As filed with the Securities and Exchange Commission on May 29, 1998
Registration No. 333-......
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
AMGEN INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-3540776
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
____________________
ONE AMGEN CENTER DRIVE
THOUSAND OAKS, CALIFORNIA 91320-1789
(805) 447-1000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________________
GEORGE A. VANDEMAN, ESQ.
Senior Vice President, General Counsel and Secretary
ONE AMGEN CENTER DRIVE
THOUSAND OAKS, CALIFORNIA 91320-1789
(805) 447-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________________
Copies to:
ALAN C. MENDELSON, ESQ.
Cooley Godward LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306-2155
(650) 843-5000
_____________________
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
_____________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the Securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE AGGREGATE OFFERING REGISTRATION
PRICE (1) FEE
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $.0001 par value.......... 1,500,000 $51.85 $77,776,397.50 $22,945
- ------------------------------------------------------------------------------------------------------------------------
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457 under the Securities Act of
1933. The price per share and aggregate offering price are based upon (i)
the exercise prices of outstanding options to purchase 927,250 shares of
Common Stock and (ii) with respect to 572,750 shares of Common Stock, the
average of the high and low prices of Registrant's Common Stock on May 27,
1998, as reported on the Nasdaq National Market.
================================================================================
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AS OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 29, 1998
PROSPECTUS
Amgen Inc.
1,500,000 SHARES OF COMMON STOCK
This Prospectus relates to up to 1,500,000 shares of Common Stock, par value
$.0001 per share (the "Shares"), of Amgen Inc. ("Amgen" or the "Company"), that
may be sold by the Company from time to time upon the exercise of non-qualified
stock options (the "Options") granted under the Company's 1997 Special Non-
Officer Equity Incentive Plan, Amended and Restated 1991 Equity Incentive Plan,
Amended and Restated 1988 Stock Option Plan and Amended and Restated 1987
Director Stock Option Plan (each a "Plan" and collectively, the "Plans"). The
Shares will be sold to trusts established for the benefit of certain
participants under the Plans and members of their immediate families (the
"Trusts") and to former spouses of Plan participants who receive Options
pursuant to domestic relations orders (the "Former Spouses").
The Company will sell the Shares in accordance with the terms of the Plans and
the Options. The exercise price of each Option has been or will be determined
by the Board of Directors of the Company, or a Committee thereof, in each case
in accordance with the applicable Plan. Certain Trusts may be deemed to be
affiliates of the Company. Such affiliates may resell Shares only pursuant to
an effective registration statement covering such resale or pursuant to an
exemption from such registration, including the exemption provided by Rule 144
under the Securities Act of 1933, as amended.
The Common Stock is traded on the Nasdaq National Market under the symbol AMGN.
On May 28, 1998, the closing price of the Common Stock was $60.69 per share.
The Company will receive all of the proceeds from the sale of the Shares hereby.
No underwriting discounts or commissions will be paid by the Company in
connection with this offering. Estimated expenses payable by the Company in
connection with this Offering are $60,000. See "Plan of Distribution."
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY INVESTORS IN
EVALUATING AN INVESTMENT IN THE SECURITIES OFFERED HEREBY, SEE "RISK FACTORS"
COMMENCING ON PAGE 4.
______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
____________, 1998
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION............................................. 2
INCORPORATION OF DOCUMENTS BY REFERENCE........................... 2
RISK FACTORS...................................................... 3
THE COMPANY....................................................... 5
USE OF PROCEEDS................................................... 5
DETERMINATION OF OFFERING PRICE................................... 5
DESCRIPTION OF THE PLANS AND THE OPTIONS.......................... 5
PLAN OF DISTRIBUTION.............................................. 5
LEGAL MATTERS..................................................... 5
EXPERTS........................................................... 5
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company with the Commission can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional Offices
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and Seven World Trade Center, Suite 1300, New York, New York
10048, and copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the Commission at
http://www.sec.gov. The common stock, par value $.0001 per share, of the Company
is listed on The Nasdaq National Market. Reports, proxy information and other
information concerning the Company can also be inspected at the offices of
Nasdaq at 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of a Registration Statement on Form S-3 filed
by the Company with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). This Prospectus omits certain of the information
contained in the Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Company, the Plan and the Options. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission (File
No. 0-12477) and are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K, as amended by Form 10-K/A, for
the year ended December 31, 1997;
(2) the Company's Quarterly Report on Form 10-Q for the three months ended
March 31, 1998; and
(3) Description of the Company's Common Stock, contractual contingent payment
rights and preferred share rights plan contained in the Registration
Statements on Form 8-A filed with the SEC on September 7, 1983 and April 1,
1993, and the Form 8-K filed with the SEC on February 28, 1997, respectively.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, subsequent to the date of this Prospectus and prior
to the termination of the offering of the Shares, shall be deemed to be
incorporated by reference in this Prospectus and be a part hereof from the date
of filing of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, or in any subsequently filed document that also is
or is deemed to be incorporated by reference, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits, unless such exhibits are
specifically incorporated by reference in such documents) may be obtained
without charge upon request by persons (including beneficial owners) to whom
this Prospectus is delivered from the Manager of Investor Relations of the
Company, One Amgen Center Drive, Thousand Oaks, California 91320-1789 (telephone
number 805-499-5725, extension 3352).
2
RISK FACTORS
Amgen operates in a rapidly changing environment that involves a number of
risks, some of which are beyond the Company's control. The following risk
factors should be considered carefully in evaluating the Company and its
business prior to purchasing the Shares offered hereby.
