an amount as back pay (without regard to mitigation of damages) either awarded or agreed to by a member of the Affiliated Group.

(d)

The foregoing notwithstanding:

(1)

No more than 501 Hours of Service shall be credited to an Employee under Subsection (b) or (c) above on account of any single continuous period of time during which no services are performed;

(2)

An hour for which an Employee is directly or indirectly paid or entitled to payment by a member of the Affiliated Group on account of a period during which no services are performed shall not constitute an Hour of Service hereunder if such payment is made or due under a plan maintained solely for the purpose of complying with applicable workers’ compensation, unemployment compensation or disability insurance laws;

(3)

Hours of Service shall not be credited for payments that solely reimburse an Employee for medical or medically related expenses;

(4)

The same Hour of Service shall not be credited to an Employee both under Subsection (a) or (b) and under Subsection (c); and

(5)

The computation period to which Hours of Service determined under Subsection (b) or (c) are to be credited shall be determined under applicable federal law and regulations, including, without limitation, Department of Labor Regulation Sections 2530.200b-2(b), (c) and (d).

The Company shall determine the number of Hours of Service, if any, to be credited to an Employee under the foregoing rules in a uniform and nondiscriminatory manner and in accordance with applicable federal laws and regulations, including, without limitation, Department of Labor Regulation Section 2530.200b-3.

2.30	“Matching Contribution” means the amount contributed to the Plan by a Participating Employer pursuant to Section 5.1.

2.31	“Nonelective Contribution” means the amount contributed to the Plan by a Participating Employer pursuant to Section 5.2.

2.32	“Normal Retirement Age” means the date on which a Participant attains age 65.

2.33	“Participant” means any person who elects to participate in the Plan as provided in Article 3.

2.34	“Participant Elected Contribution” means the amount contributed to the Plan by a Participant pursuant to Section 4.1.

2.35	“Participating Company” means the Company, and any other member of the Affiliated Group that the Company has designated in writing as a Participating Company, as set forth on Appendix A.

2.36	“Payroll” means the system used by an entity to pay those individuals it regards as its employees for their services and to withhold federal income and employment taxes from

the compensation it pays to such employees. “Payroll” does not include any system the entity uses to pay individuals whom it does not regard as its employees and for whom it does not actually withhold federal income and employment taxes (including, but not limited to, individuals it regards as independent contractors, consultants or employees of temporary employment agencies).

2.37	“Plan” means the Amgen Retirement and Savings Plan, as amended from time to time.

2.38	“Plan Benefit” means the Participant’s Accounts under the Plan, to the extent vested.

2.39	“Plan Year” means the calendar year.

2.40	“QDRO” means a qualified domestic relations order (as defined in Section 414(p) of the Code).

2.41	“Rollover Contribution” means an amount contributed to the Plan by an Eligible Employee pursuant to Section 4.5.

2.42	“Salary Deferral Agreement” means the agreement between the Participating Company and an Employee to reduce the Employee’s Compensation as provided for in Article 4.

2.43	“Section 415 Compensation” which is a term used in specifying certain limitations on Plan contributions, is defined in Section 13.7.

2.44	“Section 415 Employer Group” which is a term used in specifying certain limitations on Plan contributions, is defined in Section 13.7.

2.45	“Top-Paid Group” which is used in the definition of the term “Highly Compensated Employee,” is defined in Section 12.4.

2.46	“Trust Agreement” means the trust agreement entered into pursuant to the Plan by the Company and the Trustee, as amended from time to time.

2.47	“Trustee” means the trustee or trustees appointed by the Company pursuant to the Plan to hold the assets of the Plan in trust, and any successor trustee(s) so appointed.

2.48	“Trust Fund”means the trust fund consisting of the assets of the Plan and maintained by the Trustee pursuant to the Plan and the Trust Agreement.

2.49	“Valuation Date” means the date on which the assets of the Plan are valued, determined in accordance with the Trust Agreement.

2.50	“Year of Service” means, for purposes of vesting prior to January 1, 2002, each Plan Year or portion thereof during which an Employee was credited with at least 1,000 Hours of Service.

ARTICLE 3. ELIGIBILITY AND PARTICIPATION

3.1	Eligibility to Participate. An individual hired or rehired as an Employee shall be eligible to become a Participant on the date he or she becomes an Eligible Employee or on any subsequent date.