Uncertainty of Product Development. The Company is pursuing, and intends to
continue, an aggressive product development program. Successful product
development in the biotechnology industry is highly uncertain, and only a small
minority of research and development programs ultimately result in the
commercialization of a product. Of the candidates that are commercialized, all
may not be commercially successful. Product candidates that appear promising in
the early phases of development may fail to reach the market for numerous
reasons, including, without limitation, results indicating lack of effectiveness
or harmful side effects in clinical or preclinical testing, failure to receive
necessary regulatory approvals, uneconomical manufacturing costs, the existence
of third party proprietary rights, failure to be cost effective in light of
existing therapeutics or other factors. There can be no assurance that the
Company will be able to produce future products that have commercial potential.
Additionally, success in preclinical and early clinical trials does not ensure
that large scale clinical trials will be successful. Clinical results are
frequently susceptible to varying interpretations which may delay, limit or
prevent further clinical development or regulatory approvals. The length of time
necessary to complete clinical trials and receive approval for product marketing
by regulatory authorities varies significantly by product and indication and is
often difficult to predict.
Uncertainty of Regulatory Approvals. The Company's research and development,
preclinical testing, clinical trials, facilities, manufacturing and marketing
of its products are subject to extensive regulation by numerous governmental
authorities in the U.S. and other countries. The success of the Company's
current products and future product candidates will depend in part upon
obtaining and maintaining regulatory approval to market products in approved
indications. Even if regulatory approval is obtained, a marketed product and its
manufacturer are subject to continued review. Later discovery of previously
unknown problems with a product or manufacturer may result in restrictions on
such product or manufacturer, including withdrawal of the product from the
market. Failure to obtain necessary approvals, or the restriction, suspension or
revocation of any approvals or the failure to comply with regulatory
requirements could have a material adverse effect on the Company.
Uncertain Availability of Third-Party Reimbursement. In both domestic and
foreign markets, sales of the Company's products are dependent in part on the
availability of reimbursement from third party payors such as governments and
private insurance plans. In certain foreign markets pricing and profitability
of prescription pharmaceuticals are subject to government controls. In the
United States, there has been, and the Company expects there to continue to be,
a number of state and federal proposals to implement price controls. In
addition, an increasing emphasis on managed care in the United States has and
will continue to increase the pressure on pharmaceutical pricing and usage.
Further, significant uncertainties exist as to the reimbursement status of
newly approved therapeutic products, and current reimbursement policies for
existing products may change. Changes in reimbursement or failure to obtain
reimbursement may reduce the demand for, or the price of, the Company's products
which could have a material adverse effect on the Company and its operating
results. Specifically, patients in the U.S. receiving EPOGEN(R) in connection
with treatment for end stage renal disease are covered primarily under medical
programs provided by the federal government. Therefore, EPOGEN(R) sales may be
affected by future changes in reimbursement rates or the basis for reimbursement
by the federal government. In 1997, the Health Care Finance Administration
instituted a reimbursement charge for EPOGEN(R) which has adversely affected
sales of EPOGEN(R). There can be no assurance that sales of the Company's other
products, or future products, will not be similarly affected.
Impact of Professional Guidelines. In addition to government agencies that
promulgate regulations and guidelines directly applicable to the Company and its
products, private health/science foundations and organizations involved in
various diseases may also publish, from time to time, guidelines or
recommendations to the healthcare and patient communities. These private
organizations may make recommendations that affect the usage of certain
therapies, drugs or procedures, including the Company's products. Such
recommendations may relate to such matters as usage, dosage, route of
administration and use of concomitant therapies. Recommendations or guidelines
that are followed by patients and healthcare providers and that result in, among
other things, decreased use of the Company's
3
products could have a material adverse effect on the Company. In addition, the
perception that such recommendations or guidelines will be followed could
adversely affect prevailing market prices for the Company's common stock.
Patent and License Uncertainties. The patent positions of pharmaceutical
and biotechnology companies can be highly uncertain and involve complex
legal, scientific and factual questions. To date there has emerged no
consistent policy regarding breadth of claims allowed in such companies'
patents. Accordingly, there can be no assurance that patents and patent
applications relating to the Company's products and technologies will not be
challenged, invalidated or circumvented or will afford protection against
competitors with similar products or technology. Patent disputes are frequent
and can preclude commercialization of products. The Company currently is, and
may in the future be, involved in patent litigation. Such litigation, if
decided adversely, could subject the Company to significant liabilities,
cause the Company to obtain third party licenses or cease using the technology
or product in dispute. However, there can be no assurance that such licenses
will be available on terms acceptable to the Company, or at all.
The Company is currently involved in arbitration proceedings with Ortho
Pharmaceutical Corporation, a subsidiary of Johnson & Johnson ("Johnson &
Johnson"), relating to a license granted by the Company to Johnson & Johnson for
sales of Epoetin alfa in the United States for all human uses except dialysis
and diagnostics. There can be no assurance this matter will be resolved in the
Company's favor.
Competition. Amgen operates in a highly competitive environment. The Company
competes with pharmaceutical and biotechnology companies, some of which may have
technical or competitive advantages, for, among other things, the development of
technologies and processes and the acquisition of technology from academic
institutions, government agencies and other private and public research
organizations. There can be no assurance that the Company will be able to
produce or acquire rights to products that have commercial potential. Even if
the Company achieves product commercialization, there can be no assurance that
one or more of the Company's competitors will not: (1) achieve product
commercialization earlier than the Company, (2) receive patent protection that
dominates or adversely affects the Company's activities or (3) have
significantly greater marketing capabilities.
Fluctuations in Operating Results; Volatility of Stock Price. The Company's
operating results may fluctuate from period to period for a number of
reasons. Historically the Company has planned its operating expenses, many of
which are relatively fixed in the short term, on the basis that revenues will
continue to grow. Accordingly, even a relatively small revenue shortfall may
cause a period's results to be below Company expectations. Such a revenue
shortfall could arise from any number of factors, including, without limitation,
lower than expected demand, changes in wholesaler buying patterns, changes in
product pricing strategies, increased competition from new and existing
products, fluctuations in foreign currency exchange rates, changes in
government or private reimbursement, transit interruptions, overall economic
conditions or natural disasters (including earthquakes). The Company also
experiences a degree of seasonality in its operating results.
The Company's stock price, like that of other biotechnology companies, is
subject to significant volatility. The stock price may be affected by
fluctuations in the Company's operating results as well as, among other things,
clinical trial results and other product development related announcements by
Amgen or its competitors, regulatory matters, announcements in the scientific
and research community, intellectual property and legal matters, changes in
reimbursement policies or medical practices or broader industry and market
trends unrelated to the Company's performance. In addition, if revenues or
earnings in any quarter fail to meet the investment community's expectations,
there could be an immediate adverse impact on the Company's stock price.
Risks of Rapid Growth. The Company has adopted an aggressive growth plan that
includes substantial and increased investments in research and development and
investments in facilities that will be required to support significant
growth. This plan carries with it a number of risks, including a higher level
of operating expenses, the difficulty of attracting and assimilating a large
number of new employees, and the complexities associated with managing a larger
and faster growing organization.
4
THE COMPANY
Amgen Inc. ("Amgen" or the "Company") is a global biotechnology company that
discovers, develops, manufactures and markets human therapeutics based on
advances in cellular and molecular biology. Amgen's principal executive offices
are located at One Amgen Center Drive, Thousand Oaks, California 91320-1789, and
its telephone number is (805) 447-1000.
USE OF PROCEEDS
The Company intends to use the proceeds from the sale of the Shares for general
corporate purposes.
DETERMINATION OF OFFERING PRICE
The Company will sell the Shares in accordance with the terms of the Plans and
the Options. The exercise price of each Option has been or will be determined
by the Board of Directors of the Company or a committee thereof.
DESCRIPTION OF THE PLANS AND THE OPTIONS
Information relating to the exercise of Options by the Trusts and the Former
Spouses and the related federal income tax consequences is described in the
written information previously furnished to participants in the Plans, including
the Trusts, and to the Former Spouses. Additional copies of such information
will be furnished without charge to the Trusts and the Former Spouses upon
written or oral request. The Plans are included as exhibits to the Registration
Statement of which this Prospectus forms a part.
PLAN OF DISTRIBUTION
The Shares are being registered to permit the sale by the Company of such Shares
to certain Trusts and Former Spouses upon the exercise of Options. The Company
has agreed, among other things, to bear all expenses in connection with the
Registration Statement and the sale of the Shares covered by this Prospectus.
The Shares may be sold from time to time in one or more transactions at offering
prices determined in accordance with the terms of the Options. Certain of the
Shares may be sold to affiliates of the Company. Such affiliates will not
resell such Shares except pursuant to an effective registration statement
covering such resale or pursuant to an exemption from such registration,
including, among others, the exemption provided by Rule 144 under the Securities
Act of 1933, as amended.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Shares will be passed
on for the Company by Cooley Godward LLP, Palo Alto, California.
EXPERTS
The consolidated financial statements of the Company as of December 31, 1996 and
1997 and for each of the three years in the period ended December 31, 1997
appearing in the Company's Annual Report on Form 10-K have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses, other than underwriting discounts and commissions, in
connection with this offering are as follows:
Securities and Exchange Commission Filing Fee......... $22,945
Printing Expenses..................................... $ 700
Accountants' Fees and Expenses........................ $ 9,500
Legal Fees and Expenses............................... $25,000
Miscellaneous Expenses................................ $ 1,855
Total................................................. $60,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, the Restated Certificate of
Incorporation, as amended, and the Amended and Restated Bylaws of the Company
contain provisions covering indemnification of corporate directors and officers
against certain liabilities and expenses incurred as a result of proceedings
involving such persons in their capacities as directors and officers, including
proceedings under the Securities Act of 1933, as amended (the "Securities Act")
and the Securities Exchange Act of 1934, as amended (the "Exchange Act").
The Company has authorized the entering into of indemnity contracts and provides
indemnity insurance pursuant to which officers and directors are indemnified or
insured against liability or loss under certain circumstances which may include
liability or related loss under the Securities Act and the Exchange Act.
ITEM 16. EXHIBITS
Exhibit
Number Description of Document.
5.1 Opinion of Cooley Godward LLP
10.1 Amended and Restated 1987 Directors Stock Option Plan (1)
10.2 Amended and Restated 1988 Stock Option Plan (2)
10.3 Amended and Restated 1991 Equity Incentive Plan (3)
10.4 1997 Special Non-Officer Equity Incentive Plan
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included with signature pages to this Registration
Statement).
_____________________________
(1) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 and incorporated herein by reference.
(2) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996 incorporated herein by reference.
(3) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and incorporated herein by reference.
II-1
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Thousand Oaks, State of California, on the 29th day
of May, 1998.
AMGEN INC.
/s/ George A. Vandeman
By: _________________________________
George A. Vandeman
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
We, the undersigned officers and directors of Amgen Inc., and each of us, do
hereby constitute and appoint each and any of Gordon M. Binder and George A.
Vandeman, our true and lawful attorney and agent, with full power of
substitution and resubstitution, to do any and all acts and things in our name
and behalf in any and all capacities and to execute any and all instruments for
us in our names, in connection with this Registration Statement or any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, including specifically, but without
limitation, power and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto; and we hereby ratify and confirm all that said attorney and
agent, or his substitute, shall do or cause to be done by virtue thereof.
II-3
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated:
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Gordon M. Binder Chairman of the Board, Chief Executive Officer May 29, 1998
- ------------------------------- and Director (Principal Executive Officer)
Gordon M. Binder
/s/ Kevin W. Sharer President, Chief Operating Officer and Director May 29, 1998
- -------------------------------
Kevin W. Sharer
/s/ Kathryn E. Falberg Vice President, Finance, Chief Financial Officer, May 29, 1998
- ------------------------------- and Chief Accounting Officer
Kathryn E. Falberg
/s/ William K. Bowes, Jr. Director May 29, 1998
- -------------------------------
William K. Bowes, Jr.
/s/ Franklin P. Johnson, Jr. Director May 29, 1998
- -------------------------------
Franklin P. Johnson, Jr.
/s/ Frederick W. Gluck Director May 29, 1998
- -------------------------------
Frederick W. Gluck
/s/ Steven Lazarus Director May 29, 1998
- -------------------------------
Steven Lazarus
/s/ Gilbert S. Omenn Director May 29, 1998
- -------------------------------
Gilbert S. Omenn
/s/ Judith C. Pelham Director May 29, 1998
- -------------------------------
Judith C. Pelham
II-4
Exhibit
Number Description of Document.
5.1 Opinion of Cooley Godward LLP
10.1 Amended and Restated 1987 Directors Stock Option Plan (1)
10.2 Amended and Restated 1988 Stock Option Plan (2)
10.3 Amended and Restated 1991 Equity Incentive Plan (3)
10.4 1997 Special Non-Officer Equity Incentive Plan
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included with signature pages to this Registration
Statement).
_____________________________
(1) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 and incorporated herein by reference.
(2) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996 incorporated herein by reference.
(3) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and incorporated herein by reference.
EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
May 29, 1998
Amgen Inc.
One Amgen Center Drive
Thousand Oaks, California 91320-1789
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Amgen Inc. (the "Company") of a Registration Statement on
Form S-3 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), covering an offering of up to 1,500,000 shares
(the "Shares") of common stock of the Company which may be issued upon exercise
of options granted under the Company's 1997 Special Non-Officer Equity Incentive
Plan, Amended and Restated 1991 Equity Incentive Plan, Amended and Restated 1988
Stock Option Plan and Amended and Restated 1987 Director Stock Option Plan (each
a "Plan" and collectively, the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Restated Certificate of Incorporation, as amended, and
Amended and Restated By-Laws, as amended, and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the terms of the Plans,
will be validly issued, fully paid and nonassessable.
Amgen Inc.
May 29, 1998
Page Two
We consent to the reference to our firm under the caption "Legal Matters" in the
Prospectus included on the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley Godward LLP
/s/ Andrea Vachss
Andrea Vachss
EXHIBIT 10.4
AMGEN INC.
1997 SPECIAL NON-OFFICER EQUITY INCENTIVE PLAN
1. PURPOSE.
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(a) The purpose of the 1997 Special Non-Officer Equity Incentive Plan
(the "Plan") is to provide a means by which non-Officer employees of and
consultants to Amgen Inc., a Delaware corporation (the "Company"), and employees
of and consultants to the Company's Affiliates, as defined in paragraph 1(b),
directly, or indirectly through Trusts, may be given an opportunity to benefit
from increases in value of the stock of the Company through the granting of (i)
stock options, (ii) stock bonuses, and (iii) rights to purchase restricted
stock, all as defined below.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
non-Officer employees of the Company and persons serving as consultants to the
Company, to secure and retain the services of persons capable of filling such
positions, and to provide incentives for such persons to exert maximum efforts
for the success of the Company.
(d) The Company intends that the rights issued under the Plan ("Stock
Awards") shall, in the discretion of the Board of Directors of the Company (the
"Board") or any committee to which responsibility for administration of the Plan
has been delegated pursuant to paragraph 2(c), be either (i) stock options
granted pursuant to Section 5 hereof, which option shall not qualify as
incentive stock options as that term is used in Section 422 of the Code
("Options") or (ii) stock bonuses or rights to purchase restricted stock granted
pursuant to Section 6 hereof.
(e) The word "Trust" as used in the Plan shall mean a trust created
for the benefit of the employee or consultant, his or her spouse, or members of
their immediate family. The word optionee shall mean the person to whom the
option is granted or the employee or consultant for whose benefit the option is
granted to a Trust, as the context shall require.
2. ADMINISTRATION.
--------------
(a) The Plan shall be administered by the Board unless and until the
Board delegates administration to a committee, as provided in paragraph 2(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Stock Awards; when and how Stock Awards shall be
granted; whether a Stock Award will be an Option, a stock bonus, a right to
purchase restricted stock, or a combination of the foregoing; the provisions of
each Stock Award granted (which need not be identical), including the time or
times when a person shall be permitted to purchase or receive stock pursuant to
a Stock Award; and the number of shares with respect to which Stock Awards shall
be granted to each such person.
(2) To construe and interpret the Plan and Stock Awards granted
under it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Stock Award, in a manner
and to the extent it shall deem necessary or expedient to make the Plan fully
effective.
(3) To amend the Plan as provided in Section 13.
(4) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee") which
members may be non-employee directors and outside directors. If administration
is delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board,
subject, however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. Notwithstanding
anything else in this paragraph 2(c) to the contrary, at any time the Board or
the Committee may delegate to a committee of one or more members of the Board
the authority to grant or amend options to all employees or consultants or any
portion or class thereof.
(d) The term "non-employee director" shall mean a member of the Board
who (i) is not currently an officer of the Company or a parent or subsidiary of
the Company (as defined in Rule 16a-1(f) promulgated by the Securities and
Exchange Commission under Section 16 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) or an employee of the Company or a parent or
subsidiary of the Company; (ii) does not receive compensation from the Company
or a parent or subsidiary of the Company for services rendered in any capacity
other than as a member of the Board (including a consultant) in an amount
required to be disclosed to the Company's stockholders under Rule 404 of
Regulation S-K promulgated by the Securities and Exchange Commission ("Rule
404"); (iii) does not possess an interest in any other transaction required to
be disclosed under Rule 404; or (iv) is not engaged in a business relationship
required to be disclosed under Rule 404, as all of these provisions are
interpreted by the Securities and Exchange Commission under Rule 16b-3
promulgated under the Exchange Act.
2
(e) The term "outside director," as used in this Plan, shall mean an
administrator of the Plan, whether a member of the Board or of any Committee to
which responsibility for administration of the Plan has been delegated pursuant
to paragraph 2(c), who is considered to be an "outside director" in accordance
with the rules, regulations or interpretations of Section 162(m) of the Code.
3. SHARES SUBJECT TO THE PLAN.
--------------------------
(a) Subject to the provisions of Section 10 relating to adjustments
upon changes in stock, the stock that may be issued pursuant to Stock Awards
granted under the Plan shall not exceed in the aggregate Twelve Million
(12,000,000) shares of the Company's $.0001 par value common stock (the "Common
Stock"). If any Stock Award granted under the Plan shall for any reason expire
or otherwise terminate without having been exercised in full, the Common Stock
not purchased under such Stock Award shall again become available for the Plan.
Shares repurchased by the Company pursuant to any repurchase rights reserved by
the Company pursuant to the Plan shall not be available for subsequent issuance
under the Plan.
(b) The Common Stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY.
-----------
(a) Stock Awards may be granted to non-Officer employees of the
Company, or employees of any Affiliate, or consultants to the Company or any
Affiliate, or to Trusts of any such employee or consultant. Notwithstanding any
other provisions in this Plan to the contrary, Officers of the Company shall not
be eligible to receive Stock Awards. The term "Officer" shall include any
natural person who is elected as a corporate officer of the Company by the
Board.
(b) Stock Awards shall be limited to a maximum of 500,000 shares of
Common Stock per person per calendar year.
5. TERMS OF OPTIONS.
----------------
An Option granted pursuant to this Section 5 shall be in such form and
shall contain such terms and conditions as the Board or the Committee shall deem
appropriate. The provisions of separate Options need not be identical, but each
Option shall include (through incorporation of provisions hereof by reference in
the Option or otherwise) the substance of each of the following provisions:
(a) No Option shall be exercisable after the expiration of ten (10)
years from the date it was granted.
(b) The exercise price of each Option shall be not less than one
hundred percent (100%) of the fair market value of the Common Stock subject to
the Option on the date the Option is granted.
3
(c) The purchase price of Common Stock acquired pursuant to an Option
shall be paid, to the extent permitted by applicable statutes and regulations,
either: (i) in cash at the time the Option is exercised; or (ii) at the
discretion of the Board or the Committee, either at the time of grant or
exercise of the Option (A) by delivery to the Company of shares of Common Stock
that have been held for the period required to avoid a charge to the Company's
reported earnings and valued at the fair market value of the shares of Common
Stock on the date of exercise, (B) according to a deferred payment or other
arrangement with the person to whom the Option is granted or to whom the Option
is transferred pursuant to paragraph 5(d), or (C) in any other form of legal
consideration that may be acceptable to the Board or the Committee in their
discretion, including but not limited to payment of the purchase price pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve
Board which results in the receipt of cash (or a check) by the Company before
Common Stock is issued or, prior to the issuance of Common Stock, receipt by the
Company of evidence from the person authorized to sell the underlying stock that
they have received irrevocable instructions from the option holder to pay to the
Company the aggregate exercise price of the Option from the sale proceeds.
In the case of any deferred payment arrangement, interest shall be
payable at least annually and shall be charged at not less than the minimum rate
of interest necessary to avoid the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement.
(d) An Option granted to a natural person shall be exercisable during
the lifetime of such person only by such person, provided that such person
during such person's lifetime may designate a Trust to be such person's
beneficiary, and such beneficiary shall, after the death of the person to whom
the Option was granted, have all the rights that such person had while living,
including the right to exercise the Option. In the absence of such designation,
after the death of the person to whom the Option is granted, the Option shall be
exercisable by the person or persons to whom the optionee's rights under such
Option pass by will or by the laws of descent and distribution.
(e) The total number of shares of Common Stock subject to an Option
may, but need not, be allotted in periodic installments (which may, but need
not, be equal). From time to time during each of such installment periods, the
Option may become exercisable ("vest") with respect to some or all of the shares
allotted to that period, and may be exercised with respect to some or all of the
shares allotted to such period and/or any prior period as to which the Option
was not fully exercised. During the remainder of the term of the Option (if its
term extends beyond the end of the installment periods), the Option may be
exercised from time to time with respect to any shares then remaining subject to
the Option. The provisions of this paragraph 5(e) are subject to any Option
provisions governing the minimum number of shares as to which an Option may be
exercised.
(f) The Company may require any optionee, or any person to whom an
Option is transferred under paragraph 5(d), as a condition of exercising any
such Option: (i) to give written assurances satisfactory to the Company as to
such person's knowledge and
4
experience in financial and business matters and/or the employment of such
person's purchaser representative who has such knowledge and experience in
financial and business matters, and that such person is capable of evaluating,
alone or together with the purchaser representative, the merits and risks of
exercising the Option; and (ii) to give written assurances satisfactory to the
Company stating that such person is acquiring the Common Stock subject to the
Option for such person's own account and not with any present intention of
selling or otherwise distributing the Common Stock. These requirements, and any
assurances given pursuant to such requirements, shall be inoperative if: (x) the
issuance of the shares upon the exercise of the Option has been registered under
a then currently effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"); or (y) as to any particular
requirement, a determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the then applicable
securities law.
(g) An Option shall terminate three (3) months after termination of
the optionee's employment or relationship as a consultant with the Company or an
Affiliate, unless: (i) such termination is due to the optionee's permanent and
total disability, within the meaning of Section 422(c)(6) of the Code, in which
case the Option may, but need not, provide that it may be exercised at any time
within one (1) year following such termination of employment or relationship as
a consultant; (ii) the optionee dies while in the employ of or while serving as
a consultant to the Company or an Affiliate, or within not more than three (3)
months after termination of such employment or relationship as a consultant, in
which case the Option may, but need not, provide that it may be exercised at any
time within eighteen (18) months following the death of the optionee by the
person or persons to whom the optionee's rights under such Option pass by will
or by the laws of descent and distribution; or (iii) the Option by its term
specifies either (A) that it shall terminate sooner than three (3) months after
termination of the optionee's employment or relationship as a consultant with
the Company or an Affiliate; or (B) that it may be exercised more than three (3)
months after termination of the optionee's employment or relationship as a
consultant with the Company or an Affiliate. Notwithstanding any other
provision in this Plan to the contrary, (x) no portion of an Option shall be
exercisable by any person to the extent that the Company's federal income tax
deduction with respect to the exercise of such portion of the Option would be
subject to disallowance pursuant to Section 162(m) of the Code, or any successor
thereto, and (y) subject to paragraph 5(a), if any portion of an Option is not
exercisable solely because of the preceding clause (x) on the date on which such
Option would otherwise terminate pursuant to the foregoing provisions of this
paragraph 5(g), such Option shall not terminate until three (3) months after
such Option thereafter ceases to be subject to the preceding clause (x).
Subject to the preceding sentence, any portion of an Option which is not
exercisable on the date on which an optionee's employment or relationship as a
consultant with the Company or an Affiliate ceases shall terminate immediately
on such date. This paragraph 5(g) shall not be construed to extend the term of
any Option or to permit anyone to exercise the Option after expiration of its
term, nor shall it be construed to increase the number of shares as to which any
Option is exercisable from the amount exercisable on the date of termination of
the optionee's employment or relationship as a consultant.
5
(h) The Option may, but need not, include a provision whereby the
optionee may elect at any time during the term of the optionee's employment or
relationship as a consultant with the Company or any Affiliate to exercise the
Option as to any part or all of the shares subject to the Option prior to the
stated vesting dates of the Option. Any shares so purchased from any unvested
installment or Option may be subject to a repurchase right in favor of the
Company or to any other restriction the Board or the Committee determines to be
appropriate.
(i) To the extent provided by the terms of an Option, each optionee
may satisfy any federal, state or local tax withholding obligation relating to
the exercise of such Option by any of the following means or by a combination of
such means: (i) tendering a cash payment; (ii) authorizing the Company to
withhold from the shares of the Common Stock otherwise issuable to the optionee
as a result of the exercise of the Option a number of shares having a fair
market value less than or equal to the amount of the withholding tax obligation;
or (iii) delivering to the Company owned and unencumbered shares of the Common
Stock having a fair market value less than or equal to the amount of the
withholding tax obligation.
6. TERMS OF STOCK BONUSES AND PURCHASES OF RESTRICTED STOCK.
--------------------------------------------------------
Each stock bonus or restricted stock purchase agreement shall be in
such form and shall contain such terms and conditions as the Board or the
Committee shall deem appropriate. The terms and conditions of stock bonus or
restricted stock purchase agreements may change from time to time, and the terms
and conditions of separate agreements need not be identical, but each stock
bonus or restricted stock purchase agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise)
the substance of each of the following provisions as appropriate:
(a) The purchase price under each stock purchase agreement shall be
such amount as the Board or Committee shall determine and designate in such
agreement. Notwithstanding the foregoing, the Board or the Committee may
determine that eligible participants in the Plan may be awarded stock pursuant
to a stock bonus agreement in consideration for past services actually rendered
to the Company or for its benefit.
(b) No rights under a stock bonus or restricted stock purchase
agreement shall be assignable by any participant under the Plan, either
voluntarily or by operation of law, except where such assignment is required by
law or expressly authorized by the terms of the applicable stock bonus or
restricted stock purchase agreement.
(c) The purchase price of stock acquired pursuant to a stock purchase
agreement shall be paid either: (i) in cash at the time of purchase; (ii) at
the discretion of the Board or the Committee, according to a deferred payment or
other arrangement with the person to whom the Common Stock is sold; or (iii) in
any other form of legal consideration that may be acceptable to the Board or the
Committee in their discretion; including but not limited to payment of the
purchase price pursuant to a program developed under Regulation T as
6
promulgated by the Federal Reserve Board which results in the receipt of cash
(or a check) by the Company before Common Stock is issued or the receipt of
irrevocable instruction to pay the aggregate exercise price of the Company from
the sales proceeds before Common Stock is issued. Notwithstanding the foregoing,
the Board or the Committee to which administration of the Plan has been
delegated may award Common Stock pursuant to a stock bonus agreement in
consideration for past services actually rendered to the Company or for its
benefit.
(d) Shares of Common Stock sold or awarded under the Plan may, but
need not, be subject to a repurchase option in favor of the Company in
accordance with a vesting schedule to be determined by the Board or the
Committee.
(e) In the event a person ceases to be an employee of or ceases to
serve as a consultant to the Company or an Affiliate, the Company may repurchase
or otherwise reacquire any or all of the shares of Common Stock held by that
person which have not vested as of the date of termination under the terms of
the stock bonus or restricted stock purchase agreement between the Company and
such person.
7. COVENANTS OF THE COMPANY.
------------------------
(a) During the terms of the Stock Awards granted under the Plan, the
Company shall keep available at all times the number of shares of Common Stock
required to satisfy such Stock Awards up to the number of shares of Common Stock
authorized under the Plan.
(b) The Company shall seek to obtain from each regulatory commission
or agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of Common Stock under the Stock Awards granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any Stock Award granted under
the Plan or any Common Stock issued or issuable pursuant to any such Stock
Award. If, after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority that counsel for the Company
deems necessary for the lawful issuance and sale of Common Stock under the Plan,
the Company shall be relieved from any liability for failure to issue and sell
Common Stock upon exercise of such Stock Awards unless and until such authority
is obtained.
8. USE OF PROCEEDS FROM COMMON STOCK.
---------------------------------
Proceeds from the sale of Common Stock pursuant to Stock Awards
granted under the Plan shall constitute general funds of the Company.
9. MISCELLANEOUS.
-------------
(a) The Board or Committee shall have the power to accelerate the time
during which a Stock Award may be exercised or the time during which a Stock
Award or any part thereof will vest, notwithstanding the provisions in the Stock
Award stating the time during
7
which it may be exercised or the time during which it will vest. Each Option
providing for vesting pursuant to paragraph 5(e) shall also provide that if the
employee's employment or a consultant's affiliation with the Company is
terminated by reason of death or disability (within the meaning of Title II or
XVI of the Social Security Act and as determined by the Social Security
Administration), the vesting schedule of Options granted to such employee or
consultant or to the Trusts of such employee or consultant shall be accelerated
as of the date of such termination by twelve months for each full year the
employee has been employed by or the consultant has been affiliated with the
Company.
(b) Neither an optionee nor any person to whom an Option is
transferred under the provisions of the Plan shall be deemed to be the holder
of, or to have any of the rights of a holder with respect to, any shares subject
to such Option unless and until such person has satisfied all requirements for
exercise of the Option pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Stock Award
granted pursuant thereto shall confer upon any eligible employee, consultant,
optionee or holder of Stock Awards under the Plan any right to continue in the
employ of the Company or any Affiliate or to continue acting as a consultant or
shall affect the right of the Company or any Affiliate to terminate the
employment or consulting relationship of any eligible employee, consultant,
optionee or holder of Stock Awards under the Plan with or without cause, at any
time and with or without notice. In the event that a holder of Stock Awards
under the Plan is permitted or otherwise entitled to take a leave of absence,
the Company shall have the unilateral right to (i) determine whether such leave
of absence will be treated as a termination of employment or relationship as
consultant for purposes hereof, and (ii) suspend or otherwise delay the time or
times at which exercisability or vesting would otherwise occur with respect to
any outstanding Stock Awards under the Plan.
10. ADJUSTMENTS UPON CERTAIN TRANSACTIONS.
-------------------------------------
(a) In the event that any dividend or other distribution (whether in
the form of cash, Common Stock, other securities, or other property),
recapitalization, reclassification, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, liquidation, dissolution, or sale, transfer, exchange or other
disposition of all or substantially all of the assets of the Company, or
exchange of Common Stock or other securities of the Company (other than pursuant
to the conversion of convertible securities), issuance of warrants or other
rights to purchase Common Stock or other securities of the Company, or other
similar corporate transaction or event, in the Board's or the Committee's sole
discretion, affects the Common Stock such that an adjustment is determined by
the Board or the Committee to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan or with respect to Stock Awards, then the Committee or the Board
shall, in such manner as it may deem equitable, may make the following
adjustments to the Plan and with respect to any or all of the outstanding Stock
Awards:
8
a. the number and kind of shares of Common Stock (or other
securities or property) with respect to which Stock Awards may be granted
under the Plan (including, but not limited to, adjustments of the
limitations in paragraph 3(a) on the maximum number and kind of shares
which may be issued under the Plan and in paragraph 4(b) on the maximum
number of shares subject to Stock Awards which can be granted any person in
a calendar year),
b. the number and kind of shares of Common Stock (or other
securities or property) subject to outstanding Stock Awards, including by
providing, either by the terms of such Stock Awards or by action taken
prior to the occurrence of such transaction or event, that upon such event,
such Stock Award shall be assumed by a successor or survivor corporation,
or a parent or subsidiary thereof, or shall be substituted for by similar
Stock Awards covering the stock of a successor or survivor corporation, or
a parent or subsidiary thereof, with appropriate adjustments as to the
number and kind of shares and prices, and
c. the grant or exercise price with respect to any Stock Award.
(b) In the event that the Board or Committee adjusts any or all of the
outstanding Stock Awards by providing that such Stock Awards shall be assumed by
a successor or survivor corporation, or a parent or subsidiary thereof, or shall
be substituted for by similar options, rights or awards covering the stock of a
successor or survivor corporation, or a parent or subsidiary thereof, the Board
or the Committee may, in its sole discretion, determine that the transfer of the
optionee's or other holder's employment or consulting relationship to such
successor or survivor corporation or a parent or subsidiary thereof shall not
constitute a cessation of the optionee's or holder's employment or consulting
relationship with the Company or an Affiliate for the purposes of paragraph
5(g).
(c) Any adjustments made by the Board or the Committee under
paragraphs 10(a) and 10(b) shall be final, binding and conclusive on all
persons.
11. CHANGE OF CONTROL.
-----------------
(a) Notwithstanding anything to the contrary in this Plan, in the
event of a Change in Control (as hereinafter defined), then, to the extent
permitted by applicable law:
(i) the time during which Stock Awards become vested shall
automatically be accelerated so that the unvested portions of all Stock Awards
shall be vested prior to the Change in Control and (ii) the time during which
the Options may be exercised shall automatically be accelerated to immediately
prior to the Change in Control. Upon and following the acceleration of the
vesting and exercise periods, at the election of the holder of the Stock Award,
the Stock Award may be: (x) exercised (with respect to Options) or, if the
surviving or acquiring corporation agrees to assume the Stock Awards or
substitute similar stock awards, (y) assumed; or (z) replaced with substitute
stock awards. Options not exercised, substituted or assumed prior to or upon
the Change in Control shall be terminated.
9
(b) For purposes of the Plan, a "Change of Control" shall be deemed to
have occurred at any of the following times:
(i) 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
(ii) at the time individuals who, as of December 9, 1997,
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, 1997, whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at 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, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) shall be, for purposes of the Plan,
considered as though such person were a member of the Incumbent Board; or
(iii) 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 of the sale of all or substantially all of the assets of the
Company; or
(iv) the occurrence of any other event which the Incumbent Board
in its sole discretion determines constitutes a Change of Control.
12. QUALIFIED DOMESTIC RELATIONS ORDERS.
-----------------------------------
(a) Anything in the Plan to the contrary notwithstanding, rights under
Stock Awards may be assigned to an Alternate Payee to the extent that a QDRO so
provides. (The terms "Alternate Payee" and "QDRO" are defined in paragraph
12(c) below.) The assignment of a Stock Award to an Alternate Payee pursuant to
a QDRO shall not be treated as having caused a new grant. If a Stock Award is
assigned to an Alternate Payee, the Alternate Payee generally has the same
rights as the grantee under the terms of the Plan; provided however, that (i)
the Stock Award shall be subject to the same vesting terms and exercise period
as if the
10
Stock Award were still held by the grantee, and (ii) an Alternate Payee may not
transfer a Stock Award.
(b) In the event of the Plan administrator's receipt of a domestic
relations order or other notice of adverse claim by an Alternate Payee of a
grantee of a Stock Award, transfer of the proceeds of the exercise of such Stock
Award, whether in the form of cash, stock or other property, may be suspended.
Such proceeds shall thereafter be transferred pursuant to the terms of a QDRO or
other agreement between the grantee and Alternate Payee. A grantee's ability to
exercise a Stock Award may be barred if the Plan administrator receives a court
order directing the Plan administrator not to permit exercise.
(c) The word "QDRO" as used in the Plan 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 a Stock Award to an interest
in such Stock Award relating to marital property rights or support obligations
and (ii) that the administrator of the Plan 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 Plan is not a plan described in section 3(3) of ERISA.
13. AMENDMENT OF THE PLAN.
---------------------
The Board at any time, and from time to time, may amend the Plan.
Rights and obligations under any Stock Award granted before amendment of the
Plan shall not be impaired by any amendment of the Plan, unless: (i) the
Company requests the consent of the person to whom the Stock Award was granted;
and (ii) such person consents in writing.
14. TERMINATION OR SUSPENSION OF THE PLAN.
-------------------------------------
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on December 9, 2007. No Stock
Awards may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any Stock Awards granted while the
Plan is in effect shall not be impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Stock Award was granted.
15. EFFECTIVE DATE OF PLAN.
----------------------
The Plan shall become effective as determined by the Board.
11
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Amgen Inc. for the
registration of 1,500,000 Shares of Common Stock of Amgen Inc. and to the
incorporation by reference therein of our report dated January 21, 1998, with
respect to the consolidated financial statements of Amgen Inc., included in its
Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
May 29, 1998
